The Senate Subcommittee on the Constitution Report and the GCI "Have you seen your Militia Recently" are similar in length, style, and form. They vary in spin. The two reports seem to deserve each other. If you got through both without getting too dizzy, congratulations, you care.
This page, of course, provides even more spin. It raises differences between the Senate and GCI models. It is almost, but not quite, entirely with the Senate.
The various Bills of Rights discussed in both documents - state, federal, and English - are all partisan political documents. They were designed to favor democracy at the expense of assorted tyrant kings and a military dictator. The intent of those struggling to make democracy work was to prevent the government from disarming the people. While the NRA has quoted the founding fathers often enough, the most relevant quote is commonly attributed to Al Capone. "You get further with a kind word and a gun, than with a kind word alone."
The base intent of the various state, federal and English Rights to bear Arms and protections for the Militia was to prevent the government from disarming the people. The Senate report emphasizes this. The GCI report tries vainly to attribute every other possible motive. I'm with the Senate on this one. I'm also of the old fashioned school that believes the intent of the lawmaker should be the law.
Simply, GCI believes the government should monopolize use of force. The various kings described in both paper's histories that agree with GCI are generally considered the bad guys. The founding fathers believed the people should outgun the standing army. This seems an irrepressible conflict. The founding fathers got to write the Constitution, and should have the advantage. They mucked up the wording, and some interesting court decisions have made it into a real contest.
The GCI report emphasizes that the Right to bear Arms was never an absolute Right. This is correct. Is there any right that can't be abused, that can be exercised without limits? However, look at the limits.
Some of the historical limits on the Right to bear Arms were prejudicial. Catholics in England, Blacks in the early US, US residents of Japanese heritage during World War II, were all denied rights including bearing Arms. Other US amendments cover discrimination according to Race or Religion. While there is no hiding these incidents happened, no one proposes that similar abuses should be made part of current law.
The other historical limitations on the Right to bear Arms might be covered by a common sense metaphor. "Your right to swing your fist around ends where my nose begins." Freedom of Speech does not block libel laws, and does not protect yelling "fire" in a crowded theater. Similarly, at various times and places, arms could not be carried in the presence of the king's ministers, at fairs, in a manner intended to intimidate or terrify, by convicted felons, or by the mentally handicapped. Such limitations are entirely in line with other limits placed on other Rights.
In proposing a law which restricts a constitutionally protected Right, the law must be narrowly and specifically defined, must protect the people or their rights, the protection of one individual or his rights must clearly outweigh the loss of rights by others, and the primary intent of the law may not be to infringe upon a protected right. Some "friendly fire" damage to the Bill of Rights can be reluctantly forgiven to achieve a truly worthy end, but the Bill of Rights cannot be the intended target.
Most examples from pre-Revolutionary times fit such a context. Any modern gun control measures should also pass the same sort of tests applied when infringing upon the rest of the Bill of Rights.
GCI is also accurate in saying the emphasis of the Militia debate when framing the Constitution and the Bill of Rights was in balance of power between state and federal government. Who pays for, trains, equips and directs the Militia? This was a difficult and hard fought decision. The compromises worked out are not, however, in the Bill of Rights, but in Article I, section 8, defining the Powers of Congress. These include...
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in 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;
GCI is correct that there was no debate on whether the people should be armed. There was no debate on whether the people should use their arms in self-defense. There was no debate on whether the people could use their arms to hunt. GCI uses this quite real lack of debate to surmise that the founding fathers intended arms to be used only to help the states check the federal government or to repeal invasion. In an age with no police forces, the people were not supposed to defend themselves? In a wilderness culture, the people were not supposed to hunt?
There was no debate because the founding fathers were in agreement on the subject. Given the culture and history of the time, the Militia had to defend the community. Hunting was not a just sport, but a significant source of food. Yes, local laws were and remain on the books restricting use of force in self-defense. No, the Right to keep and bear Arms is not a 007 style license to kill. No, the Second Amendment does not forbid game laws setting hunting seasons and protecting game populations. However, it would be absurd and intellectually dishonest to suggest the people were expected to keep and bear Arms in that time and place, but never discharge them.
The draft Second Amendment actually contained three distinct principles, an individual Right of the people to bear Arms, as proposed by Pennsylvania, a collective protection of the Militia, as proposed by Virginia, and a Right of conscientious objection to Militia duty. The last was struck. The order of the first two was reversed. Madison proposed...
[t]he right of the people to keep and bear arms shall not be infringed; a well armed but well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
By granting Pennsylvania's individual Right to bear Arms, Virginia's collective Right to a Militia is also being guaranteed. Madison was giving honor to both states, and achieving the purpose of both states, thus neither state objected. GCI's interpretation defeats the purpose of both states. Neither Pennsylvania's desire for an individual Right to bear Arms nor Virginia's desire for a Militia that cannot be disarmed by the federal government is achieved under GCI's interpretation. Thus, the proper legal term for GCI's interpretation is anathema.
