All the participations poorly performed at the mock situation.

English the language firstly I not have.

What in hell is the "Five Aims of the USA"?

Defined in Part I: "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity".

Part I ends with this gem: "Furthermore, one must understand the Bill of Rights to complete the check and balance system in the Constitution of the USA. These rights give certain powers to an individual and withhold certain powers from the person."

a state has the right to organize a well-regulated Militia

A state has the right to a well-regulated, UNorganized Militia, comprised of all its age-eligible able bodied citizens.

What in hell is the "Five Aims of the USA"?

The Five Aims of the USA is an apparent arithmetically challenged reference to the Preamble to the Constitution, written by the committee on style, and not a part of the Constitution adopted at the Convention.

We the people of the United States, (1) in order to form a more perfect union, (2) establish justice, (3) insure domestic tranquility, (4) provide for the common defense, (5) promote the general welfare, and (6) secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

A gun for civilians is a weapon for a revolution and not for ordinary use. The belief that a gun is a useful tool to protect one is counterintuitive because guns get into the hands of people who use them for horrible reasons.

A gun for civilians is a protected right for self-defence.

The second amendment establishes no right, it forbids the Federal government from infringing upon a pre-existing right.

The pre-existing right was established in English common law long before the creation of the Constitution.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals (1765)

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Gun do get into the hands of people who use them for horrible reasons. So do knives, yet we are not required to forego knives.

Once again, if there is an argument in the reasoning of this amendment and others, one must filter it through the Five Aims of the USA and the Bill of Rights.

Nothings needs to be filtered through the Five Aims of the USA. The preamble is a rhetorical flourish appended by the Committee on Style after the Convention which adopted the Articles. The preamble is of no legal significance whatever.

"A state has the right to a well-regulated, UNorganized Militia, comprised of all its age-eligible able bodied citizens."

Sure. The state can do whatever it wants. But if the state wants second amendment protection for their Milita, that Militia needs to be well-regulated -- -- -- meaning organized, armed and disciplined with officers appointed by the state.

"A gun for civilians is a protected right for self-defence."

When written, not by the second amendment. As evidenced in Miller, the only weapons protected by the second amendment were those "suitable for use" by a state Militia.

State constitutions protected the individual right of civilians to keep and bear arms. States have always (until Heller) defined who may own weapons, what kind of weapons, and how they may be used. Which is why the gun laws in each state were different.

nolu chan (#3) --- "A state has the right to a well-regulated, UNorganized Militia, comprised of all its age-eligible able bodied citizens."

Sure. The state can do whatever it wants. But if the state wants second amendment protection for their Milita, that Militia needs to be well-regulated -- -- -- meaning organized, armed and disciplined with officers appointed by the state. --- misterwhite

ALL levels of gov't are bound by our Constitution, and can NOT do what they "want".

--- Which includes assuming that the state has the power to appoint officers in our military organizations.. -- A power best divided.

Misterwhite, of course, advocates that the state be ALL powerfull...

Which is why the gun laws in each state were different.

Can't have that. Freedom means centralized power.

The state can do whatever it wants.

Attaboy!

That one sentence demonstrates your totalitarian bent.

nolu chan (#5) --- "A gun for civilians is a protected right for self-defence."

When written, not by the second amendment. As evidenced in Miller, the only weapons protected by the second amendment were those "suitable for use" by a state Militia.

State constitutions protected the individual right of civilians to keep and bear arms. States have always (until Heller) defined who may own weapons, what kind of weapons, and how they may be used. Which is why the gun laws in each state were different. --- misterwhite

Misterwhite once again chants the anti-gun statist mantra.

Will he ever admit that some States have NOT protected our rights to arms?

Whatta weirdo..

"That one sentence demonstrates your totalitarian bent."

Taken out of context it demonstrates diddly-squat.

In context it means what it says. A state can certainly have an "unorganized" militia.

States have always (until Heller) defined who may own weapons, what kind of weapons, and how they may be used. Which is why the gun laws in each state were different. --- misterwhite

Can't have that. Freedom means centralized power. ---- Roscoe

Centralized power by governments is NOT a goal of our Constitution.

