this post was submitted on 14 Jul 2024
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Alright, how about this: fail to register with selective service, and young men cannot get or renew a driver's license or financial aid for college. They can even be charged with a crime, all for failing to follow one of the very few regulations imposed upon the militia.
How can they be punished for not fulfilling their militia duty if they are not militia?
I started by asking "who is the militia?", nothing more. The legislature told me who they thought was the militia (every able bodied male citizen aged 17 to 45) and I asked why women weren't included. Then I realized the definition the legislature used was not the definition used in the Constitution, and I allowed it to expand to as broad a concept as Congress would have access to: everyone.
Your interpretation of "no training, no militia" is not unreasonable as a practical matter, but we are talking about constitutional law, constitutional rights. If there are any rights attached to the concept of "militia", liberty demands we assume the broadest reasonable interpretation; if there are any infringements attached to the militia, the narrowest definition possible.
"Well regulated militia" is not the "gotcha" that hoplophobes think it is.
This interpretation is inconsistent for a couple reasons. First, selective service is for the Army, a federal institution; Militias are directed at the state level, so it's not really appropriate to conflate selective service with a Militia. This might be a rational argument if selective service was for the National Guard.
Further, if Militia and People are synonymous as you suggest, you're implying that everyone who isn't registered (women, children, men over the age of 25) aren't People.
Again, Army ≠ Militia. The Selective Service Act is for conscription into the standing Army, which is a constitutionally distinct entity. Additionally, selective service didn't exist until 1917.
Yes, once again I repeat that you are deciding what conclusion you want to reach, and then selecting definitions and justifications that support your conclusions, because the established definitions don't. This is extremely poor logical form.
This doesn't make rational sense. The definition is what it is, and the rights and infringements thereon lay where they lay. Picking and choosing to minimize responsibilities and maximize benefits to suit your personal disposition is an abomination to legal consistency.
I defer to Johnson's Dictionary when nitpicking definitions of words used by the founders, as it was literally the definitive authority at the time. Militia is defined as "The trainbands; the standing force of a nation", and since 'trainbands' is an archaic term, I'll include that it is defined as "The militia; the part of a community trained to martial exercise". Eliminating that little loop, we arrive at the accepted definition of Militia at the ratification of the Constitution: the standing force of a nation; the part of a community trained to martial exercise.
'People' is simply defined as "A nation; these who compose a community". The Militia is a part of that community, specifically the part which is trained to martial exercise. The Constitution underwent many revisions, poring over every word. When they meant People, they wrote People; if they wrote Militia, they damn well meant exactly "Militia", as literally defined. Any other interpretation is willfully disingenuous.
It's a prefatory clause, intended to communicate vital information. If the information included in that clause was not important to the interpretation of the text, it would have been excised during revision. No other amendment justifies itself that way, despite the fact that they all have justifications. The only honest conclusion is that the founders intended that clause to be Included for a material purpose.
Claiming that this one clause in the entire document was included for no real reason and can be safely disregarded is, again, willfully disingenuous and an abomination against our most sacred foundations.
There is no means other than the militia clauses to call forth a person and compel them to serve in the army. It is because they are members of the militia that they can be called forth to serve in the army. Without the militia clauses, the 13th Amendment would prohibit such an act.
While we are on the subject of armies, take a look at Article I Section 8 clauses 12, 13, and 14.
*Congress has the power to "raise" an army. They can create one.
Congress has the power to "provide" a Navy. They can create one.
Congress does not have the power to "create" a militia. The militia is presumed to exist; Congress can "call it forth".
Nope. Addressed that long ago: Selective service is a legislative provision, and is not the "well regulated militia" referred to in the constitution. Congress has provided a means for calling forth only part of the constitutional militia. They are empowered to provide for calling forth the entirety of the militia; they have not made such a provision. The largest group that they could provide for calling forth tomorrow ("the people") were members of the "well regulated militia" yesterday.
It's called the rule of lenity. It is a natural extension of the principles of "presumption of innocence" and "burden of proof". When law, regulation, clauses, or other terms, conditions, or requirements can be rationally interpreted multiple ways, the applicable interpretation is the one that most favors the person claimed to be in violation.
I made no such claim. Quite the contrary, the clause was included for a very important reason.
