Saturday, September 14, 2013

The National Guard being a creature of Federal law.

But it's not me who came up with this--it's actually in the Constitution.

Article I, Section 8, clause 16 not only gives congress the power to arm the militia, but it also gives it the authority to organise it. And given that the Supremacy clause (Article VI, Paragraph 2 of the Constitution) states that "the Laws of the United States which shall be made" according to the Constitution are the Supreme Law of the land, that means that if the Congress says the National Guard is the milita: Tough shit, pal, it's THE MILITIA.

I'm not going into the usual bullshit about 10 USC 311 and the unorganised miltia, but that is the equivalent of saying having a draft card makes you a member of the US military.

So, unless you are seriously suggesting the dismantling/radical reorganisation of the United States Military, then you are out of luck.

Even then, you have got to be willing to be enrolled (enlisted) to claim the right.

As Joseph Story said in his Commentaries on the Constitution 3:§ 1890:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

Bottom line--if you have a problem with something being "a creature of Federal Law"--then you really have a problem with the US Constitution.

But, as I like to say, some people who claim to defend the Constitution need to study up on what exactly they claim to be defending.


  1. "The right of the people"--if the Founders meant the Second Amendment only to apply to people enrolled in a militia, why not just say so?

    But have you yet answered my question? Since you insist that our rights are whatever Congress and the courts say they are, don't you now have to agree that the Second Amendment is an individual right, unconnected with military service?

    This is the problem with having no prinicple outside of consensus. The consensus sometimes goes against what you want.

    1. ""The right of the people"--if the Founders meant the Second Amendment only to apply to people enrolled in a militia, why not just say so?"

      The did say so with the first 4 words.

    2. Mike,

      Did not the people in the militia supply their own arms at the time?

      Given this, it would seem that this law protects the people's right to arms because of the importance of their having arms to bring if they were called to militia service. This also seems to be the view of Story who speaks of his concern about how to keep the people properly armed if they are not being called up to drill.

    3. You could look at it that way. But, riddle me this, Batman. How do you get from the individual right to own a gun, whether or not that's limited to militia service, to the right to carry concealed?

    4. Mike,

      Thanks for admitting you can at least see the line of reasoning there, even though you don't agree with it--though I hope you can be persuaded eventually.

      Regarding your question, a full discussion could take a while and might be something interesting to make a new post and start a new thread on.

      In brief, I'll say that I find the argument that the bearing in mind here is employing them in a militia capacity such that there is some latitude for permitting schemes when it comes to carry rather than it being one of the explicitly named aspects of arms rights that "shall not be infringed."

      This being said, one of the reasons I suggested we might want to move this discussion to a new thread is because there might be some differences in how we understand that last paragraph--I'm not agreeing with Laci that one must be a member of the militia to have the right to own or bear arms, I'm saying that what we are told shall not be infringed is the right to own arms for militia service and the right to bear them (carry them around outside your property, use them, etc.) in pursuit of such service (this would include both their employment in defensive battle and their employment in training, etc.).

      My support for concealed carry stems from my belief that part of the inherent right to life that we all have is the right to use proportional force to preserve our safety and lives. Because of this right, I think that it's imperative that the government place as few restrictions as possible on the carry of weapons so that people can use the guns they own effective tools to defend themselves against armed assailants who are likely to use the most effective tools they can get their hands on. Carry is not necessarily a part of the 2nd Amendment, per se, but it is related to it and other rights we accept.

      A good guide, I think, would be the approach taken by the framers of the Tennessee Constitution which says that the RKBA shall not be infringed, but adds that the legislature has the right to regulate the wearing of arms with a view to prevent crime.

      Here's the place to make your arguments as to whether it's better to allow concealed or open carry, why you think forbidding carry in a place or type of place is appropriate, etc. So long as you approach the issue by dropping the "collective rights" stuff and accept that their is a non-infringeable right to keep the arms and that you need a good reason to restrict the carry of them (intermediate scrutiny would be good for trust), you might find that we're more open to the discussion.