Which is why the document ensures that ALL levels of government in our republic are restrained by its provisions..

But if the state wants second amendment protection for their Milita, that Militia needs to be well-regulated -- -- -- meaning organized, armed and disciplined with officers appointed by the state.

No, absolutely not. The Second Amendment pertains to the UNorganized militia.

The well-regulated militia is not the organized militia.

Regarding the meaning of "well regulated," it is useful to consult 10 U.S.C. 311 to learn that, "The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."

Nobody registers with the militia as they are automatically in the militia per statute.

Moreover, it is unconstitutional to enact any form of state or federal law that conflicts with the constitutional provision, "the right of the people to keep and bear arms, shall not be infringed."

http://www.constitution.org/cons/wellregu.htm

The meaning of the phrase "well-regulated" in the 2nd amendment

From: Brian T. Halonen

The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.

http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/

THE MILITIA - 10 U.S.C. § 311 (2012)

§311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(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.

(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, §1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656.)

When written, not by the second amendment. As evidenced in Miller, the only weapons protected by the second amendment were those "suitable for use" by a state Militia.

State constitutions protected the individual right of civilians to keep and bear arms. States have always (until Heller) defined who may own weapons, what kind of weapons, and how they may be used. Which is why the gun laws in each state were different.

Nonsense. The Second Amendment created no right to keep and bear arms. It protected a pre-existing right existing in the people by explicitly withholding from the Federal government, any power or authority to infringe upon that pre-existing right.

Your interpretation of Miller (1939) is nonsense, directly refuted by the holding in Heller in 2008.

http://laws.findlaw.com/us/000/07-290.html

DISTRICT OF COLUMBIA et al. v. HELLER

certiorari to the united states court of appeals for the district of columbia circuit

No. 07-290. Argued March 18, 2008--Decided June 26, 2008

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22-28.

(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28-30.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32-47.

(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264-265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47-54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54-56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition--in the place where the importance of the lawful defense of self, family, and property is most acute--would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56-64.

478 F. 3d 370, affirmed.

"The Second Amendment created no right to keep and bear arms."

Correct. I never said it did.

"It protected a pre-existing right existing in the people ..."

It protected the pre-existing right for some people, not everyone.

"Your interpretation of Miller (1939) is nonsense, directly refuted by the holding in Heller in 2008."

My interpretation of Miller is 100% correct as evidenced by what the court actually ruled. Heller ignored Miller and was a horrible decision.

"United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes."

Which the Heller court totally ignored. The Miller decision states that the ONLY weapons protected are those used by the military. The court's only question was if the sawed-off shotgun qualified as military arms.

"The well-regulated militia is not the organized militia."

I'm referring to conditions as they were when the U.S. Constitution and the Bill of Rights were written.

The military was the state militias. There was only one type of state militia and it was organized under the Militia Act of 1792. The second amendment was written to protect those state militias and their arms from federal infringement, given that the states feared a federal army.

It protected the pre-existing right for some people, not everyone.

Stop being absurd.

My interpretation of Miller is 100% correct as evidenced by what the court actually ruled. Heller ignored Miller and was a horrible decision.

Oh nonsense. Heller is the binding precedent and explained why Miller is bullshit to cite as precedent as you have done.

http://laws.findlaw.com/us/000/07-290.html

DISTRICT OF COLUMBIA et al. v. HELLER

certiorari to the united states court of appeals for the district of columbia circuit

No. 07-290. Argued March 18, 2008--Decided June 26, 2008

E

We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment.

United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right "is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment ... means no more than that it shall not be infringed by Congress." 92 U. S., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob's attack, see C. Lane, The Day Freedom Died 62 (2008). We described the right protected by the Second Amendment as " 'bearing arms for a lawful purpose' "22 and said that "the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes" to the States' police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.23

Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade "bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law." Id., at 264-265. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups. Justice Stevens presses Presser into service to support his view that the right to bear arms is limited to service in the militia by joining Presser's brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for Justice Stevens' argument, that later portion deals with the Fourteenth Amendment; it was the Fourteenth Amendment to which the plaintiff's nonmembership in the militia was relevant. Thus, Justice Stevens' statement that Presser "suggested that... nothing in the Constitution protected the use of arms outside the context of a militia," post, at 40, is simply wrong. Presser said nothing about the Second Amendment's meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations.

