On Sun, 4 Nov 2001, Reese wrote:
States are not prohibited from having a militia, the National Guard is an organized militia, until such time they are federalized, at which point they fall under the Army's Chain of Command.
No, the can't except in cases of invasion.
Why do you think all or nearly all states have a National Guard, if it is prohibited as you claim?
Technically the National Guard is unconstitutional. It does not qualify as the 'militia' and ONLY the army, navy, and militia have been authorized (technically an independent air force is also unconstitutional without an amendment) by the Constitution (or Congress through an amendment) to date. The Constitution & Gun Rights: It's bigger than the 2nd alone This document is an ongoing project where I take comments and observations from others and post their questions and my replies. Some of this material is old and some is new. It is intended to demonstrate that when the Constitution as a whole is applied to sensitive issues it in fact provides clear direction on the limits and character of the relation between the the three arms of the government of the United States; federal, state, and individual. I assume that anyone commenting on this document is giving their explicit permission to include them with my replies unless otherwise noted. I would prefer that all discussion take place on the Cypherpunks public mailing list. I will submit all my responces to submissions to that list. If you don't wish to discuss this issue in a public forum please do not respond to me. I have no interest in private discussion on this topic. This country is going through a crisis of civil liberties and a fundamental loss of faith in the tenets of democracy. It is becoming more fascist (ie public management of private property) on a daily basis. In the near future it could become completely socialist (ie public management of public property and elimination of private property) in the name of the greater good. The belief that the needs of the many outweigh the needs of the few or the individual is in direct conflict with both the spirit and words of the Constitution. Legislative, judicial, and executive branch decisions and actions speak to this on a daily basis. One of the most controversial topics is the private ownership of weapons and the duty of the government to regulate the same. The current discussion on both sides is limited solely to the 2nd Amendment. Unfortunately this is a stillborn position because it misses fundamental issues and questions. To address those I have listed each of the relevant sections of the Constitution and the Bill of Rights. Perusal of these make it clear that the right of the individual to own and bear arms with no interference or regulation is a fundamental right of every American. This right is justified by a long history of abuse by political systems of the individual as well as a continous sequence of physical assaults on the citizenry. It is worth making special note that the Presidential claim to executive privilige regarding the use of military forces without Congressional permission is unconstitutional (see Article II). The Constitution clearly states the President is the commander in chief of the armed forces only after they have been called into action. And only Congress may call them into action unless it can not be conveined. The President of the United States is not in the chain of command of the military forces without specific authorization from Congress. Until such time as that is given only Congress has the authority to direct and organize military activities. This means that the President may direct military forces only until Congress convenes. At that point Congress must decide whether to agree to commit the forces. Amendment 2, 4, & 9 provide in and of themselves sufficient grounds to find any federal involvement in the purchase, possession, or operation of a weapon to be unconstitutional. One of the most specious argumenst in this discussion is that 'the people' in the 2nd Amendment is not to be construed as meaning the individual. However, it is clear from the Constitution itself and other amendments, such as the 4th, that this simply is not so. The term 'the people' means that the decision regarding such issues is to be made at the level of the individual. In other words whether a particular individual agrees to participate is completely voluntary. THE CONSTITUTION OF THE UNITED STATES We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. [ Note that the intent of the Constitution, and by extension those who represent us, is to provide freedom of choice (i.e. liberty) for each individual (i.e. 'ourselves and our posterity'). This means that any claim that 'the people' does not refer to the individual and their right to make individual choices is specious and misdirected. ] Article I Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; [ Note it says 'the militia', not plural and definitely not state oriented since states are prohibited from raising or supporting troops. Note that it specificaly directs Congress and the President to use the Militia for internal issues only. ] To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; [ This says Congress organizes, armes, and disciplines the militia - again nothing to do with the states and no implication of plurality. The only job the states have is appointing officers. One can argue over the wording of the training since it is ambigous. I interpet "..., reserving to the states repesctively, the appointment of the officers, .." as being a single clause and not carrying over to "... authority of training ...". ] No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. [ This last paragraph is of special importance. It directs the states to provide for their self defence during times of truly imminent danger. There is also the implication of immediate responce. Yet the state can not keep troops or even collect taxes to this end. This also excludes the Militia since it is under federal control and can't be used by the states without federal consent. In other words they are not to base their responce solely on state or federal employees. The implication is that each state is directed to provide for individual firearms ownership. It's also worth noting that if the US is actualy invaded and the federal forces are activated the states are still directed to raise forces independently of the federal forces, and these forces would be under state control and operated in parallel with federal forces. In addition this delegates the states to independant resistance even if the federal authorities surrender. It is a fundamental recognition of the states independence. [1] ] Article II Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. [ This last paragraph describes how the President takes control of the military. It is only after Congress agrees to release the authority. Normal day to day training and patrol duties are responsible to Congress only. ] Article IV Section 4. