Gotta bear in mind that "militia" is used in several different senses, without the writer or speaker apparently being aware of it...
Militia = the people. (disregarding for the moment that we're not always including women, infants, etc., that the framers used "the people" broadly rather than precisely). But this doesn't QUITE have the meaning the word is sometimes given..... after all if militia equals people then every government, good or bad, has one.
Militia = an armed people. Answers point above. Also explains why the framers added well regulated to describe an objective. Not just millions of people with arms, but them with training and organization as well.
Militia = the government organization or system.
And then there's the ambiguity of "United States" as in militia of the US.
Today of course US = largely, the national government or the nation as a whole, as quite distinct from the States.
Then, and until after the civil war, united states was a plural -- the US are, not the US is. Can refer to the nation or to the states taken as a whole. So in the matter below, a question might be whether Congress is trying to define the national militia, or to define the militias of the fifty states (and, for that matter, can be there a militia of the nation separately defined from the militia designated by each of the 50 states).
a) Several recent posts have addressed the definition of the militia --most seem to cite a definition similar to the one inserted by Congress in the Dick Act of 1903 -- i.e., all male citizens 18-44 years of age who are not members of the federal military.
I would argue ,however, that Congress overstepped it's constitutional power when it presumed to define and limit the militia in the Dick Act.
b) Re the definition of the militia, George Washington University has a research project to collect primary source documents covering the activities of the First Federal Congress --see http://www.gwu.edu/~ffcp/aboutffcp.html . This project's findings have been published in the multi-volume "Documentary History of the First Federal Congress, 1789-1791".
At the beginnning of Volume IV(Legislative Histories--Helen Veit ed, 1986) of the Documentary History, there is a detailed log for development of the Bill of Rights , with citations to contemporary newspaper articles, Maclay's Journal,etc for detailed accounts of Congress' deliberations.
c) The Histories indicate that: (1) The deliberations on the Bill of Rights explicitly started with consideration of petitions from the States arising out of the Constitution's approval process (2) Several of those petitions (New Hampshire?, Virginia?) explicitly state that the militia is "composed of the body of the people" (3) The First Congress decided not to be limited solely to the State petitions in drawing up the Bill of Rights (4) The text of the Second Amendment submitted by the House to the Senate explicitly stated that the militia was composed "of the body of the people" (5) The House explicitly voted DOWN a resolution to limit the militia to those people "Trained to Arms" (e.g., National Guard ) (6) The Senate deleted the phase "composed of the body of the people" but left no reason re why it did so
d) There is very little information on Senate deliberations --my understanding is that the Senate tried to preserve it's lofty image and mystery by only reporting it's final results and not how it reached the results -- One reason why Maclay kept his Journal. However, the Histories do not cite any info from Maclay re the Senate changes to the Second Amendment. In a July 3 2002 post to H-OIEAHC (Early American historians forum), historian R.B. Bernstein noted : "Unfortunately, as Prof. Higginbotham notes, we know precious little about the debates in the House and the Senate (the latter because of an inconvenient and frustrating [to us] illness afflicting Senator William Maclay, whose valuable diary is our principal source for knowing what went on in the Senate), and even less about the debates in the several states on ratification of the amendments we know now as the Bill of Rights. Gaspare J. Saladino, John P. Kaminski, Richard Leffler, Charles Schoenleber, and their colleagues at the DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION are hard at work to complete that fine project, and will include one volume (I think) collecting, editing, and annotating whatever sources there are concerning the states' ratifications of those amendments." (Ref: http://h-net.msu.edu/cgi-bin/logbrowse.pl?trx=lx&list=H-oieahc&user=&pw=&month=0207 )
e) In the MAY 8, 1792 Militia Act, Congress did not presume to define the militia --and thereby exclude people. It merely said that every " free able-bodied white male citizen" 18-44 years of age had to serve in the militia. Ref: http://www.constitution.org/mil/mil_act_1792.htm--scroll down midway in page to May 8 act
f) Thus, I think that the bulk of the historical evidence indicates that the militia circa 1790 was understood to include all citizens.
g) If Congress can define which citizens are members of the militia, then it can exclude population groups -- e.g, it can copy the Nazi's "Draft Law for the Regulation of the Status of the Jews" and exclude from military service anyone..
"a) who adheres to the Jewish faith, b) whose parents or all grandparents adhered to the Mosaic faith, even if they or some of them later abandoned the Mosaic faith, c) who is a descendant of those named under a) and b) "
More likely, Congress might wrongly try to exclude all those who adhere to the Islamic faith. History suggests that exclusion of a group from a nation's military is a precursor to discrimination, persecution, pogroms,etc.
h) An interesting question is whether Congress can apply "Don't Ask Don't Tell" to homosexuals in the militia. When Grethe Cammemeyer, a highly decorated female Army Colonel, was dismissed from the National Guard on discovery that she was homosexual, she filed suit in 1992 and was reinstated. Ref: http://www.cammermeyer.com/bio.htm
i) Congress and State Governor's obviously control the militias in the sense of deciding who stays at home, who engages in training exercises, and who fights in a war.
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