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  • A Conservative Case for the Militia Clause in the 2nd Amendment

    Posted by TM Lutas on January 14th, 2016 (All posts by )

    The traditional modern conservative opinion on the 2nd Amendment diminishes and almost entirely dismisses the opening clause, “A well regulated Militia, being necessary to the security of a free State”. I believe this to be an error that leaves leftists an opening to prolong the Second Amendment assault forever. That opening needs to be closed. A substantive construction of this clause that makes sense to the general public is necessary to put down the gun control movement permanently.

    But first, a little Latin. Crimes can be generally divided into the categories “malum prohibitum” and “malum in se”. Malum in se are crimes that are universally considered wrong or immoral that all just societies prohibit. Malum prohibitum are crimes that a legislature creates and are only crimes because they told us so. Tyrannies thrive by multiplying malum prohibitum crimes and turning honest citizens into fearful subjects that can be seized by the law at any time. Militias only go after malum in se crimes and are thus useful to the people who want a just society but useless to any sort of tyrant.

    The militia’s uselessness to tyrants is its greatest selling point and one that the colonists implicitly understood because none of the abuses of King George were ever enforced by the militia (if there are examples where this actually happened, please share in comments). With that understanding, the introductory clause makes perfect sense to us all and gives us a common sense reason why even today, it’s important to have a strong militia so that our security is, as much as feasible, in the hands of people who will not sweat the small stuff. In fact, it’s truly necessary for the security of a free state.

    The alternative is to entirely rely on paid agents of the state for our security, whether military or police. Is there ever a case where governments who are hard up for cash don’t make petty rules to extract fines and hem in the people’s liberty? Is there a government out there that does not favor its supporters and disfavor its opponents? Controlling these agents’ salaries is a powerful inducement for them to do the wrong thing if the government asks them. Over time and across a large number of governments, there will always be cases where they will be asked and there will always be agents who are willing to be tin pot tyrants. They have households to maintain after all.

     

    54 Responses to “A Conservative Case for the Militia Clause in the 2nd Amendment”

    1. Robert Schwartz Says:

      TM: I agree with you about the Militia. I could further argue that the only suitable military for a republic is one built along the lines of the Swiss Army, which was the model for the Israeli Army. I have advocated that model for those republics of the Baltic littoral that want to remain free of Russian domination. There are no takers yet.

      The problem with implementing the Swiss model for the US is two fold.

      First, there is money. We would have to spend a lot, and the Federal government will be financially crippled for many years by its debts and the needs of drug addicted and unemployable underclass that it has created.

      Second, there is the Pax Americana. The one thing that Obama has taught us is that the existence of a peaceful world is dependent on the ability of the American military to project power in far flung theaters. That is not a job for a part time Army. Arguably, the Founding Fathers recognized this and that is why the Art I § 8 authorization limits appropriations for the Army: “no Appropriation of Money to that Use shall be for a longer Term than two Years” but does not so restrict funding for the Navy. Perhaps foreign bases should be limited to the Navy and the Marine Corps.

      As a sort of aside: the militia is also relevant to the gun control argument: think the test case for a person who argues that the 2nd Amendment refers only to weapons used by the militia would be as follows:

      The US Code says that the unorganized militia consist of all male citizens over 17 and under 45. The National Guard is the organized militia. Some states have higher age limits and include women.

      Suppose Congress were to enact a law saying that every member of the unorganized militia was required to keep at home an M-4 carbine (mil spec including full auto), at least 1,000 rounds of 5.56 NATO ammunition, a Beretta M9 semiautomatic 9mm pistol, and at least 500 rounds of 9 mm ammunition, all in good working order, and was to demonstrate competence with both weapons and their maintenance periodically. Both weapons are the standard issue for the US Armed Forces, and both weapons are clearly within the contemplation of the founders.

      I believe that laws of similar import were in effect in American States at the time of the Bill of Rights.

      Could there be any constitutional objection to such a law? Would it not further the purpose of their reading of the 2nd Amendment?

      Would it make them happy?

      Sometimes you just got to follow them down the rabbit hole to flush them out.

    2. Grurray Says:

      The Estonian Defence League is a voluntary reserve militia

      http://www.reuters.com/article/security-estonia-idUSL5N11G2CR20150914

      They participated in NATO exercises last year in Estonia and in Spain. Can you imagine the Oath Keepers going off to Spain?

    3. TM Lutas Says:

      The militia as domestic security is more interesting to me than at present than the militia as warfighting unit. I agree that moving from our dedicated army to a militia model is a big job. In fact, it’s so big that it’s outside the scope of the post. Someday I may get knowledgeable enough to make that argument but not yet.

      I view the militia in as a sort of force whose job responsibilities sandwiches the police’s. At the low end, they’re everywhere and only get involved in malum per se crimes. The more effective they are at this sort of thing, the fewer police are needed and the less likely a government will even accumulate the police personnel sufficient for even a tin pot tyranny and malum prohibitum crimes are disincentivized. The militia are a 4GW force in this role, everywhere and nowhere, and are self financing. But called out, the militia have a greater capacity to project power than the police. This takes care of police militarization as the tasks the police are militarizing for are transferred to the militia to a great extent.

    4. Grurray Says:

      “But called out, the militia have a greater capacity to project power than the police.”

      This is why Israeli authorities have been encouraging residents in and around Jerusalem to arm themselves. The police can’t protect against random, crazed Arabs who attack individuals with no warning and little or no planning. In fact it may be a good example of a bona fide 5th generation war.

    5. Michael Hiteshew Says:

      I’m trying to understand how this would work in a modern setting. It sounds similar to a neighborhood watch, only armed and with arrest and use of force police powers. Is that correct?

      they’re everywhere and only get involved in malum per se crimes.
      I could see that being a problem. Are there legal education classes involved? How about if a gang incorporates their own militia? Does the state license a militia to operate?

    6. Robert Schwartz Says:

      TM: “I view the militia in as a sort of force whose job responsibilities sandwiches the police’s.”

      This is the role of the National Guard, which under federal law is defined as the organized militia.

      I was aiming at something broader as evidenced by the Swiss system.

    7. vxxc2014 Says:

      How about a 2d Amendment case for…all of it.

    8. vxxc2014 Says:

      The Militia are indeed all males 17-45.