Justice Stevens places overwhelming reliance upon this Court's decision in United States v. Miller, 307 U. S. 174 (1939). "[H]undreds of judges," we are told, "have relied on the view of the amendment we endorsed there," post, at 2, and "[e]ven if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself ... would prevent most jurists from endorsing such a dramatic upheaval in the law," post, at 4. And what is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 2.

Nothing so clearly demonstrates the weakness of Justice Stevens' case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for ... military purposes" but for "nonmilitary use," post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." 307 U. S., at 178 (emphasis added). "Certainly," the Court continued, "it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Ibid. Beyond that, the opinion provided no explanation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did "not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns," post, at 42-43, but the words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General's argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. Justice Stevens claims, post, at 42, that the opinion reached its conclusion "[a]fter reviewing many of the same sources that are discussed at greater length by the Court today." Not many, which was not entirely the Court's fault. The respondent made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3 N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government's brief spent two pages discussing English legal sources, concluding "that at least the carrying of weapons without lawful occasion or excuse was always a crime" and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) "the early English law did not guarantee an unrestricted right to bear arms." Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that "some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property," and launched an alternative argument that "weapons which are commonly used by criminals," such as sawed-off shotguns, are not protected. See id., at 18-21. The Government's Miller brief thus provided scant discussion of the history of the Second Amendment--and the Court was presented with no counterdiscussion. As for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178-182. Not a word (not a word) about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case.24

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25

We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment's guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. See New York Times Co. v. Sullivan, 376 U. S. 254 (1964). It is demonstrably not true that, as Justice Stevens claims, post, at 41-42, "for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial." For most of our history the question did not present itself.

Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.

I like the use of the word "crooks" in a Supreme Court decision.

I'm referring to conditions as they were when the U.S. Constitution and the Bill of Rights were written.

The military was the state militias. There was only one type of state militia and it was organized under the Militia Act of 1792.

The Militia Act of 1792 did not exist when the Second Amendment was ratified in 1791, and said Militia Act was repealed in its entirety in 1795.

At the time of the Framing and ratification of the Bill of Rights, the militia was viewed as a force for the people to defend against potential future usurpations of the federal government.

Madison, Federalist 46, re the Militia

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

The Militia Act of May 8, 1792 (repealed 1795).

SECOND CONGRESS. Sess. I. Ch. 33. 1792.

1 Stat. 271

May 8, 1792.

Chap. XXXIII.—An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States.(a)

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That and by whom each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citi­zen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such cap­tain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to re­side within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cart­ridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned officers shall severally be armed with a sword or hanger and espontoon, and that from and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for

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(a) The acts for the establishment of an uniform system for the government of the militia, are: An act more effectually to provide for the national defence by establishing an uniform militia throughout the United States, May 8, 1792, chap. 33; an act providing arms for the militia throughout the United States. July 6, 1798, chap. 65; an act in addition to an act entitled, “An act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States,” March 2, 1803, chap. 15; an act more effectually to provide for the organizing of the militia of the District of Columbia, March 3, 1803, chap. 20; an act establishing rules and articles for the government of the armies of the United States, April 10, 1806, chap. 20; an act in addition to the act entitled, “An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and to repeal the act now in force for those purposes,” April 18. 1814, chap. 82; an act concerning field officers of the militia, April 20, 1816, chap. 64; an act to establish an uniform mode of discipline and field exercise for the militia of the United States, May 12, 1820, chap. 96; an act to reduce and fix the military peace establishment of the United States, March 2, 1821, chap. 12, sec. 14.

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balls of the eighteenth part of a pound. And every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, dis­tresses, executions or sales, for debt or for the payment of taxes.