      When we hear so many gun controllers talk about removing all private guns, we know that when those individuals suggest carry restrictions, they're just trying to slowly arrive at their final goal--hence our wariness of and opposition to most suggestions about restrictions on carry.

      Hopefully this gives you an idea of where I'm coming from and gives us a jumping off point for a more productive discussion if you or others feel like further discussing any of the topics more deeply, either here or in a new post.

    5. Mikeb, you mock open carry, but here you imply that concealed carry isn't an expression of the right. And you wonder why we don't trust you.

    6. T., whenever you start out a comment with, "IN brief,..." my brain freezes up.

      Greg, you lost me about the trust thing. Yes, I mock open carry and yes, I don't think even the wildest stretch of your gun rights includes concealed carry.

    7. My response in this post:

  2. I posted the English rules of coma's and phrases for the idiot professor(?) which I doubt he is, telling how the sentence should be read. It is one sentence separated by a coma. Again, NRA Greg seems to think our legal rights are made up by him, or anyone's interpretation. Sorry, lying NRA dude, but Congress and the Constitution are the processes by which we make laws and define rights.

    1. The problem is that this is not a modern English grammatical structure.

    2. The problem is the professor(?) tries to read the sentence in modern day understanding. Not much of a professor(?) when he makes such an obvious mistake.

  3. Laci,

    The point I was raising is that the National Guard is a new type of hybrid unit. It is not the "militia" in its original sense.

    The government was finding that they were too constrained, by the Constitution, in their use of the militia, so they organized National Guard units wherein the soldiers were dual members of the militia and the Army.

    When they call up these guard units for federal service, the reason they they can use them in whatever war they want is that they are calling them up in their capacity as federal soldiers, not as the federally called up Militia. Most states still have state level militias that could be federalized in the case of invasion, but which can't be called up and sent over seas.

    You had talked about how militias were intended to allow us to keep the standing army small since tyrants love to make use of standing armies. Hence the irony that you would say that the Second Amendment is limited to protecting the rights of federal soldiers in the National Guard to have weapons--federal soldiers in a part of the armed forces that Congress created to work around a Constitutional limit on their use of the militia so that they and their presidents could . . . make use of these troops in whatever wars and whatever places they wanted.

    As for Congress' power to organize, they have stated that the entire male citizenry between certain ages is the "unorganized militia" subject to being organized if needed. Yes, the National Guard is the only part they have organized right now--organized, and also required to become federal soldiers as well so that they have the freedom to use them however they want.

    They could organize other militias, but why bother--they couldn't have as much fun playing with them; and then there's that apathy mentioned in the Story quote.

    An interesting question would be regarding the state guard units and other units that comprise militias of the states that are not part of the National Guard. Since they have not been organized by Congress, are you going to say that they too should be disarmed? That would seem to work against the idea that a militia system is supposed to supplant our need for a massive, expensive army that the hawks can't resist playing with.

    1. Do you have a problem with the fact that the Senate is now an elected body rather than an appointed one?

      Anyway, according to the Constitution, the Militia can be organised according to Congress.

      As I said, if you have a problem with this, then you need to amend the constitution rather than write screeds that sound like you have been taking too much home made meth.

    2. No problem with the election of Senators--that was handled by Amendment as it should be.

      My issues with the Guard are not with it being improperly formed--as far as I can tell, the law was properly passed and the Constitution is complied with.

      The issue I'm raising is one regarding the conception of the Guard as a unit where people wear a militia hat and a federal soldier hat--I think that it was unwise to construct it in that way because it made it too easy to go to the war du jour as we have for the past several decades.

      I'm also raising it to point out that such a construction also works against your stated purpose for the militia under the Constitution--reducing the power inherent in having a large standing army.

    3. Perhaps you need to lay off whatever you've been taking that renders you unable to understand rational statements you disagree with sufficiently to make counterpoints to the actual issues raised.

      And, if you didn't communicate solely in irrational screeds, you might realize that other people are not always responding in kind.