      Thank you – that is useful.

      https://www.law.cornell.edu/uscode/text/10/311

      As far as convincing Liberals to drop gun control – they want us helpless for rational reasons from their POV.

      Also the Left doesn’t care about the Law except as it serves the Left. Or the Truth.

      We’re in 1860 now. Also 2007 ARM reset again now – globally and it was Fiat and governments/nations that were mortgaged.

      Which is why that clause is very, very useful.

      Thank you

    9. Mike K Says:

      The “Militia” elected Andrew Jackson. Read Remini’s biography.

      He makes it quite clear. The major change now is that slaves were not members, nor women. Now, they are starting to learn about and acquire guns for the law abiding.

    10. TM Lutas Says:

      Michael Hiteshaw – In fact, what I describe is the actual system the founders set up and how we survived with such a little army for so long. The militia has been de-emphasized but never actually removed from the law books. We just haven’t been treating it seriously and measuring its effectiveness during the time period of the information revolution. We haven’t integrated it into emergency planning, such as riots. It just sort of emerges and melts away and there’s no infrastructure to support it or education beyond what the NRA and others do to ensure that we minimize accidental killings via poor firearm control. If a bunch of yahoos from outside the community come marching in and want to burn out your town’s business corridor, that can tear the guts right out of an area and that scenario has happened. Planning for such a thing and running simulations, building confidence and ensuring common standards so militia can use mutual aid is work that hasn’t much been done among the general public. Military veterans and former law enforcement provide the backbone to create something like that but there’s really no training for it.

      Robert Schwartz – It is definitely not the job of the National Guard to create the bottom layer of the sandwich as their guard weapons do not go home with them and using those weapons in an emergent situation like a violent flash mob without command orders would be problematic. They *are* supposed to be the top layer of the sandwich I proposed but the civil authorities don’t like to use them properly, preferring to expand the capabilities of the police with militarization. This is problematic for a free society in a way that was obvious at the time of our founding and exactly the problem that the 2nd amendment was built to avoid. In other words, police militarization is a 2nd amendment violation. This is not intuitive. It has to be researched and backed up with scholarship. Thanks for your comment though. It forced me to think a bit deeper on the issue. I do wonder how the BLM people would react to the idea that police militarization is a 2nd amendment violation? Now that would throw an apple of discord in the leftist coalition.

      Vxxc2014 – The true believers on the left are, indeed, not going to want to give up but without that militia clause, they have very little left that they can hang their complaints on.

    11. John C. Says:

      I do not believe the Swiss model could be implemented in the U.S. The Swiss have a more homogenous culture than the U.S., and furthermore it is a culture that subordinates the individual to the group far more than that of the U.S. (it has been said that the Swiss do not have an army, but rather ARE an army, and an army subordinates the individuals in it of necessity).

      Incidentally, the National Guard is no part of the militia, organized or otherwise; it is part of the U.S. military, which retains ownership of the Guard’s weapons, pays the members, and can activate it at the discretion of the regular military for foreign service. A state’s Defense Force, if it has one, would be the organized militia.

    12. allenlou Says:

      I think most states still have militia laws on the books. In Kentucky the law labels the organized militia as the Kentucky State Defense Force and places them under the direct command of the governor. In order to be part of the militia there is paperwork and all the members have to be declared to the governor beforehand. They cannot be federalized like the national guard (this is actually one of the reasons the national guard was created) so they don’t suffer split loyalties. I personally think they should do a little more outreach and education work. Volunteer to be security and crowd control at large events where the sheriffs auxiliary and national guard are. I’m not sure if they are tied to disaster recovery in any way, every storm I’ve heard about had Mormons answering the call before anyone. Seems like I’ve heard that they get some overlap with ham radio but they’re kind of closeted about it, like the ham radio guys are not welcoming of their kind, but I could be wrong.

    13. DonM Says:

      During the time between the election of Lincoln, and the time that he took office, there were a large number of militia companies started in the District of Columbia. Rather a lot were started by officers and men who supported the Slave Power, in their preparation for rebellion. It was recognized that Lincoln, as a Western man, might be killed, but could not be captured (he was presumed armed) on the way to his inauguration.

      These companies had been issued US government weapons. After Secretary of War Floyd resigned to help the Slave Power in their rebellion, patriotic US Army officers recognized the threat, and organized inspections of the various militia companies, complete with an oath of loyalty to be sworn by the officers of the company in front of their men. Quite a few of those officers refused to take such an oath, and in such cases the weapons of the militia company were collected and returned to federal depots, to be issued to loyal militia companies.

      It is thought without the actions of those Army officers, and the loyal militia companies that they were able to recruit before, inauguration, Lincoln would not have been able to take office.

    14. allenlou Says:

      I dont think gangs setting up militias is a big risk. In Kentucky law members of the militia acting in uniform are subject to military law, not civil law. If gang bangers were to do gang stuff in uniform (which would be the point of becoming a militia) they could be tried at court martial and no way are they getting the stupid light penalties civilian law offers gang members.

    15. DonM Says:

      Oh, the 1903 Dick Act, based on the experience of the Civil War, and the Spanish American War, make the standard statist’s bargain: The Federal Government was to provide greater funding for the Militia, in return for greater control.

      I would like to see the restrictions of the un-organized militia to persons younger than 45 (except those who previously served as officers, which could continue to serve until 65) and the general restriction of women from the un-organized militia, overturned.

    16. DonM Says:

      the Swiss are not homogeneous, having cantons that speak German, French, Italian, and even Romansch, a species of evolved Latin. Their schools have an interesting time of it.

      Always remember, to sheep, other sheep are different.

    17. Federale Says:

      I don’t think anyone in the gun rights movement is forgetting the militia clause. That is what self-defense and cooperative self-defense is, the militia.

    18. Robert Winkler Burke Says:

      Let me propose a future that has already come to us that is excitingly good. But first, let’s talk about 1939. To my knowledge, in the 48 states… there were no three-gun classes generally available, very few sniper classes, not even pistol classes. Yet though very few were preparing for war, the Great Generation did fine by winning WWII.

      Fast forward to today: In all of the 50 states, you can take exotically advanced pistol classes, shotgun classes (defensive) and carbine or rifle classes (AR & AK.) Also, there are lots of 3-gun competitions and such. So, what war is everyone involved in this been preparing for during the last 40 Years? Answer: The war we are in right now.