Sec. 2. And be it further enacted, That the Vice President of the United States; the officers judicial and executive of the government of the United States; the members of both Houses of Congress, and their respective officers; all custom-house officers with their clerks; all post-officers, and stage drivers, who are employed in the care and conveyance of the mail of the post-office of the United States; all ferrymen employed at any ferry on the post road; all inspectors of exports; all pilots; all mariners actually employed in the sea service of any citizen or mer­chant within the United States; and all persons who now are or may here­after be exempted by the laws of the respective states, shall be, and are exempted from militia duty, notwithstanding their being above the age of eighteen, and under the age of forty-five years.

Sec. 3. And be it further enacted, That within one year after the passing of this act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions and companies, as the legislature of each state shall direct; and each division, brigade and regiment, shall be numbered at the formation thereof; and a record made of such numbers in the adjutant-general's office in the state; and when in the field, or in service in the state, each division, brigade and regi­ment shall respectively take rank according to their numbers, reckoning the first or lowest number highest in rank. That if the same be conve­nient, each brigade shall consist of four regiments; each regiment of two battalions; each battalion of five companies; each company of sixty-four privates. That the said militia shall be officered by the respective states, as follows: To each division, one major-general and two aids-de-camp, with the rank of major; to each brigade, one brigadier-general, with one brigade inspector, to serve also as brigade-major, with the rank of a major; to each regiment, one lieutenant-colonel comman­dant; and to each battalion one major; to each company one captain, one lieutenant, one ensign, four sergeants, four corporals, one drummer and one fifer or bugler. That there shall be a regimental staff, to consist of one adjutant and one quartermaster, to rank as lieutenants; one paymaster; one surgeon, and one surgeon's mate; one sergeant-major; one drum-major, and one fife-major.

Sec. 4. And be it further enacted, That out of the militia enrolled, as herein directed, there shall be formed for each battalion at least one company of grenadiers, light infantry or riflemen; and that to each division there shall be at least one company of artillery, and one troop of horse: there shall be to each company of artillery, one captain, two lieu­tenants, four sergeants, four corporals, six gunners, six bombadiers, one drummer, and one fifer. The officers to be armed with a sword or hanger, a fusee, bayonet and belt, with a cartridge-box to contain twelve cartridges; and each private or matross shall furnish himself with all the equipments of a private in the infantry, until proper ordnance and field artillery is provided. There shall be to each troop of horse, one captain, two lieutenants, one cornet, four sergeants, four corporals, one saddler, one farrier, and one trumpeter. The commissioned officers to furnish them­selves with good horses of at least fourteen hands and an half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps. Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mailpillion and valise, holsters, and a breast-plate and crupper, a pair of boots and spurs, a pair of pistols, a sabre, and a cartouch-box, to contain twelve cartridges for pistols. That each company of artillery; and troop of horse shall be formed of volunteers from the brigade, at the

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discretion of the commander-in-chief of the state, not exceeding one company of each to a regiment, nor more in number than one eleventh part of the infantry, and shall be uniformly clothed in regimentals, to be furnished at their own expense; the colour and fashion to be determined by the brigadier commanding the brigade to which they belong.

Sec. 5. And be it further enacted, That each battalion and regi­ment shall be provided with the state and regimental colours by the field officers, and each company with a drum and fife, or bugle-horn, by the commissioned officers of the company, in such manner as the legis­lature of the respective states shall direct.

Sec. 6. And be it further enacted, That there shall be an adjutant-general appointed in each state, whose duty it shall be to distribute all or­ders from the commander-in-chief of the state to the several corps; to attend all public reviews when the commander-in-chief of the state shall review the militia, or any part thereof; to obey all orders from him relative to car­rying into execution and perfecting the system of military discipline esta­blished by this act; to furnish blank forms of different returns that maybe required, and to explain the principles on which they should be made; to re­ceive from the several officers of the different corps throughout the state, returns of the militia under their command, reporting the actual situation of their arms, accoutrements, and ammunition, their delinquencies, and every other thing which relates to the general advancement of good order and discipline: all which the several officers of the divisions, bri­gades, regiments, and battalions, are hereby required to make in the usual manner, so that the said adjutant-general may be duly furnished therewith: from all which returns he shall make proper abstracts, and lay the same annually before the commander-in-chief of the state.

