this post was submitted on 30 Nov 2023
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You're using a fairly recent definition of the word, and not the constitutional meaning. Today, "militia" generally means "a privately organized paramilitary unit". You're suggesting a publicly-organized unit; that would more properly be described as an "army".
But this is not at all how the Constitution uses the word. We know this from the contemporary writings of the founding fathers, the principles of democracy, and from contextual clues within the constitution itself.
First of all, "militia" is never used in the plural. There is only one militia considered by the constitution. That might seem pedantic, but it is an important concept. It does reference "parts" of the militia, but the second amendment does not say that the security of a free state is provided by a "part" of the militia.
Second, compare and contrast the powers Congress has over "armies", the "Navy" and the "militia". Congress can "raise" armies, and "provide" a Navy. They can create these military entities. They don't create the militia. They "call forth" the militia. The militia continues to exist, whether Congress chooses to call it forth or not. Eliminate Congress, eliminate the constitution entirely, and the militia still remains.
Third, "democracy" is the fundamental idea that the source of power is "the people", not "the government" or "a king" or "a god". "Militia" refers to the capacity of the people to use physical force.
Find me some.
Use of the word "militia"
This is some sovereign citizen level pedantry. For anyone reading this who doesn't know, sovereign citizens are people in the US who, to quote wikipedia:
Claiming that the founders deliberately didn't use the plural form "militias", and that this use suggests that they believed in one immutable, intrinsic militia in which all Americans are members, is a ridiculous leap.
State is also singular here. Are we to take it that the founders believed being a member of the state was also an intrinsic aspect of a person, such that-
-While they were trying to extricate themselves from a state and form their own nation?
In addition to the lack of a plural, you also believe (apparently) that by saying they "call forth" the militia, the founding documents and others are implying that it is preexisting, and that they simply summon the militia, like some demonic entity. Here's Alexander Hamilton, writing in the Federalist Papers:
The militia is made up of the yeomanry, which are a land holding class between the gentry and serfs. Why would it be necessary to state that the militia was made up of the yeomanry, if he was aware that it was made up of everyone, from birth? Maybe because it's a loosely organized fighting force that's formed as necessary to defend the country, and not a permanent state of being.
So your first two points are really the same point- that there are small turns of phrase in the founding documents, which you wish to interpret to fit your preconceived views.
Onward!
Democracy, yadda yadda
Sure. You could say it that way.
A militia is a way in which a people use force. So is an army, or an air force, or a navy. Some of our citizens volunteer to commit violence on our behalf, and we pay them (ideally) and send them forth to do it.
The way in which you use the words here, and the fact that something so obviously, trivially true is part of your main three points, tells me that they have some ideological weight for you. These are applause lights.
Unfortunately, I don't clap just because you said the right words.
And finally, the real problem
Even if we take all of your weirdly specific pedantry at face value, even if we decide that the Militia (note the capitals, and the singular usage) is something you are born into- it's still not true.
Because we're not all in the militia, are we? I doubt the founders would have considered women, children, blacks, or native americans to be part of the Militia. Moving forward to the present day, we have a wide variety of pacifists and rugged individualists, who would object, respectively, to harming others for any reason at all, or harming others for anyone but themselves.
Who gets to decide where the lines are for this intrinsic Militia-ness? The founders? The founders would have excluded lots of people. The militia themselves? A huge chunk of the left in US politics would exclude themselves from that label.
You?
I don't trust anyone who grounds their opinion on such a pivotal part of American politics in their obscure, pedantic interpretation of the founding documents.
Sorry.
You quote, but you do not realize: the nation they were establishing had no gentry, and no serfs. The "yeomanry" he was referring to was "everyone" in the "new world."
No. An Army is a way in which the state uses force. Likewise with a Navy or Air Force.
I agree that they did not expect Congress to explicitly call forth women, children, blacks, or Indians. However, If they saw a woman using a weapon against at invading Redcoats, or at criminal attackers, or at an insurrectionist, they would have described her actions as those of the militia.