      How does this manifest? Here is how: An event happens, that is terror. A religious cult death squad sets about killing people. Due to concealed carry laws and open carry laws returning to America (after losing the Civil War, prejudiced folk couldn’t abide blacks and immigrants packing heat. So it was outlawed, like in Texas in 1873. In Texas in 2016 the right has returned! Hurray for getting rid of prejudice, and thinking blacks and immigrants can’t be American as anybody else. That is, non-death-cult immigrants.)

      Anyway, here is how the war manifests. Bad guys start killing people. Good guys pull out hand guns, shotguns and rifles and carbines, especially AR carbines… and fight back.

      How? By simply having a pistol on one’s own person. Two pistols, even. And 20 to 80 rounds, in magazines. THEN: in trunks of cars, in back of back seats of pickups. The stored weapons can easily have little steel cables and locks, so that simple break-ins don’t enable the weapons to be stolen. (No smash and grabs.) NOPE. The good guys are armed.

      Ludicrous, you say? It’s just like Grandpa of old, on the farm or ranch. In the pick up, or under his belt: was a .38 pistol or even a .45 1911. In the pickup was the old .22 rifle you shot with him as a kid. In truck was either a 30-30 Winchester or hunting rifle… or the old 12 gauge. (Further back in history, it’s like the cowboy with the Colt .44 on hip and Lever action rifle on scabbard on horse, under leg when riding) So liberals on the costs, don’t act like this is outrageous. What is outrageous is 1873-2016 outlaw of gun carry!

      So… the reality is… millions of people in America have been buying three gun solutions… for the war already come to us… and Americans hate to lose, and enjoy fighting tyranny.

    19. Fed Up Says:

      Note that a key advantage of this approach is that it authorizes military weapons. And we could then move the argument to how far up that chain the right extends. Obviously the personal weapons of the military. What about squad weapons? RPGs? TOWs? Any man-portable weapon? Tanks? Jets?

      To the extent that the 2nd Amendment is intended as protection against governmental tyranny, more than typical hunting weapons are likely to be needed.

    20. Kevin Baker Says:

      When people ask me “Hey, what about the militia bit in the Second Amendment? That means it only protects militas, right?” I say this to them:

      A well-educated electorate, being necessary to a free state, the right of the people to keep and read books, shall not be infringed.

      What right is protected? WHOSE right is protected? And if, for some reason, the electorate is not well educated, does the right still exist?

      The militia was A reason for the prohibition on infringement of the right to keep and bear arms. It was not the EXCLUSIVE reason.

    21. Kazinski Says:

      The purpose of the militia clause in the second amendment is actually very simple. Just a quick reading of the sentence structure tells you that the first clause is there to provide a justification of the second operative clause. It is there for the purpose of providing a federal justification for forbidding state and local infringement of the right to keep and bear arms. By clearly linking a federal interest, the security of a free state, with a federal power granted in the constitution, regulating and training the militia, the first clause provides the federal foundation for the second.

    22. James Says:

      At the time of the founding, frontier life gave people the important skills (marksmanship, weapon maintenance, foraging, basic first aid) necessary to be an effective soldier for the time period. That is clearly no longer the case in the era of modern warfare.

    23. doc Says:

      Agreed. And something else to accompany that is the 18th Century meaning of the word “regulated” was ‘practiced” or “equipped”, and “militia” as defined by Federalist Papers is “every armed citizen”… So, the Second Amendment’s meaning is straightforward…”A well-equipped or practiced armed citizenry being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    24. Th3o Moore Says:

      So many of us get it only half right. Little nancy boys that are afraid of guns should not have guns. Men who want to protect their families and are not afraid to do just that should own guns. Both sides are right. The errors start when the nancy boys want to take guns away from grown up men. The errors continue when actual men do not realize that wimps and cowards should be disarmed.

    25. Subotai Bahadur Says:

      Wish I could have gotten to this quicker today. There is a historical background, and I am finishing reading “Pepys Diaries”, unabridged and annotated.

      As with everything, the American Militia is influenced by British history. Brits never have been fond of standing armies, fearing dictatorship by the sovereign. There is a hint of that in that it is the “British Army”, but the “Royal Air Force”, “Royal Navy”, and “Royal Marines”. Back in the 1600’s it was a major problem. Pepys [who personally was a disreputable person] was an Admiralty official in the reign of the restored Charles II. He was involved as an observer of the fights over the Army.

      Short form, before the restoration, Cromwell ruled with the help of his New Model Army; which was disbanded when the Commonwealth was replaced by the restored Stuart dynasty. Cities [especially London] and the Counties had their local “Trained Bands” or militia.

      England went to war with the Dutch in 1665-1667. They got their butts kicked, with the Dutch sailing up the Thames and taking or burning a big chunk of the Royal Navy. The English feared Dutch invasion, and there was a big argument over expanding the Army. It did not happen because Parliament feared an Army under the King’s control.

      This period and the immediately subsequent writings of Locke, Hobbes, and Rousseau are what inspired our Founding Fathers.

      As North America was colonized, militias were the norm due to lack of regular troops to deal with local tribes, the French, and in the South the Spanish. Militias became the basis for military strength in America until the Revolution when we built an army. And as soon as it was over, the army was mostly disbanded and militias with a tiny Army remained the pattern until the Civil War.

      From what I understand, the second law passed by Congress under the new Constitution [the first being a pay raise for Congress] was the Militia Act. That act, in various forms, has remained on the books until this day. As noted by Vxxc2014, it is here: https://www.law.cornell.edu/uscode/text/10/311 , with amendments by other statutes.

      The Militia of the United States consists of the “Organized Militia”, which is the National Guard and Reserves which are funded and controlled by the Federal government, and the “Unorganized Militia” which is as noted all men age 17-45, with some qualifications.

      The “Unorganized Militia” members have to be US citizens or those who have legally declared an intent to become a US citizen. They CANNOT be Federal employees. And one can make a really strong argument that due to laws forbidding gender discrimination and age discrimination; that it should be open to men and women over 17 and up to say 65 as long as they are physically capable.

      There is also a third category recognized by Federal Statute, State Militias. States may raise their own militias at their own costs. And 15 states have them, usually referring to them as “State Guards”. They can be as small as ceremonial honor guards, or as large as the Texas State Guard which has several regiments, an air wing, a naval detachment and a medical detachment. They are only subject to state control, cannot be called up by the Federal government and cannot be made to serve outside the state.