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence. [ Note this says that federal forces can not be employeed within a state without the explicit permission of the state government during periods of domestic violence. In other words "rioting in the streets" is not a sufficient condition for forced federal involvement through martial law. The state legislature is the prefered authority unless it can't be convened in time. In that case the state governor can make the decision but as soon as the state legislature is convened he's out of the picture. This means that states always have the option of refusing federal assisstance. This means the various forced tax and funds refusal threats of the federal government are unconstitutional. This means states have the option of opting out of any federal gun control regulations. ] THE BILL OF RIGHTS The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution; Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely: Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. [ This one really speaks for itself once you've understood the rest. They are actualy speaking of *two* seperate entities - the single federal Militia *and* the individual citizen. They are *not* one and the same. ] Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [ Our current society has a problem with what is understood to be 'reasonable'. This is a strong indication that we need to create a new amendment to better describe the interface, expectations, and limits of actions regarding state representatives and the individual. The only other option is to eliminate laws respecting consensual crimes such as individual drug use, abortion, etc. Arguments based on 'community standard' are inherently broken. It implies the community has some homogenious standard, there is certainly no indication of authority to sample the populate with respect to this question. The religious and free speech and press clauses prohibit it. It further prohibits laws and acts respecting law enforcement based on statistical averages, profiles, mass searches, bumper stickers, public statements not inciteing something worse than domestic violence, etc. Note that this *does* give Congress the option of training the militia for operations involving nuclear, biological, or chemical attack for domestic use. (I believe that any such use must not allow weapons for other than personal defence to these federal forces. No tanks, bombs, missiles, etc.) You can't use an individuals beliefs as a basis for law. In that case, with no sample, the only question is would any citizen object to the behaviour? It is obvious the question must be answered in the negative since you have such an example at hand from the community. This effectively eliminates consensual crimes. If an activity does not cause physical harm to a person, their property, or a voluntary public trust it can't be made against the law at the federal level. (I don't believe a coersive public trust can exist under our Constitution. You can't punish a state or throw a citizen in jail because they object to participate in federal programs.) ] Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [ This one is really short and sweet. If anybody has a right then everybody has the right. There are no womens rights, gay rights, or minority rights; only human rights. This amendment prevents the government from even addressing what a persons rights are by the simple expedient that it prevents the federal or state government from even enumerating what they aren't. In other words unless the authority over some activity is proscribed in the Constitution the question of jurisdiction and decision are the individual states. It also means that the Supreme Court is prevented from using rulings that are of the enumerable type. In other words, simply because there isn't a directive in the Constitution is not sufficient reason to deny the individual the right of expression, or choice of execution. So arguments such as 'assissted suicide" isn't a right because there is no indication in the Constitution are specious and deny recognized fundamental individual rights in the 1st Amendment. So, in the case of gun control if there is a question at the federal level of jurisdiction (ie "What is meant by 'the people'?) the decision goes to the states and their individual constitutions. If it's not covererd in their individual constitutions then individuals in those states may make the decision on an individual basis. The Constitution is designed to fail-safe under questions of federal authority to the states or the individual. If Congress can't provide a delegate entry in the Constitution per the 10 th. it must suggest a constitutional amendment to the states. The current question of gun control has only two outcomes. Either individuals have their right to own guns recognized or the Congress and the state legislatures are required to mold an amendment to clarify the 2nd Amendment. The states can always stop federal aquisition of new authority at this point by simply refusing to put the amendment up for vote. At this point the states have a tacit admission of their supreme authority in such questions. ] Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. [ This amendment severely limits what the federal level of authority covers. It requires the Congress to provide a delegate, one or more sentences, in the Constition for all laws (and I believe for all suggested bills as well). it further specifies that in questions of dispute the decision goes to the individual states and their republican governments (ie state constitution). If the indvidual states don't regulate the activity it is up to the individual to participate voluntarily. The United States of America is a balkanized collection if independant states who voluntarily give up limited authority to the federal level, they must explicitly agree to this to become a state. ] The above document was submitted to the Cypherpunks Distributed Remailer, it has been expanded since that time. As a result I received various replies. My comments on the replies are included below along with quotes from the replies to clarify context.