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Monday, August 13, 2001 - 09:14 pm  It does seem, pending further research, that there is very little precedent dealing with the notion that the 2nd amendment protects a right of the states to arm themselves. Maybe not in court precedent (certainly I don't know of any), but read the debates during the state consitutional ratifications. It's all about the states arming themselves and (almost -- PA minority report includes amendments offered to disrupt ratification, but ignored during the their actual convention) nothing about about packing heat for personal protection of hunting. That said, the most specific precident is Madison's response to Henry -- that the power to arm the militia the militia was not limited solely to the federal goevernment....
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| Tuesday, August 07, 2001 - 01:34 pm Whatever state defense forces are, it seems unlikely that they are the militia of the Constitution, since they explicitly can't be called up by Congress as per the terms of the militia clause. It does seem, pending further research, that there is very little precedent dealing with the notion that the 2nd amendment protects a right of the states to arm themselves.
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| Saturday, July 28, 2001 - 01:57 am Jimmy Wales (Jwales) Friday, July 27, 2001 - 05:42 pm - and - Jimmy Wales (Jwales) Friday, July 27, 2001 - 06:41 pm You amy doubt option 4, but it seems to be the case (or lack of any case). I mentioned Cruikshank and there is Perpich v DoD -- wich deals with the National Guard, not a "state defense force." But I haven't found any that deals with question of state defense forces (as defined in 32 USC 109).
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| Friday, July 27, 2001 - 06:41 pm Let me sum up what I'm trying to say, a bit more concisely. Have there been any cases in which the Second Amendment has been used to overturn a Federal law as an unconsitutional constraint on the states right established by the 2nd? Contrariwise, are there cases in which the 2nd Amendment was held _not_ to impact on the ability of the Federal government to regulate the militia?
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| Friday, July 27, 2001 - 05:42 pm Right! Well, surely there have been some court cases dealing with this type of issue, and that's what I'm interested in. Are there court cases which explicitly support the notion that the meaning of the 2nd Amendment has to do with the inability of the Federal government to disarm these 'state defense forces' or the like? Certainly, Congress has set this to be policy, in the US Code you have stated. Could they set policy otherwise? This particular statute, for example, says that the Federal government cannot "call, order or draft" the members of the state defense forces into the armed services. Why did Congress deem it necessary to legislate that way? I have to say, I think this is a very interesting question, because it approaches the "states rights" theory from a direction you don't normally see. There are several possibilities: 1. There are court cases explicitly dealing with this issue, in which the court has held that the 2nd Amendment would prevent the Federal government from drafting members of the State defense forces. 2. There are court cases explicitly dealing with this issue, in which the court has said the opposite, i.e. that the 2nd Amendment doesn't have anything to do with this issue. Either of these first two would cleanly impact the historical argument about the meaning of the 2nd. 3. There are mixed court cases, none giving us a clear idea of how the court has viewed the relationship of the 2nd to the question of "states rights". 4. There are no court cases at all dealing explicitly with this issue. I sort of doubt that this fourth example is the case, simply because over the years, the relationship between the State and Federal governments have been visited by the courts so many times in so many contexts. It would be interesting to take a look at some cases which specifically impact this issue.
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| Friday, July 27, 2001 - 02:34 pm re: Jimmy Wales (Jwales) Saturday, July 21, 2001 - 04:45 pm If we move beyond court cases and directly to the US Code, we come to the "state defense forces" in 32 USC 109(c): In addition to its National Guard, if any, a State or Territory, Puerto Rico, the Virgin Islands, or the District of Columbia may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces. There's the direct answer to Patrick Henry -- the states may, if they desire, form their own units. (The Code doesn't create the right, it merely recognizes it.) Such units are not subject to being called into national service (although individual members are subject to the draft according to the same rules as non-members). In this sense, if a state has it's own units (and several do, including Virginia, Texas and Connecticut -- although Virginia's and Texas's served solely as unarmed support units and Connecticut's consists of the purely ceremonial "Governor's Guard"), such units would remain under the state's control. But once again, they are under control of the civil authority -- commanded by the governor and established by the legislature (and paid for completely by the states -- no federal funding).
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| Saturday, July 21, 2001 - 04:45 pm I'm not so sure we can read Presser v. Illinois in such a way that it sheds much light on the particular question at hand, but I'll reread it to be sure. What I'm suggesting is that the "usual cases" we all know and love (Cruikshank, Miller, etc.) don't generally cover issues regarding disputes between the Federal government and the States regarding militia. I know, for example, that during the era of the Civil Rights movement, the National Guard was called out against the Governors of Alabama and Mississippi. (And probably other times that I don't know about.) The most famous example is the National Guard forcing George Wallace to step down when he "stood in the schoolhouse door" at the University of Alabama. O.k., that's what happened. Surely there were lawsuits at some point which established that the National Guard could be used against a state government. Then to what extent, really, does the 2nd Amendment protect the right of the states to arm a militia? There must be lots of detail about this, and I just wonder. I'll keep researching. (Also I'll go back and reread Presser to refresh my memory and see if I have anything to add to your analysis and comments.)
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| Friday, July 13, 2001 - 07:45 pm Jimmy Wales (Jwales) Tuesday, July 10, 2001 - 05:22 pm One theory of the meaning of the 2nd Amendment is that it primarily or only protects the state militia from disarmament by federal law. If that theory is correct (in contrast with a more individual rights reading), then we should be able to find some evidence of it in either early or more recent court rulings. First' let's clarify the claim that the second is a militia amendment. It assures the federal government will not disarm the militia (and that the state may provide for arming itarm it if the federal government does not) -- but that, in any case, the militia does not exist apart from civil control, meaning the federal and state government, in accordance with Art 1, Section 8, para 16 of the Consitution. In that that context it assures both the states and the people that they will have their militia -- under the control of a a "civil power", as the state's own constitutions of the time noted (see State Declarations of Rights relating to Arms. Court rulings? You bet. Miller clearly limits the protects to some relationship to a well-regulated militia, but even earlies, in Presser v. Illinois116 U.S. 252 (1886) the court not only held that the Second was not an constraint on the states' control over their militias, but that: It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. In other words, the states may regulate their militias up to the point it deprives the federal government of *their* militia. The second assures the states that the government may not regulate the states out of theirs. You asked solely about court cases. There are two from the Supreme Court of the United States.
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| Tuesday, July 10, 2001 - 05:22 pm One theory of the meaning of the 2nd Amendment is that it primarily or only protects the state militia from disarmament by federal law. If that theory is correct (in contrast with a more individual rights reading), then we should be able to find some evidence of it in either early or more recent court rulings. Are there Supreme Court rulings regarding the militia? Do these rulings cite the 2nd Amendment as a reason to prevent or prohibit disarmament by federal law? If not, then we have to seriously question the historical revisionism leading to such a view.
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