      Moving back to “Unorganized Militia” they are not government funded and each member is expected to furnish, when summoned, their own weapons of military utility. Which has a great bearing on the reasoning behind the Second Amendment. And on what they can carry and what weapons are available. Semi-automatic weapons are obviously of military utility, and if there were not other laws that I think should be challenged, automatic weapons would be more common.

      If the “Unorganized Militia” is structured, and it is in some states, it is usually in the form of an auxiliary to the local County Sheriff’s Department. The traditional route is for a group to organize and train to standards set by the Sheriff. When they reach those standards, they present themselves to the Sheriff, and if they are accepted they become the county militia under whatever title. Sheriff’s Posse is a common one, derived from the ancient Posse Comitatus [not the Federal statute of the same name which has been repealed] (Latin, Power of the county.) Referred at Common Law to all males over the age of fifteen on whom a sheriff could call for assistance in preventing any type of civil disorder.

      I live in the American West. Sheriffs usually have some form of Posse. I understand they are still common in the South. In the more liberal East, the concept of free men bearing arms for their own defense and that of their community is anathema.

      The ancient lineage, and constitutional basis are clear to those who will see. Leftists are deliberately blind.

    26. teapartydoc Says:

      It is wrong to allow the state to define what a militia is to be. This would be to give up our freedom in a unilateral disarmament. The key to having a viable militia is for there to be no domestic standing army, in other words, the army must be non-existent within the nation itself. Local defense must be handed over to militias that are not under the control of the national government, and more still: not able to fall under the influence of the national government. If a conflict is raised and a need of the national government arises, it must call for volunteers to be raised out of those not in the state militias, or put out a call to the individuals in the militias. But it cannot muster men by force. The Navy and strategic air command are the proper province of the national defence, and this can include enough marines to project power when necessary. A milita is for the defense of one’s homeland. The united states is not a homeland, it is a conglomeration of them.

    27. Grurray Says:

      Regarding Subotai’s point about independent state militias, here is the statute recognizing them

      https://www.law.cornell.edu/uscode/text/32/109

      and

      some more on their distinct advantages which support TM Lutas’s proposals

      This status gives SDFs two important advantages. First, SDFs are continually resident within their respective states and can be called up quickly and easily in times of need. Also, SDFs are exempt from the restrictions of the Posse Comitatus Act,[10] which prohibits troops in federal service under Title 10 from engaging in domestic law enforcement activities.[11] While the Posse Comitatus Act has never proved to be a major obstacle to deploying federal forces for domestic emergency response, and does not apply to the Army National Guard or Air National Guard while serving solely in state status under Title 32, SDFs may enforce civilian criminal law uninhibited by legal obstacles, if given that power under state law.

      Illinois had a reserve militia up to WWII, after which it was disbanded. There are unofficial militias around the state, mostly in the southern part, and they have from time to time coordinated with state forces helping with things like natural disasters or other similar crises. From what I’ve witnessed, there’s a lot of overlap between the militias and local cops, so that may be where the ‘Sheriff’s Posse’ factors in.

    28. Guy Taylor Says:

      I do not have authority at my fingertips. However, I never thought that militias were concerned with policing, rather military actions. The distinction is important because while a military force defends the people from a common enemy, the police force enforces the will of the state through enforcement of the laws against individuals. If militias are involved with domestic criminals, they might more properly be referred to as vigilantes. Therefore I mislike this interpretation. If one accepts the premise that militias are constitutionally and statutorily permissible, which is valid, to accord to them a role of policing is to devolve to chaos. In times of civil emergency eg hurricanes where we see “unorganized militias” patrolling neighborhoods against looters ok but that is a defensive function not a police function.

    29. Robert Schwartz Says:

      John C.: Incidentally, the National Guard is no part of the militia …

      That is not what Federal law says:

      10 U.S. Code § 311 – Militia: composition and classes

      (b) The classes of the militia are—
      (1) the organized militia, which consists of the National Guard and the Naval Militia; and
      (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

      I § 8 Cl. 14 provides that Congress has the power: “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;”

      State Governors can, and regularly do, call up the National Guard to maintain public order and provide assistance during natural disasters.

    30. TMLutas Says:

      Guy Taylor – Military forces concerned with policing exist in many countries. The gendarmerie of France are a model for this style as are the carabinieri of Italy. So it wouldn’t be a completely unknown phenomenon for military and police to wear the same hat.

      It would be an interesting question, for instance, whether preventing the british taking of colonial powder that had been legally purchased was a police activity or a military activity. You could make a pretty good argument either way. I wonder what the lawyers say? In a more modern use case, if armed self defense and defense of others is an exclusively military act, why are the results of this act always handed over to the civilian courts? If the trial is civilian, isn’t the apprehension a police affair conducted by the unorganized militia?

    31. vxxc2014 Says:

      W/regards to Militia, Frontiers and Flash mobs…

      Militia is all able bodied male citizens 17-45. It’s nice that it’s legal but we have to do it anyway cuz….

      If you define Frontiers as contested area then many of us including the entire Southern Border already live in a Frontier.

      We also have Frontiers-contested areas-in our inner cities. Detroit or STL, Baltimore…on and on.

      The effective defense Flash mobs/swarm attacks are local self defense groups that form to defend local homes and businesses. We saw it in Ferguson among the locals. More pertinent it was critical during desperate hours of London 2012 riots-often formed by local Asian [read Sikhs] businessmen protecting their property.

      Even RAND talks about local defense groups being critical to contain flash mob attacks. Note the entire strategy of the flash mob is to overwhelm the authorities with sudden and shifting swarming attacks.

      So we need the militia, we are the militia, we have the necessary Frontier, and it’s best local defense until authorities can respond with sufficient en masse force.

      Self-Defense of family, property, community is the prime function of men.

      Right, Duty, necessity and yes even the precious legality. We have it all.

    32. Marc Says:

      There’s an alternate, and perhaps more plausible, explanation for the militia clause. Knowing that the framers knew that government in all of its forms would eventually use it’s power against the people, they ensured the people would always remain armed as a counterbalance. So…

      “A well regulated Militia, being necessary to the security of a free State…” [because the defense of a free state requires a force that is organized, trained, and equipped to defend that state (the force of which has the potential to be turned against the people)]

      …”the right of the people to keep and bear Arms, shall not be infringed.” [the people shall always have the right to arm themselves as a counterbalance]

      To me, that’s the only interpretation that makes sense gramatically.