I would point out that the current legislative definition (10 USC§246) includes "children" (age 17) as well as certain women (female members of the National Guard), and excludes neither blacks nor native Americans.
The legislative definition is a subset of the constitutional meaning. Congress cannot include you in the legislative definition unless you already fit within the constitutional meaning.
No such line exists. Everyone is the militia.
That "chunk" deludes itself.
What about the violently insane? Felons? Are they in the militia as well? Actually, why limit it to adults? I'm sure plenty of 14-year-olds fought and died in the revolutionary war. What about the currently incarcerated? The mentally disabled?
Yes, yes, yes, yes, and yes. All five of the people you mentioned are in the militia. Three of them have been stripped of their right to keep and bear arms through due process of the law, while the other two are deemed incompetent. They retain the right to keep and bear arms, but they are also wards of a legal guardian, and cannot independently exercise that right.
Congress could, indeed, provide for calling forth 14-year-olds, if they deemed it necessary and proper to do so. The other 4 are subject to judicial rulings that may impact their ability to comply militia provisions. We certainly have called forth inmates to serve various roles where a need has arisen.
The laws governing use of force are not suspended for any of them; all five can use force under the law.
Why are the violently insane and violent criminals not permitted to carry firearms? I'm not asking for the current legal justification, but why you believe they shouldn't be permitted to carry firearms (assuming you do believe that).
In addition, do you believe that a five year old should be allowed to carry a concealed handgun, with their parents permission? I'm not talking about rarely, and in the country, but regularly, in crowded urban areas.
I can simplify the first part for you. The Constitution refers to "violently insane" and "violent criminals" as "the accused". To understand my opinion, make the appropriate substitutions, and read the constitution.
For the second part, a ward's exercise of liberties and property are subject to their guardian's judgment. The guardian is expected to act in the best interests of the ward. The guardian is also charged with protecting the rights of the people from infringement by the ward. The role of the guardian, then, is to prudently permit and restrict the liberties of their ward. This certainly includes the keeping and bearing of arms.
Wardship is restricted to those deemed legally incompetent, either by presumptive statute or by judicial decree.
I can't find anything about the accused losing their right to bear arms. Can you direct me to the relevant passage? Or can I take this to mean that you support the violently insane and criminals owning and carrying firearms?
So should it be legal for me to decide that my five year old son can carry a 9mm with him when he goes out to play with the neighborhood kids?
Can you get to whatever you think is your point sometimes soon?
Sorry for the delay- I didn't get a notification for some reason.
The point is that the violently insane and young children are not allowed to keep and bear arms because they may harm others and because they're incompetent, respectively. You may still consider them part of the militia in some philosophical sense, but practically, they don't have the right described in the second amendment.
If we can restrict a child's right to keep and bear arms because they are incompetent, then the precedent exists to do the same for adults with no training.
If we can restrict a violently insane person's right to keep and bear arms because they may harm others, then the precedent exists to do the same for sane people who may harm others.
Obviously, adults are not children, and they are mostly sane. However, they can still be just as incompetent, and they can still accidentally kill others during arguments. The analogy holds.
No military in the world would deploy a fighting force without mandatory weapons training, and a militia is not "well regulated" if it's members don't know how to use their weapons.
Ah, I see the issue. You're using the word "incompetent" to describe a skill level. I am using the word incompetent to describe the legal capacity to comprehend the consequences of one's own actions.
A child with olympic class training and shooting skills, who regularly outshoots police and military sharpshooters in competitions, is still a ward of their parents; they are still deemed unqualified to manage their own affairs. They are still presumed incapable of contemplating the consequences of their own actions, and must be supervised by a parent or guardian. This presumption does not allow them to independently keep and bear arms, yes. (They do have the right to keep and bear arms, contingent on the approval of their guardian: their guardian can arbitrarily deny them access to guns; the state cannot)
But, this same presumption also denies them the right to vote, and independent exercise of all other rights and privileges. That'd what "wardship" means. The state cannot interfere with their rights, but their guardian can. (Britney was made a ward of her father long after she became an adult. Her father had legal control of her finances. The government did not have the right to keep her from buying things, but her guardian did.)