Agreed. And for that, I'll take you back to Article I, Section 8, clauses 12, 13, and 14. Congress is empowered to create armies and a navy. The Second Amendment tells us that this created military is not the entity charged with providing security of a free state. That security is provided not by the government or any other government creation, but by the militia; the people.
I will note that the following clause is the operative one: the right is not granted to the states or the militia, or to those members of the militia who have been called forth. The right is specifically guaranteed to the people. It makes little sense to guarantee the right to the people if the people aren't the militia.
I think I'm about done here, so I'll try to sum it up. Basically, you sound like this:
Again, your line of reasoning ignores the "trained" aspect of a Militia, and implies that everyone who isn't subject to conscription isn't People.
If you want to suggest that the state-based National Guard should train all adults in "military exercise", including the responsible operation of firearms, you'll hear nothing but support from me. I believe that everyone, leading into adulthood, should receive training roughly in line with the concept of JROTC. I believe this, or comparable training, should engage nicely with the 2nd Amendment.
I do not believe that every unhinged yahoo having access to firearms is desirable. Driver's Ed is actually a great parallel. If you cannot demonstrate that you are capable of responsibly operating a vehicle, you are not permitted to do so, at least not in public spaces. If you cannot demonstrate that you are capable of responsibly wielding a firearm, you should not be permitted to do so, at least not in public spaces.
If your objection, as tends to be the case, is "Then the government will feel too comfortable limiting the check popular firearm ownership places on despotism!", this isn't the 18th century. The standing Army can easily overwhelm any grassroots opposition.
If your objection is something else not addressed, I will be happy to respectfully consider and engage with it.
10USC246 is narrower than the constitutional meaning. It is the legislative definition of "militia", and defines two classes of that militia. Your "trained" qualification accepts only one of those two classes, not both. Your definition conflicts with even the legislative definition, let alone the broader constitutional meaning.
You invented the "trained" qualification. Pulled it straight out of thin air, with no constitutional, legal, contemporary, or even semantic basis. I didn't ignore the "trained" part. I flat out rejected it.
Now, if you will accept a minor change from "trained" to "trainable", your definition expands to include both classes of the militia as defined in 10USC246, and becomes reasonably close to the constitutional meanings of both "militia" and "the people".
As you have used the term, "adults" is synonymous with the constitutional meaning of "militia". Any time you read the word "militia" in the constitution, you can substitute the meaning of the word "adults" as you have used that term.
...
Agreed, but the sine qua non of my driver's Ed amendment was "squirrels". In guaranteeing the right to "squirrels" instead of those who will be providing the safe operation of a vehicle, the amendment I provided is nonsensical. The driver's Ed requirement only makes sense when the right is afforded to the same entity that will be exercising it.
I pulled it straight out of the dictionary, where the word "Militia" is defined.
You're pulling this straight out of thin air, so I flat out reject it.
This is going nowhere. If the words were synonymous, they wouldn't have bothered to use the word Militia. Full stop. I'm not going to continue to entertain your fantasies of what the drafters really meant, inventing your own definitions of words that have literal written definitions.
And I demonstrated, repeatedly, how that definition is flawed, and does not reflect how the word is used in either the constitution or legislation. Your definition specifically excludes certain individuals that the law (10 USC 246) specifically includes. You have provided no argument as to why 10 USC 246 - an act of Congress - should be rejected, and replaced by the opinion of Mr. Johnson, a private individual.
While you may have other routes forward, the only options I can see to further your argument are to adopt a definition that is not fundamentally incompatible with 10 USC 246, or you can demonstrate that this part of 10 USC is unconstitutional, and incompatible with the constitutional meaning.
Frankly, your best option here is to concede the point.
And your interpretation continues to imply that everyone who isn't a male between 17 and 45, or a female in the National Guard, is not People. You keep dancing around with your definition of Militia while conveniently ignoring that your claim was that Militia = People and the words are interchangeable. That is my sole contention.
You can either concede that your claim was wrong, or you can affirm that you believe that men 17-45 and women in the National Guard are the only citizens who count as People. There is no alternative.
I have addressed this many, many times.
The constitutional meaning of "militia" is very, very broad. The constitutional meaning of "militia" is so broad that it is effectively synonymous with "the people". This meaning cannot be changed except through the amendment process.