    33. TMLutas Says:

      Marc – Ok, that’s fine as far as it goes, but that’s a 40,000 foot view of the issue. I’m talking about getting down a little closer to the weeds. In my opinion, that’s what needs to be done to obliterate the liberal “national guard is the only militia” position that they’ve got.

      So why is an army without a militia component insufficient to secure a free state? I don’t think you’ve answered that. I’m pretty sure that we don’t have a national consensus on that question. We should.

    34. vxxc2014 Says:

      Mr. Lutas,

      We don’t have National Consensus on anything that matters, hence we are arming. The rest Sir at this point is tactics.

      We would be arming at this point if it were illegal and if the Second was repealed. That’s certainly been proven in the numbers of weapons sales. Supply exceeded demand twice for nearly 2 years the first time in 08 and for several months from the end of 2012. {== that Sir is an arms race.

      As for “militias” we need them regardless of legal niceties however…10 USC section 311 does cover it.

      We are arming indeed in a arms race as the answers are no longer to be found in books, laws or words.

      These things happen from time to time. Nothing unusual in history happening now.

    35. Grurray Says:

      The best case for a militia and also one of the best Chicago Boyz posts of all time:

      https://chicagoboyz.net/archives/13029.html

    36. Subotai Bahadur Says:

      So why is an army without a militia component insufficient to secure a free state? I don’t think you’ve answered that. I’m pretty sure that we don’t have a national consensus on that question. We should.

      vxxc2014 is correct. There is very little national consensus, and the normal electoral means of resolving differences have been rendered moot by the loss of the rule of law, the subversion of the Constitution, and the merging of the two major parties functionally into one whose opposition is the American people.

      But even if there were a functioning political system, a militia is necessary.

      A free state, a state with a working Constitution that constitutes a working social contract consented to by the population, with limitations on the powers of the government, is an absolute rarity; both today and in history.

      It is constantly under threat, from within and from without. External enemies are dealt with by the Armed Forces of the State. They may be assisted by Reserves, or the Nation in Arms as exemplified by the Militia. But the free state will in almost all cases rise and fall on the shoulders of the professional military when dealing with external threats.

      The threats within are more insidious. Mankind is essentially not used to Freedom, it being a rarity as said. And Freedom is not easy, having to be combined with responsibility to work. Men will too often cast off Freedom, to avoid the responsibility. And men seek power over others with no accountability as the natural course of things. I will leave to the Gentle Reader the task of looking around within our own borders for any examples that come to view. It will not be hard.

      It is a constant battle, a constant tension, to maintain a free state. And the internal enemy will be those who assume power beyond the Constitution and social contract. Those enemies will be drawn to positions of power within the State, and will use that power, illegitimately, against the people to subdue them.

      As long as political means exist, the proper course for free men and women is to use them to bring the State back into compliance with the Constitution. When political means no longer exist, or have been rendered moot, it is the Responsibility of free men and women to bring the State back into compliance with the Constitution by such means as are available.

      Der Krieg ist eine bloße Fortsetzung der Politik mit anderen Mitteln.

      A Free People, in arms; trained and accustomed to the weapons of war, bolstered by veterans, and sworn to preserve, protect, and defend the Constitution against all enemies, foreign and domestic are the best means available in extremis.

      The American Militia, the final ditch.

      Subotai Bahadur

    37. TMLutas Says:

      Vxxc2014 – Nonsense that we don’t have a consensus on anything that matters. The number of people who welcome this coming civil war is very low. That certainly matters. Changing power through elections remains a consensus item as well. I think that the situation is serious, but it’s important not to give in to the temptation of hyperbole. There remain items that we agree on by and large.

      But you’ve talked about a number of interesting things without answering my question. Why can there not be a free state without a militia?

      Subotai Bahadur – I would suggest that your post contains many good reasons why having a militia is useful. But it does not carry the point that the militia is *necessary*, or in other words, cannot be done without and maintain a free state. For that, I think other arguments are necessary. I’ve tried to supply a few.

    38. vxxc2014 Says:

      Mr. Lutas,

      I wish you Sir the best of luck on building your National Consensus on the need for numbers that is group self-defense.

      My appeal is to self-preservation. My appeal is to cold reason. Not to hyperbole. Our National Party is taking steps such as open borders and an extant policy of bringing in military age males from conflict zones-by definition soldiers-into the nation that is in line with genocidal words they’ve uttered for decades. That is the major break with we the people, but also part of the suite of ruinous policies.

      However we have a National Consensus on the most important points.

      #1: We The People have opposing interests to our Ruling classes.

      #2: Normal politics in the form of a chain of sweep elections isn’t working. We are simply cast aside within weeks* of handing out new majorities.

      #3: Domestic Arms Race-this cannot be argued. It’s happening.

      *It’s the horrible finances in my estimate. Ryan was simply being efficient in immediately passing the budget the government party must have.
      Ryan knows what side he is on.

      Finally on the coming Civil War: For myself I have simply accepted it, it is Duty. Not welcome. The part of any adjustment to the horrid truth is past. I suspect most serious people who accept what is happening as facts “feel” the same. Anyone welcoming such is disturbed. However those who looking at all the horrid facts but deny them is Sir Deluded.

      We don’t need any consensus to defend what is ours-we need to be men. Sometimes being a man is Horrid. Duty is horrid. Mr. Subotai can confirm same.

      Facts are often Horrid and Duty often Hard.

      Ta.

    39. Mike K Says:

      “one of the best Chicago Boyz posts of all time:”

      https://chicagoboyz.net/archives/13029.html

      Agreed and it is too bad that the images are not still there.

      I would submit that Chaeronea was another false retreat battle although Philip’s army was not a militia. My plans to visit the site last September were frustrated by the “migrant” flood plus Greece’s financial crisis.

      I have no desire for civil war and hope that a GOP president can defuse some of the anger. Governor Abbot of Texas seems to be on the right track if he can carry it off.

    40. vxxc2014 Says:

      “Governor Abbot of Texas.”

      Or he may well be Joe Hunt of GA. Who held back 100K men and materials from the Fighting Southern Armies – and whose state GA was ravaged anyway. An opportunist. We shall see.