At whatever point you end their wardship and statutorily grant them independence from their former guardians, you also grant them independent exercise of their right to keep and bear arms.
A court was involved in depriving the "insane" person of life, liberty, or property. They were formally accused, tried, convicted, and sentenced in a court of law, while enjoying all the rights of the accused, including the presumption of innocence.
Courts have previously found that certain people should be jailed indefinitely, or even killed. Those findings against those particular people are not "precedent" for arbitrarily jailing or executing the general population.
Have you taken a basic civics course? Your proposals directly conflict with the basic, fundamental principles of our form of government.
I am asking, again, for the reason why laws exist, and again, you're describing the laws as they currently exist. Why is it necessary for children to have wards? Why do courts restrict the right to bear arms for violent criminals and the insane?
If all children were born with the knowledge and experience of adults, we would have no concept of ward and guardian.
The law follows from the reason, not the other way around.
I have given you the reason: children are presumed incapable of understanding the consequences of their actions. That is a rebuttable presumption, in cases of emancipated minors or certain heinous criminal charges.
Adults are presumed capable of understanding the consequences of their actions. That presumption is also rebuttable, in cases of severe mental deficiency.
Rebutting these presumptions is done in a court of law, not the legislature.
Assuming the opposite (that children are capable, and adults incapable) violates all sorts of egalitarian principles. It's a non-starter.
A militia with no training and no weapons qualification is not a well regulated militia. I've provided examples of existing cases in which we limit the rights of the incompetent until they become competent.
It follows that the right to keep and bear arms is not absolute, and required training before owning and operating a weapon is a reasonable constraint on that right.
No you haven't. You've conflated "skill level" with "ability to comprehend the consequences of one's actions". I called you out on this a few comments up the chain, but you are continuing to make the same error.
Let's talk about the insane criminal you discussed earlier. Let's say that before he was declared insane, he was a Marine sniper. Put a rifle in his hands, and he could hit a running deer at 500 yards, or an enemy's skull at 2000. But, he developed schizophrenia, climbed a clock tower, and started shooting at the figments of his imagination. Extraordinary "competent" marksman, completely "incompetent" citizen. His ownership of firearms is deeply problematic, because he does not comprehend the consequences of his actions. The court may find him guilty, or it may find him not guilty by reason of insanity. Either way, they aren't taking his guns because he is unskilled in their operation; he's losing them because he does not comprehend the consequences of his actions.
Hellen Keller was blind and deaf. She needed considerable assistance in performing routine, daily tasks. She had absolutely no skill with a firearm. But she was not mentally deficient. She was quite intelligent, a prolific author. Completely "incompetent" as a marksman, but a perfectly "competent" citizen, her ownership of firearms is unproblematic. She may not have been able to hit the side of a barn unless she was inside it, but she could have owned and managed a gun store if she had wanted to. Hellen Keller would not be stripped of her gun rights, because she remained capable of comprehending the consequences of her actions.
The insane criminal was intended to be an example of an adult without the right to bear arms, not an example of incompetence. The example intended to illustrate incompetence was the one of the children, and I think it still stands. The difference between a child who doesn't understand the consequences of their actions and an adult who does, is one of experience- in everything, rather than some specific thing. And obviously, even particular children who have extensive experience are still constrained by the law, because it's a blunt instrument.
So I'll rephrase:
A militia with no training and no weapons qualification is not a well regulated militia. I’ve provided an example in which we limit the rights of the incompetent until they become competent. It follows that the right to keep and bear arms is not absolute, and required training before owning and operating a weapon is a reasonable constraint on that right.
The insane criminal was deprived of "life liberty or property" by the courts, not the legislature. They were accused, prosecuted, convicted, and sentenced to being stripped of their right to keep and bear arms, among other punishments and sanctions.
I have repeatedly reminded you that the child does, indeed, have the right to keep and bear arms; that the state does not strip that right from the child. The state is not the entity depriving the child of the right to keep and bear arms. The child's guardian is the one ultimately determining whether the child may or may not exercise that right.