Sec. 7. And be it further enacted, That the rules of discipline, ap­proved and established by Congress in their resolution of the twenty-ninth of March, one thousand seven hundred and seventy-nine, shall be the rules of discipline to be observed by the militia throughout the Uni­ted States, except such deviations from the said rules as may be rendered necessary by the requisitions of this act, or by some other unavoidable circumstances. It shall be the duty of the commanding officer at every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained agreeably to the said rules of disci­pline.

Sec. 8. And be it further enacted, That all commissioned officers shall take rank according to the date of their commissions; and when two of the same grade bear an equal date, then their rank to be deter­mined by lot, to be drawn by them before the commanding officer of the brigade, regiment, battalion, company, or detachment.

Sec. 9. And be it further enacted, That if any person, whether offi­cer or soldier, belonging to the militia of any state, and called out into the service of the United States, be wounded or disabled while in ac­tual service, he shall be taken care of and provided for at the public expense.

Sec. 10. And be it further enacted, That it shall be the duty of the brigade-inspector to attend the regimental and battalion meetings of the militia composing their several brigades, during the time of their being under arms, to inspect their arms, ammunition, and accoutrements; su­perintend their exercise and manoeuvres, and introduce the system of military discipline before described throughout the brigade, agreeable to law, and such orders as they shall from time to time receive from the commander-in-chief of the state; to make returns to the adjutant-gene­ral of the state, at least once in every year, of the militia of the brigade to which he belongs, reporting therein the actual situation of the arms, accoutrements, and ammunition of the several corps, and every other thing which, in his judgment, may relate to their government and the

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general advancement of good order and military discipline; and the adjutant-general shall make a return of aD the militia of the state to the commander-in-chief of the said state, and a duplicate of the same to the President of the United States.

And whereas sundry corps of artillery, cavalry, and infantry now exist in several of the said states, which by the laws, customs, or usages thereof have not been incorporated with, or subject to the general regulations of the militia:

Sec. 11. Be it further enacted, That such corps retain their accus­tomed privileges, subject, nevertheless, to all other duties required by this act, in like manner with the other militia.

Approved, May 8, 1792.

Compare to current Federal law:

http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/

Subtitle A - General Military Law (§§ 101 - 2925)

Part I - ORGANIZATION AND GENERAL MILITARY POWERS (§§ 101 - 498)

Chapter 13 - THE MILITIA (§§ 311 - 312)

Section 311 - Militia: composition and classes

THE MILITIA - 10 U.S.C. § 311 (2012)

§311. Militia: composition and classes

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(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.

(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, §1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656.)

http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-312/

Subtitle A - General Military Law (§§ 101 - 2925)

Part I - ORGANIZATION AND GENERAL MILITARY POWERS (§§ 101 - 498)

Chapter 13 - THE MILITIA (§§ 311 - 312)

Section 312 - Militia duty: exemptions

THE MILITIA - 10 U.S.C. § 312 (2012)

§312. Militia duty: exemptions

(a) The following persons are exempt from militia duty:

(1) The Vice President.

(2) The judicial and executive officers of the United States, the several States, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(3) Members of the armed forces, except members who are not on active duty.

(4) Customhouse clerks.

(5) Persons employed by the United States in the transmission of mail.

(6) Workmen employed in armories, arsenals, and naval shipyards of the United States.

(7) Pilots on navigable waters.

(8) Mariners in the sea service of a citizen of, or a merchant in, the United States.

(b) A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant.

(Aug. 10, 1956, ch. 1041, 70A Stat. 15; Pub. L. 100–456, div. A, title XII, §1234(a)(3), Sept. 29, 1988, 102 Stat. 2059; Pub. L. 109–163, div. A, title X, §1057(a)(7), Jan. 6, 2006, 119 Stat. 3441.)