  4. Finally, there's your concept that a person must be a member of the organized militia in order to have any right to arms. This bucks hundreds of years of history in which free men, subject to militia service, had the right to own arms that they would use in such militia service. It bucks the language of the amendment that says, paraphrased, "Because militias are damn important, the right of the PEOPLE to arms shall not be infringed." It especially bucks your quote of Story:

    "How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights."

    Look at that first sentence especially. Story was worried about how to keep a sufficient number of the people properly armed if they were not being organized and called up for periodic drills. The apathy and contempt for participation was leading to a situation where broad swaths of the country were unarmed, or, even if armed, poorly trained. This meant that either the country would be unprotected from invasion, or it would have to rely on a standing army which would be too much of a temptation for those in power to use. The history of the 20th century shows what happened when we came to rely on that standing army rather than the militia system Story wanted to preserve.

    And since it didn't sink in before, Yes, I'm in favor of a dramatic restructuring. Make the common folk drill as part of the militia so that they will be capable of military service if we're ever attacked. If people don't want to have their gun in their home, let them store it at the armory. Organize an honest to God militia rather than a hybrid creature like the National Guard--that way politicians have to get volunteers to join the army if they want a foreign war rather than merely forcing the militiamen into becoming federal soldiers. Shrink the standing army to a smaller size capable of bringing militia soldiers up to speed as regulars when needed and capable of handling the maintenance and security, etc. of federal installations and equipment.

    We'd have more money freed up; Congress and presidents could start wars just because they feel like it since they'd have to raise the cash to fund their expansion of the army, and what nation would want to try to invade a country where such a large part of the citizenry was trained in the use of arms?

    1. Not at all, to properly be a militia one need to be part of the enrolled body.

      If you would spend more time trying to learn than showing off your ignorance, you would find that the unorganised militia is a reserve force which can be drafted into service if necessary.

      As such, it has no rights.

      If you want actual rights, then you need to enlist/enroll in the militia.

    2. Doubling down on the foolishness since you don't have a real leg to stand on eh?

    3. Feel free to disarm yourself, Laci, but a well regulated Militia ain't gonna defend your ass virginity WHEN your friendly neighborhood mob of AK47 wielding ex-KGB skinheads on PCP bust decide to rape, rob and pillage your town.

    4. Laci, explain why the document says, the right of the people. Why would intelligent writers such as the Founders use a phrase like that if they meant enrolled members fo the militia only?

    5. "Finally, there's your concept that a person must be a member of the organized militia in order to have any right to arms."

      T., when you say "any right to bear arms," that's different from The Right to Bear Arms which you guys insist is a god-given, natural-human and Constitutionally protected Right with a capital R, that shall not be infringed.

      You have a right to own a toaster as the free citizen you are. That's the same kind of right you have to own a gun. But you want to stand behind this exaggerated and made-up, at least until Heller, Right in order to have as few restrictions as possible and maximize convenience regardless of the harm done.

    6. And on what basis could the Government tell me that I cannot own a toaster?

      Regarding the main basis of your comment, there's a more recent post where I've made a comment regarding this statement that the individual right has no history Pre-Heller, so I'd suggest that we discuss that matter there rather than trying to keep the discussion straight in two places.

    7. Laci says,

      "Not at all, to properly be a militia one need to be part of the enrolled body."

      I would suggest to you Laci that anyone who buys and trains with guns, any gun, has just enrolled in the potential militia. Whether knowingly or not enrolled, a call to arms for a voluntary armed force of a gun owner and non gun owner would be heard. The key here is voluntary. Not all gun owners would volunteer, and there would be non gun owners who could volunteer as support in areas that need it.

      The same applies to military volunteers. Some join the different forces not to fight, but for education. But when called to fight, flake out instead. Either way, your ass BELONGS to the government when you signed up.

      Out here we call that "All hat and no cattle". Just because you wear the hat does not make you a cowboy. But almost every cowboy wears a hat.

      Just because you bought the gun does not make you a volunteer for the militia, but you are a potential militia member for buying one.