The legislative meaning of militia is much broader than most people realize, but much narrower than the constitutional meaning. The legislative meaning is codified as 10 USC 246. This meaning can be expanded or shrunk at the will of Congress. It cannot be expanded beyond the Constitutional meaning. Whoever Congress wants to add to the legislative meaning tomorrow was already within the constitutional meaning yesterday.
And just for shits and giggles, there is also Mr. Johnson's meaning of "militia", which is narrower than either the Constitutional meaning or the Legislative meaning. It is so narrow that I don't need to demonstrate the broad constitutional meaning to defeat that claim; I can defeat it even with the narrower (but simpler) legislative meaning.
And just for the sake of completeness, there is also the term "adults" as you have used it above, which is clearly broader than the legislative definition, and seems reasonablyncomparable to both the Constitutional meaning of "militia" and "the people".
False dichotomy. An alternative is to demonstrate that your understanding of my claim is faulty. Which it is. You are raising a strawman interpretation of my claim.
My claim is that the constitutional meaning of "militia" is synonymous with "the people", which is true.
Your strawman interpretation is that the legislative meaning of "militia" is synonymous with "the people", which is, of course false.
I readily concede that your strawman interpretation is false. Fortunately, the validity of my actual claim is not at all affected by your strawman.
A totally unsubstantiated claim which you have made multiple times with zero evidence.
Dance for someone else, it's not even entertaining anymore.
Your own position on training "adults" is all the evidence I need in this debate. I accepted your concession.
Dance dance dance. This was no debate, this was a rich demonstration of your ability to deviate, distract, and entirely miss the point. And you still can't present a shred of evidence. Clownshow.
The current legislative definition, and the fact that Congress is free to expand it, gives me everything I need. I don't even need to resort to the myriad contemporaneous statements by the founding fathers describing the militia as the "yeomanry" or the "whole body of the people.
Your acceptance of a training program that would apply to everyone upon reaching adulthood was an unexpected piece of evidence, but a welcome one.
And, lest we forget, this whole argument rests on the complete lie that the right to keep and bear arms is contingent on militia "service". It is clearly guaranteed to "the people."
No, this entire argument is based upon the fact that you claimed, and continued to claim, without evidence that Militia and People are constitutionally synonyms. And here again you dance around that nonsense claim, trying to refocus on anything else because, I've again, you have absolutely no evidence to support this.
You convincing yourself of this nonsense is not evidence. Your personal interpretations mean exactly nothing to me.
You don't seem to be offended by the concept, just the specific vocabulary. Your use of "adults" is perfectly consistent with my meaning and intent.
But not with what you said, and not with what you're currently saying.
Personally, I disagree with the definition in 10 USC 246; I believe the "unorganized militia" should still imply training, even though the members may not presently be active members of the National Guard. The right to bear arms should fall under the same kind of regulation as operating a vehicle: subject to training and demonstration of competence. But it is what it is.
But this is all secondary to the core issue of the claim that Militia = People, constitutionally speaking. Again, rectangles and squares. So long as the definition of one excludes some members of the other, no matter how large the subset, they are not synonymous. The specific vocabulary is crucial to legal interpretation, and the central point of my contention.
Agreed.
While the legislative definition does this, the constitutional meaning does not exclude anyone. TCase-by-case circumstances might render specific individuals unsuitable for being called forth under the militia clauses, but they are excluded by executive or judicial action, and not by definition. The constitutional meaning does not exclude anyone.
Under the constitutional meaning, the most heinous criminal in death row is still a member of the militia, and can theoretically be called forth, even though no executive officer would ever allow him to serve such a purpose. He is not deprived of the right to keep and bear arms due to not being in the militia. He is "deprived of life, liberty, or property", including RKBA, through "due process" in accordance with the 5th amendment.
Buddy, you keep just saying that like it's some b ontological fact. I've repeatedly asked you for evidence to support that and you keep shifting focus to avoid doing so.
Until you can provide concrete, tangible evidence to support that interpretation, I'm not interested in hearing anything else. Show me documentation, not just your own assertions. No more dancing.
10 USC 246 already covers the entire male population (at some point in their lives) as well as some specific females. There is nothing preventing Congress from opening it up to the remaining females. That is concrete, tangible evidence to support my interpretation.