      There is a possibility of a peaceful solution. It has at least the chance of a peaceful, stable Israel::Palestine solution not imposed as drumhead peace with Draconian consequences. It could happen.

      Here are the elections that count – the ones that pick the legitimate commanders of FORCE: Mayor [local police], County Sheriff, Governor [National Guard/State Militia], President of USA – Commander in Chief of Armed Forces.

      The legislatures are intrinsically just either mild mitigation or interference or rent seeking now.

    41. TMLutas Says:

      Vxxc2014 – One of the other bedrock consensus items is that speaking as you did in that comment is not probable cause for you to be jailed. That’s actually quite special. We have the opportunity to build walls on our properties and overwhelmingly, do not. With such a slow slide into conflict, I would expect walls to become popular, at least among those with foresight and a bit of cash. When they do, I will take things a bit more seriously on the civil war front. You can quickly slide into civil war and not make defensive preparations or you can slide into war and the preparations become apparent. Some signs are negative (the gun buying craze) others are not.

      Preparing for and attempting peaceful reform serves two good purposes even if you grant that war is inevitable. It may stave off the day when war happens and reduce the causes of war, making the conflict less bitter. It also may increase the chance that the post war settlement will pick up good solutions and turn the country in a better direction instead of worse. This is what animates me and I hope animates a great many others.

      Reinvigorating the legislatures is one of the key elements to preventing war because they are the principal road to resolving political differences peacefully.

    42. vxxc2014 Says:

      Good.

      Wonderful. Brilliant.

      Best of luck with that.

      Except it’s already started.

      Now in point of fact we face a series of conflicts not just from within but without so I as well wish to minimize costs. We need to preserve above all as much valiant stock and after that productive stock – because we face multiple conflicts centered around the Continental US.

      1] CW2
      2] Outside challenge against CONUS from South against heartland*.
      3] Global Hegemon collapse leading to many global conflicts.

      All 3 of those have begun. Date CW2 to 12/20/14 when the NYPD turned it’s backs after their 2 cops were politically murdered.

      *By the way it’s called heartland cuz if you lose it you’re dead.

      The last place I’ll go for minimizing costs in blood or treasure is the legislature, or lawyers. I’m not sure it would be wise to ‘reinvigorate’ them further as they only can steal now and they do it vigorously. The smart ones know it. For that matter the dumb ones do as well. However if you wish to experience their ‘vigor’ gather money then attract their attention.

      Walls as Indicator: The walls you refer to I’m very, very familiar with…they happen reactively and quickly when they happen…so one can’t time the market by their appearance.

      “Preparing for and attempting peaceful reform serves two good purposes even if you grant that war is inevitable. It may stave off the day when war happens” – which needs to be calculated coldly as to when. In our case it does serve as we have no formal forces and indeed have just awakened. So it’s worth the cost of offering people a false hope that will end up with some of them following another Judas Goat. The less sheep the better.

    43. Subotai Bahadur Says:

      But it does not carry the point that the militia is *necessary*, or in other words, cannot be done without and maintain a free state.

      OK, I am a wordy b*stard, and perhaps that got in the way of my point.

      A free state and people can only exist as long as their Constitution and social contract can be maintained. This will not be identical for all people. Look at the difference between say Americans and Canadians or Americans and Australians.

      All states, whether they start out free or not, will tend to accumulate those in charge who will use the power of the state for their own benefit, oppressing the citizens [or subjects if you are European or Democrat].

      The Constitution and social contract can, for a period of time, prevent or limit those usurpations, so long as the rule of law prevails and there are REAL consequences for those usurpations.

      Eventually, the usurpations will reach the point neither law nor “the system” will be able to provide consequences for committing crimes against the citizens.

      At that point, the only recourse is armed resistance. The odds of that succeeding are minimal against the armed forces of the State under the control of those who use the State against the people.

      Armed resistance CAN be successful by a people who are armed with weapons of military utility, with a tradition of arms, and training in them. A militia. Thus, the necessity of a militia to maintain a free state.

      ****

      As far as consensus is concerned, it seems we do not have one here.

      Vxxc2014 – One of the other bedrock consensus items is that speaking as you did in that comment is not probable cause for you to be jailed.

      In point of fact, it IS consensus on the Left that speech not approved by the government can be a crime. A “hate crime” in particular. In Europe, it IS a crime. That is coming here. And anyone who disagrees with Democrats here would be silenced by prison, confiscation of goods, or violence if they had their way.

      It is not a matter that civil war is a desirable thing. It is a recognition of the fact that absent a real change of course by the Left, that the choice will be submission or civil war. It is not something I want. I want to spend my last years in peace surrounded by adoring grandchildren. I’m pretty sure that Vxxc2014 does not want it, but he will not choose submission.

      Some years ago, I came up with the concept of TWANLOC, Those Who Are No Longer Our Countrymen. Yeah, not my smoothest formulation. If I may:

      What makes a nation? What factors have to be present to forge people into one political and cultural entity, rather than a group of semi-hostile tribes that have to live cheek by jowl.

      Sparked by Wretchard, we have been discussing language. If you are part of a nation, you must either have one common language or if there is more the people must be multiply fluent. This is important because language determines thought patterns. If a language does not have a word, the people who speak that language do not have the concept the word represents. As an example, one of the problems when the West encountered China, they did not understand each other. When Westerners extolled the virtues of freedom, the word did not translate into Chinese as the concept of liberty under the rule of law. It translated as “license”, which did not go over well in Chinese culture.

      We no longer share the same language as those I refer to as TWANLOC. The words do not mean the same things, and they are more than willing to twist words because the very concepts of “meaning” and “cause and effect” for them are just “social constructs”. It is akin to Marxist value; that which promotes the revolution is good, that what does not is evil.

      To be a nation, a people must share a history, and within the bounds of socialization [in the political science sense, not the sense of a Socialist Party], they must share a basic interpretation of that history. To those Americans who we can call Patriots, America has had, and has flaws, but the overall trend is to fix what is wrong. To TWANLOC, America is an unmitigated evil. It is the cause of all the troubles of everyone else in the world. Take the view of slavery. To Patriots, slavery was wrong, our forefathers fought a war and lost hundreds of thousands of lives to end it. And no one alive now has owned a slave. To TWANLOC, America is somehow permanently tainted for having slavery, ever. Yet somehow, Islamic cultures that still enslave people are somehow pure. That is but one example, but if you talk to any Chiroptera Lunarii, if they have any knowledge of a history before their puberty, you will find an ingrained belief that the United States has never done anything good.