The state cannot prohibit a guardian from taking their ward to a gun range and teaching them to shoot, for example. The closest they can come is requiring the guardian to ensure the safety of the ward, but that requirement can be met without a total deprivation of the right to keep and bear arms.
Your "child" example fails because it is not the state infringing on the right, but the parent.
The only way you can permissibly infringe on the right to keep and bear arms is through Due Process. You can achieve this under our current constitutional provisions as follows:
The untrained individual does not lose their right to keep and bear arms until they are convicted of not attending the mandated militia training.
If you want to be able to prosecute someone for carrying without having been trained, you will need to amend the constitution.
A militia with no training and no weapons qualification is not a well regulated militia. I’ve provided an example in which we (we being some combination of the state and guardian) limit the rights of the incompetent until they become competent. It follows that the right to keep and bear arms is not absolute, and required training before owning and operating a weapon is a reasonable constraint on that right.
Agreed, but that only helps you if the powers of the guardian transfer to the state once the wardship is dissolved. But they don't. They transfer to the ward. The state never held the power to infringe on the ward's rights to keep and bear arms. Only the guardian had that power, and that power is transferred to the (former) ward upon dissolution of the wardship. The guardian held the power to determine if and when the ward will exercise their right to keep and bear arms. The former ward is now the person with that power, not the state.
The "guardian" of an adult is not the state. The "guardian" of an adult is the adult themselves.
You have a second problem, which I have mentioned multiple times but you have not yet seemed to have grasped. If you want to impose a training requirement for gun ownership, it will be a legislative act. None of the prohibited persons you have discussed have been deprived of their rights through a legislative act. The criminals and the insane have been stripped of their rights by the courts, not the legislature. "The state" (prosecutor) was forced to overcome all the rights of the accused and prove beyond a reasonable doubt that the accused is not capable of handling a weapon safely before a judge can justify depriving the accused of the right to keep and bear arms.
The constitution explicitly permits the courts to infringe on "life, liberty, and property" rights, and regulates the circumstances under which it can do that. The constitution does not grant that same power to the legislature.
You will need a constitutional amendment to proceed. How would you write that amendment?
Please rewrite this sentence without using any form of the word "competent". You have consistently conflated two separate meanings of the word. You have demonstrated no comprehension of the distinction between these two senses. One of those two meanings is relevant to the deprivation of rights, the other is completely irrelevant, as I have explained several times before. Before continuing with this discussion, I will need you to rewrite that sentence in such a manner as to be able to distinguish between the two meanings of "competent".
Well, I'm bored.
You're deliberately misunderstanding what I'm saying, and there's a limit on how many times I'm willing to repeat myself with slight variations.
You can have the last word, congratulate yourself on "winning", and we can both move on.
Instead of repeating yourself with slight variations, you could try actually addressing the criticisms I am putting forth. For example, the criticism that children and the insane have their rights limited due to their inability to comprehend the consequences of their actions, rather than their skill level in handling firearms. You haven't once even acknowledged that distinction, let alone challenged it.
You have consistently failed to comprehend the separation of powers, specifically, those powers conveyed to the legislature, and those conveyed to the judicial branch.
You have consistently failed to comprehend the differences in the rights of the people, the rights of the accused, and the rights of the convicted.
You have completely failed to comprehend the concept of "militia". You have not read 10 USC §246. When you attempt to make a point about the militia, you consistently describe "armies" and "soldiers" instead.
You failed to address any of the counter examples I provided, such as the schizophrenic Marine sniper, the olympic-class minor, or Hellen Keller as a gun store owner.
The problems isn't that I misunderstand you, deliberately or otherwise. The problem is that you lack fundamental knowledge of the concepts you are attempting to discuss, and you are making numerous major errors in law, logic, and rhetoric.
Slight variations aren't going to help you. You need major alterations to your philosophy. Your frustrations aren't with me, but with your own limitations. You can do better.
Neat