The Federalist Papers, specifically #29, discuss the militia as being comprised of "the great body of the yeomanry, and of the other classes of the citizens". It refers to a "scheme of disciplining the whole nation"
While most of the paper discusses "the formation of a select corps of moderate extent, upon such principles as will really fit them for service" (aka: The National guard) it also discusses militia obligations on "the people at large":
Congress does not see fit to maintain such assemblies today, but they did exist back then, and they could be reinstated at will tomorrow. Any member of the "people at large", is thus also a member of the militia.
10 USC 246 does not cover males under 17 or over 45, these are part of the People who are not legislative Militia. Hypotheticals are not evidence.
The Federalist Papers are not the Constitution. If you draw a distinction between the constitutional and legislative, I'll draw a further distinction against commentary.
I am a proponent of disciplining the whole nation, and have no problem whatsoever considering the disciplined portion to be unambiguously a part of the Militia. If Congress does indeed reinstate assembly to properly arm and equip every member of the People, I will promptly concede. But hypotheticals are not evidence.
When you look at their whole lifetime, 10 USC 246 covers all males, and some females. More than 50% of the people.
They are not, but they certainly do provide insight into the language used in the constitution, as well as the intent of the authors.
Congress is not empowered to alter the meaning of the constitution. If Congress chooses to discuss a term used in the constitution, their usage does not alter the constitutional meaning, but only establishes a legislative meaning.
Congress cannot redefine "speech" to mean "feces" and then claim that the first amendment only protects the right to take a shit.
The distinction I draw between legislative and constitutional meanings clearly and directly arises from the limits to Congressional authority. Congress does not have the power to change the meaning of militia; their use of the term "militia" cannot be considered authoritative.
There is no such distinction for the Federalist papers. The same people who wrote the constitution also wrote the Federalist papers. The papers were written for the specific purpose of explaining and promoting the Constitution, by the very people who wrote it. Their explanations in the papers were the basis for the states to ratify the constitution, so even if the authors meant something else (they didn't), the states accepted and enacted the constitution in the context of the papers.
Basically, your distinction is arbitrary, capricious, and rejected.
Such discipline is only constitutionally permissible under the Militia clauses.
That portion being the "whole nation".
What if I argue that Congress found a different way to ensure the population was "properly armed and equipped" that didn't require annual assembly?
What if Congress found a method by which so many members of the militia would be armed that assembly would not be required to verify?
Congress did establish the Federal Firearm Licensee system, which regulates the commercial sale of firearms to the general public. It can be reasonably argued that the FFL system was enacted but just under their power to regulate interstate commerce, but also under their power to arm the militia.
Does that satisfy your pedantry?
Substantially less than 100%. The terms are not synonymous.
Some of the authors. If it was sufficiently representative, it would have made it into the Constitution itself.
This still does not establish the constitutional meaning. You have notably not provided sufficient evidence to establish a constitutional meaning.
Correct. The states accepted and ratified the Constitution, not the Federalist Papers.
The "whole nation" is not disciplined. I was quite specific: if, and only if, the "whole nation" is disciplined, it is appropriate to consider the "whole nation" to be synonymous with the Militia.
"Properly" being the functional term here. "Armed and equipped" is not the same as "Properly armed and equipped".
If you don't like being held to pedantry, don't make flippant categorical equivalences of precise legal language.
10USC246 is substantially less than 100%, yes.
But, "male" can be dropped from that definition tomorrow. Which means that although females didn't meet the legislative definition, they did meet the constitutional definition yesterday. They had to, or Congress couldn't add them to its narrower definition.
Non sequitur.
That argument devolves into absurdity. You can make the same argument for each and every word in the constitution. By prohibiting any sort of context by which to derive the meaning of language, not a single word in the constitution has any meaning whatsoever.
It is only through contemporary context that the meaning of a word can be derived, and there is no body of work closer than the Federalist papers by which to gain such context.
You shouldn't have conceded the rest of that and focused on "properly", because I can accept that condition. I fully agree, "properly" is the functional term.
Article I Section 8 clause 18 empowers Congress "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"
Congress determines the "proper" way to arm and equip the militia, and this is the method they have chosen.