      To be a nation, people have to share a culture. What is our shared culture? Is it the heritage of Europe focused through the lens of post-Civil War [English Civil War] Britain? Is it the culture of victimization that values failure over achievement? Is it the heritage of the descendants of those oppressed by the Spanish? Is it the culture of the Europhile Marxists on the coasts? Once again, the context of the “dictionary” differs from group to group. And as the context shifts, meaning shifts. Indeed one could question whether there is any meaning that can be transmitted. Because, amongst others, the last 3 cultures mentioned have ‘deconstructed’ the concept of meaning to the point of, well, meaninglessness. Words and concepts mean what is advantageous to them at the moment, and you cannot hold them to any logical consistency. I am sure my fellow BC-ers have encountered this when dealing with Chiroptera Lunarii. Case in point, “All discrimination is bad, especially when practiced by someone opposed to the Left.”. But “Discrimination against Whites, males, and those who achieve is good; especially if it favors those who are non-white [except Asians], females, and those who are incapable of achievement.”. Red Queen territory.

      The final, and most obvious, characteristic of nationhood is a shared territory over a period of time. And yes, all the disparate groups that are in this country share the territory of the 50 [or 57 if you are an Obamabot] states. But there is still a separation within the 50 states. The Left holds sway in large urban areas. [see presidential vote maps broken down by county] That is where their culture is based. We accept the difference and even joke about it. New Yorkers tend to believe that everything from New Jersey [a wilderness itself] to California really doesn’t exist except for outposts like Chicago, Boulder [Colorado] and Austin [Texas]. It is flyover country and it and its inhabitants are considered uneducated rubes who cling to guns and Bibles, and probably could not either identify the finest vintages of any given year in France or comprehend the subtle, ironic artistic nuances of a crucifix immersed in urine. Nor do they understand the complexities of the urban minority experience and they fail to celebrate the various gansta lifestyles.

      Those in flyover country tend to believe in guns, God, and the Constitution; not in that order. And they disproportionately take up the burden of defending this country; over the objections of the Coastal Left who hates the military and those who serve. Once again culture, but also culture that is separated geographically.

      Are we one nation? E Pluribus Unum? Are we countrymen anymore in any meaningful way? Do we speak the same language, share the same history, come from the same culture, or live side by side in peace and mutual respect?

      And if we regain control of the country from its enemies; we still face the same problem of two irreconcilably hostile nations inside one set of borders.

      Note, that in those definitions I wrote, the words “Democrat” and “Republican” do not appear. Because both Parties are run by TWANLOC of differing levels of dedication. Centralized and arbitrary power is the keynote, not party labels. The leadership of the Republican Party is at open war with its political base and allying itself openly with the Democrats against them.

      Contempt for the Constitution and the rule of law is the indicator, and the concurrent willingness to discard everything from the past.

      We are NOT one country. We are two or more [there are arguments to be made about schism’s on both sides] inside one set of borders, intermixed. Think about the area that later became “Germany” from 1618-1648, where basic conflicting conceptions of man’s place in the universe became intertwined with the military enforcement of power politics; at the eventual cost of literally 1/2 of the population. The mass slaughter, not coincidentally ending with the rise of unified “Peace of Westphalia nation-state”, seems to be returning to the world as that system of nation-states breaks down. There is nothing dictating to the universe that we will be exempt. The legal and constitutional order that applied to all is now gone. Which means we return to a Clausewitzian dispensation.

      Now as to whether I blame all Democrat voters and denominate them as TWANLOC. The Democrats, like it or not, are the public face of an all powerful centralized State. Whether their supporters vote for them out of a desire for the imposition of the historically inevitable Dictatorship of the Proletariat, or because they are promised more goodies, or because their parents voted for them, or because they think Mitt Romney is ‘icky’; their reasons for doing so are not rooted in a knowledge and belief in what it meant to be an American. And ignorance of what triggered our form of government, and how it evolved is actively encouraged by our culture. And it has the same destructive result for the country.

      But that does not let what I call the Institutional Republicans off of the hook. They are just as ignorant, and just as hostile to the concept of government implied by the Constitution. TWANLOC crosses party lines, includes at least half of the country, and no matter how or why they vote or accept the destruction of the Constitution; if their votes and actions enable the destruction of what was America they are TWANLOC.

      As I said, wordy. The forum I wrote that for years ago does not discourage it. I’m pretty sure that we differ widely on where we think the country is. I HOPE it is you who is right, and I have that chance to be surrounded by those hordes of adoring grandchildren. But my observation and reasoning tell me otherwise.

    44. vxxc2014 Says:

      No I don’t want war.

      I accept it.

      The war happens whether or not I’d ever been born.

      Soldiers have a different mindset. Accepting War is well behind us. War is before us.

      By the way I don’t think submission is an option for us at this point, that time has passed.

      As has William F. Buckley and his counsel.

      I accept fate and duty.

      There are worse things.

    45. ErisGuy Says:

      Funny how many “conservative” arguments exist for liberal goals. It’s almost as if there were no difference between them.

    46. TMLutas Says:

      Vxxc2014 – Were I to believe that war is truly inevitable a certain series of events would happen. You would see me largely disappear from the public net under this identity which is easily linked to my real world identity and, more importantly, family. My communications would largely shift to other forums and I would concentrate on releasing tools for those who would like to be prepared, to get prepared without raising alarm on the other side because that’s really what I’d be good for in a conflict, IT and information operations. For someone to use a long time ID to preach the inevitability of civil war is, at best, the act of a fool. It is more likely the act of someone who is not very serious about their predicted coming war. Very possibly both are true.

      Your revealed preferences are more educational than your actual statements. You are nowhere near scared enough to survive in the world you say exists.

      Subotai Bahadur – You ably expressed how a militia can be used to recover a free state. I agree. Your answer is off point because the question is why the founders thought a militia was necessary to maintain a free state. It is the maintenance of a free state, not its recovery that interests me at present. We lost the thread of what it means to maintain a free state and so our liberties erode, hopefully not to the point of civil war but that’s not off the table either. If we win and reclaim our liberty, we have to do better than a never ending cycle of eroding liberty and violent restoration. I think that this is both a point worth proper examination and an aspect of our society that has failed. We need to do better next time and the first step is a re-examination of the goal, the means, and a healthy round of failure analysis.