      Since there was never a "proper enrollment" for a militia, you sign up as a volunteer and receive instructions from the organizer who leads the militia, when and if a militia is ever needed to be organized and called upon. Without personally armed citizens, you could never call for an armed militia. That is putting the cart before the horse. You must have a armed citizens first before you can call up a voluntary militia.

      So, lets remove the commas and restructure the second civil right.

      "The right of the people to keep and bears arms must not be infringed in order to have a well regulated militia for the security of a free state."

      It still says the same thing as the militia is still understood to be a voluntary force. Otherwise if you remove the commas the amendment makes absolutely no sense. It can not be read properly without the commas unless you restructure the phrase used.

    8. "And on what basis could the Government tell me that I cannot own a toaster?"

      They already have. The toaster you use has had to meet all kinds of safety requirements, electrical standards and all the rest. No plastic used in it could give off toxic gasses when hot. The way you look at it, extremist that you are, you'd demand the right to own one that does not meet all those standards.

      But, you don't care about toasters, your thing is the gun.

    9. Mike,

      That was a list of safety requirements the government puts on the manufacturers of toasters, restricting what toasters they can sell to me and others.

      Those laws don't tell me that I can't own a toaster, that I need permission to buy one, that I can't build one. Frankly, they don't tell me that I can't build a toaster out of toxic plastics for my own use, though I'll be punished if the toxic fumes hurt someone.

      I actually don't have a problem with product safety standards existing, so long as they're rational. Any problem I have with federal regulations in various areas are based on a view that they are either capricious or irrational, on a the idea that we should have amended the Constitution to add an enumerated power for Congress to make such regulations rather than using this to further stretch the Commerce Clause, or the idea that Congress should do its enumerated jobs rather than delegating them to the Executive branch and concentrating too much power in it.

    10. No problem as long as they're rational, huh? Well some people think it's irrational for you to want an AR-15. The government has effectively banned toxic toasters, they could do the same with the AR.

    11. Light bulbs and toasters, OH MY!

      "So, lets remove the commas and restructure the second civil right."

      Lets change the 2nd amendment to say what YOU want it to say. Thanks for showing that the comma makes all the difference in the understanding of the 2nd amendment, but sorry, you cannot just remove it.

    12. Mikeb, explain how a firearm can be functional without also being a weapon. Again, we see that your real goal is to remove all firearms from private hands.

    13. The AR-15 isn't toxic! It shoots just fine, without poisoning it's user.

      And I guess you've never heard of proof marks. Firearms have had them for centuries. Nobody wants guns to blow up in their face.

    14. You're still taking a huge jump from requiring that people use safe materials to manufacture products to claiming authority to ban entire products for certain classes of people, in spite of Constitutional protections of the ownership of arms for use in the militia.

    15. Mike, it seems Jim has your number too. Toasters.

      I mentioned the government ban on certain light bulbs, you mentioned the government ban on certain toasters. Now he mocks us both. See why I don't like sides? This is one example.

      Both were banned for producing something toxic. The toaster for its fumes. The light bulbs for green house gas. Both for the assumed protection of the public.

      But neither produce anything toxic just sitting there. Just like the AR15 doesn't do anything just sitting there. When the AR15 is used however, the only thing it produces is what the person holding it determines. Good reasons in the hands of a good guy, or bad reasons for the bad guy. The gun itself doesn't make that determination. So what is all the phobia surrounding the gun? Isn't it the user that you should be concerned about? Isn't the same for ANY firearm? Since the AR15 does not function any differently than any other semi-auto hunting gun or semi pistol, what is so special about targeting a certain gun, the way it looks?

      Should we target certain furniture, cars, houses, colors of paint, fabrics or even people just because we don't like the way they look? We all have a choice. Some like the looks of certain trucks/cars that I find revolting. There are some guns I wont buy just because I don't like the looks of them either, but function exactly like the ones I do like the looks of. But should that lead to a ban of either?

      Please explain the target of certain guns like the AR, AK or even others that look similar.

    16. Assault weapons bans are supposed to prevent people from owning weapons that have a high (military) capacity for killing. That's the reason, whether you agree with it or not, and whether you can name inconsistencies in its application or not.