    47. Michael Hiteshew Says:

      I will also add that revolutions and civil wars have a long history of spinning out of control or being unresolved, leaving the political situation essentially unchanged but with lots of wrecked infrastructure and increased lawlessness. We should avoid that road if at all possible.

      That ours in 1776 did not devolve into a bloodbath or a tyranny has been a blessing on us. Much of that is due to the exceptional quality of leadership and the high level of basic decency among the colonists we had at the time. I doubt we would be so fortunate a second time.

    48. Subotai Bahadur Says:

      TMLutas Says:
      January 19th, 2016 at 11:19 am

      The existence of a Militia is the factor that should deter those seeking extra-Constitutional power from acting. Thus it should act to preserve the free state. If the Militia and the Militia impulse is too weak, there will be no such deterrent effect; which may well be the situation that obtains today. In the absence of the deterrent effect, it will have to be settled by trial, with no surety of outcome. Just of which side honor lies.

      It all turns on whether a free state, and free people, under a functioning Constitution is what we have now. That is in dispute. YMMV

      We may get a definitive answer, even before the putative 2016 elections or their postponement. The Supreme Court has just accepted a case to be heard United States v. Texas, No. 15-674; which is a joint case involving several states, I believe, about the Emperor’s Executive Orders overturning the statutory provisions of immigration law. The court itself added the ground as to whether it fell under the rubric of “take care that the laws be faithfully executed”.

      This will be heard I believe in late March or early April, and could have a decision announced by June.

      Look at the current court and its members. There is limited ground for optimism that the current justices, based on past rulings, will do anything to limit the Emperor’s power and a high likelihood that they will make it absolute.

      As to the matter of going dark in the event of a high likelihood of kinetic events; it would have to be accompanied by a total change of identity and location to have any hope of avoiding those kinetic events. The coercive organs of State Power have been accumulating data on all of us for a very long time. Not everyone can make such a change. So most of us cannot follow that process.

    49. vxxc2014 Says:

      Subotai,

      The courts in America have no intrinsic power and have seldom erected bars to powers Federal or Regional – regional being for instance slavery.

      There is little there in courts but perhaps some scrap of legitimacy. If it goes against a faction then the Judges craven bowing to power added to the banners of grievances of the losing party. Courts are for peace and plenty times, not for real politics and war.

      There are never legal solutions to political struggles simply sometimes legal forms being taken by the winners. Thus it has always been thus it shall always be.

    50. vxxc2014 Says:

      Mr. Lutas,

      A soldier speaking openly and analytically of war that has long been growing on the horizon and further has already begun with the hunting of policemen and the brazen opening of borders to bring in military age hostile males isn’t the act of a fool.

      Soldiers candor isn’t folly, it’s Duty.

      It would be the act of a fool if the speaker placed his own well being above all else but then he should never be a soldier.

      Yes it would be wonderful if no speaking were necessary. It’s calculated trade off of doing one’s duty to point out harsh truths balanced against personal interests. However again soldiers don’t place personal interests above all. Since it’s raised I wish it weren’t necessary at all but have to work within actual constraints and duty that I get, not what I wish.

      What might however be the act of a fool is to lay out clearly what steps they’ll take if they consider war inevitable, steps that can be discerned by anyone in the world with an internet connection.

      Further folly to then make clear allegiances in advance and indeed what role they see themselves playing in war.

      In fact being quite certain what you’ll do in war is something that veterans smile knowingly at when young recruits explain their plans.

      A great personal plan for your war is A Category of Uneducated Folly all it’s own.

      Nor can someone who explains their limits and pressure points in advance be entrusted with valuable infrastructure and it’s priceless intelligence.

      Based on experience take whatever you can get however strange and perhaps seeming lowly then earn the priceless asset of proven trust from the ground up, and the ground Sirs is not wherever you happen to find yourself – but wherever the force of nature unleashed happens to find YOU.

      There is no greater asset or skill – or education – then beginning and fighting as a rifleman. Start there, seek there and then any other talents once fired in war will perhaps come into play.

    51. vxxc2014 Says:

      There’s nothing new about soldiers being candid about War as it approaches ever larger and indeed has already begun.

      Indeed it’s the Duty of Citizens, Councilors not just soldiers.

      Are these Greeks fools for being candid in the deliberations at the beginning of the Peloponnesian War?

      http://www.gutenberg.org/files/7142/7142-h/7142-h.htm#link2H_4_0001

      If you think that tyranny doesn’t demand candor on the gravest and most important matters of state you’re wrong as well – Hitler, Stalin and all of them got it. None were ever so demanding of ruthless even self critical introspection as Mao’s Army.

      Candor is vital in war. Yes even if it costs you. Even Saddam’s henchmen were candid to his face. That it cost their lives was a risk they accepted. We can at least be as brave as Baathists.

    52. vxxc2014 Says:

      A great personal plan for your war is a Category of Uneducated Folly all it’s own.

      Simply put you’re Green. That’s all. Most if not all Veterans made same youthful mistake.

    53. Subotai Bahadur Says:

      vxxc2014 Says:
      January 20th, 2016 at 7:45 am

      You may have misconstrued what I said. I expect the court case not to reaffirm a concept of the rule of law and the Constitution. I expect that we will see the Supreme Court to render any concept of the rule of law moot. They are not arbiters, they are agents.

      There is no reason, given the makeup and history of the Court, to assume that they would do so, or that the Emperor would follow any ruling he did not agree with/originate.

      This is the falling of the concealing veil. And it will take place about the time that other crises will be coming to a head before any putative 2016 elections.

      We are not differing here, I suspect.

    54. TMLutas Says:

      Vxxc2014 and Subotai Bahadur – The great conservative, Winston Churchill, identified accurately that the governing path that the UK government would take under the post war labour party would end in exit visas and a gulag. He lost the post war election. Exit visas were not seriously proposed until Arthur Scargill did it in the 1970s and were, I believe, one of the reasons for the success of Margaret Thatcher. I believe that both of you are as accurate as Churchill, right on seeing the future but wrong on the timing.

      I’m putting a marker down on no civil war by 2017.