    17. Yes, that is goal you hold forth, but saying that you are going to ban a product, in all forms, because it can be misused with devastating results is quite different from saying that if you are going to make a product, you have to comply with certain regulations so that it doesn't poison or otherwise harm users who are using it properly.

      As for the issue itself, you have said that you would like to see a ban based on California's, but you haven't specified your changes you would like to see, or why we should have either the tests under California law, or the tests you might utilize in the law you base on theirs. You leave us arguing against a vapor--if we attack California's, you can just say, "We need something better than that," but you don't specify, so there is nothing to say for or against your concept.

      Why not work on the issue, read up on the guns and ammo, and make your proposal if you think such a law is so necessary?

  5. Jim says,

    "Thanks for showing that the comma makes all the difference in the understanding of the 2nd amendment, but sorry, you cannot just remove it."

    Thanks for agreeing with me. Seems, at least you do understand the comma cant be removed for the phrase to be understandable in its current structure.

    My example was that if the comma were to be removed and to keep the same meaning, then the phrase structure has to be changed.

    Jim says,

    "Lets change the 2nd amendment to say what YOU want it to say."

    Actually the restructure didn't change the meaning, it says the same thing without the commas, but I thought you got that? It doesn't make it say what I want it to say. The meaning is the same.

  6. Your example is wrong. You must be taking English from the fake professor NRA Greg.

    1. Nope, its not wrong and nope, I didn't take any classes from Greg. But I do understand English and structure. In fact any 4th grader already understands proper structure.

      Everyone out of step but you Jim?

    2. Right, I'm the only one who disagrees with your position. HA HA HA HA HA HA
      Sorry to burst your bubble, but tens of millions disagree with your "interpretation."

    3. Got evidence of these "tens of millions" Jim? And how do you find it to be "my" interpretation? Also, how is it "my" position? Its the Bill of Rights after all. Its not my writing.

      Ok, give me an example of another way to phrase the second amendment without commas and without changing its meaning.

      Show me "Jim the professor" rather than "Jim the heckler". Show me how your going to burst my bubble. Or are just going to insist on remaining a elementary schoolyard bully.

    4. Because YOU said so. Do you always say things, then say that's not your position.
      Light bulbs. HA HA HA HA HA HA

    5. What, no toaster?

  7. So I guess you insist on remaining to be a elementery school yard bully. No Jim the professor, eh?

    1. Maybe Jim is a professor. It would certainly explain why so many graduates have no clue about most things. Like being able to name the president. I love those "Jaywalk" bits on Leno; proving we have an educated(?) idiot society. Not to mention fake professor doesn't even know the meaning of "push." I never thought this site would turn out to be a comedy site, as far as the daily NRA dupes are concerned.

    2. Jim, let me get this straight, you are a professor and your graduates have no clue? Is that an admission? I have never heard anyone so openly admit that they are a failure at teaching.

      But given the responses from you, I shouldn't be surprised.

    3. Open dishonesty. Anyone else want to read my comment and show where I said I was a professor? Try that wild west question again. You have flunked so far. Must be a student of the fake professor.

    4. Is there another Jim here? Did you just not refer to yourself as "Maybe Jim is a professor"?

      Do you suffer from DID (dissociative identity disorder)? Check your meds man. Seriously.

  8. Can I say something about the militia phrase of the 2A? It's ambiguous.

    1. In a way it is a bit ambiguous Mike, as the militia clause is in there to be a foreseen need. If needed that is and for the reason of security. But the right to keep and bear for the individual is a solid phrase that means what it says.

      The right belongs to the individual and for any reason the individual sees fit and that also includes the militia purpose. Any reason that the individual sees fit means for survival (hunting for example) or personal security (to defend oneself from attack) or other sporting purposes. It IS NOT a protection for unlawful use and those conditions are also spelled out in other parts of the constitution. It is the same today as it was the day it was written.

    2. Ambiguous, but it was included. If you guys were right, it would have been excluded.