GCI notes that the true Militia withered and faded away during the 19th Century. This was true enough in the north. A well regulated Militia being necessary to the security of a slave state, it was far less true in the south before the Civil War. John Brown's Harper Ferry raid is a good example of how the Militia is supposed to work. Well before Robert E. Lee and the US Marines showed up, local men had the situation contained.
Southern Militia also frequently harassed Yankee columns during the War proper. The Yankees, in turn, came to appreciate the Redcoat's Revolutionary War opinions. If the (expletive deleted) Rebel farmers want to fight, they should join the (expletive deleted) army. While such an opinion is entirely understandable, their Revolutionary forefathers would have blessed the Militia harassment tactics. The Militia was not only exercising their Rights, they were performing their Duty.
While this little piece of history has no direct bearing on the modern gun control debate, it should be noted that the Yankees wrote the history books, and appointed the Supreme Court justices. From the Civil War on, Washington DC's enthusiasm for an armed populace was much less. So long as Union veterans were running the War Department, the regular army would get far more work, funding, and training than the Militia. This may have been how the cultural respect once given the Militia was lost, the fear of standing armies was lost, and why the Militia was allowed to deteriorate.
GCI was again correct that by the early 20th century, the true Militia - the able bodied local men reporting to the town green with personal weapons - had become useless as a fighting force. GCI is also correct that the National Guard was formed at this time, and started training to perform functions that the Militia once would have performed.
They are incorrect in claiming that because Congress exercised its powers "to raise and support Armies", the laws "for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" were in any way changed. The legal status of the Militia was not changed at this time, the government's ability to disarm them was not changed, nor was their martial status changed. They were and remained useless, forgotten, but protected from federal disarmament.
As a side note, it was at this time the US started becoming an international power. Militia could be used to "execute the Laws," "suppress Insurrections and repel Invasions." Using them for foreign imperialistic adventures was right out. Perhaps to bypass this constitutional limitation on use of Militia, the Congress created the National Guard using their power to "raise and support Armies". Thus, to claim that the National Guard is the Militia is entirely incorrect. The National Guard was created using a distinctly different Congressional authority.
Again, the Militia laws at a constitutional level were not changed at this time, or since. Scan the Constitution's Amendments. Excepting the Second Amendment and peripherally the Third and Fifth, none of them effect the militia or the armed forces. The war and militia powers of the Constitution have stood unchanged since 1791. To propose that the creation of the the National Guard, an act of Congress, changes the meaning of the Bill of Rights, without ratification by the two thirds of the States, indicates either a total ignorance of constitutional law, or similar lack of intellectual integrity.
Congress, under Article I Section 8 of the Constitution, may "provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in 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;"
The States name officers. This was intended as an assurance that the Militia would remain loyal to the state government. However, Congress specified discipline. The manual of arms and other regulations regarding marching, tactics and doctrine were to be uniform across the country. Thus, should the Militia be called for a major emergency, the commands and responses would be common. Units from various states could operate in cooperation.
GCI is correct in that Congress has not exercised the power to organize Militia in a long time. However, this implies that the latest militia manuals are very much obsolete. I'm guessing they date to mid-19th Century. Was anything done during World War II? I am trying to get a copy of the current militia training manuals, just for amusement value.
Still, the Congressional Power to organize the Militia could become another front of the gun control debate. Gun Control advocates have had mechanisms to take guns out of the hands of the people. There has been no mechanism to make it clear certain guns should remain. If Congress approved new manuals that specified what weapons a militiaman should carry when reporting to duty, could any state have a claim to be able to restrict keeping or bearing these weapons? Should Congress also specify a militia chain of command? Any militia acting without specific orders from state appointed officers must defer to any state, local and federal officers or agents, whether these be law enforcement, regular armed forces, or select militia? What training should be given to an armed individual who, by law, could in theory at any time be called to defend his home, his town, his state, or his country?
While the Equal Rights Amendment didn't pass, should the ladies be equal players? If some seem to be claiming that only militia arms may be carried by members of the militia, should female officers of the National Guard be the only women with a Right to bear Arms?
Any group of adult males can quite properly call itself a militia, or perhaps part of The Militia, but doing so opens the group to being ordered about if their state decides to appoint militia officers. Have any of the states considered sending correctly appointed officials to crash the new wave of private militia groups?
If the militia is an idea whose time has returned, has it occurred to anyone that if something is to be done, it should be done right? Perhaps this principle should apply more to groups of armed men wandering about, getting ready to enforce Laws, suppress Insurrections and repel Invasions, than other realms of human activity?
Britain and the United States no longer have similar arms traditions. While in medieval times England pioneered the armed population - and it served them well on many occasions - their right to bear arms no longer exists. Therefore, let us not focus on similarities, but on two major differences.
The first is that it is hard to change the US Constitution. The English Bill of Rights is very important as a philosophical principal and historical milestone. Still, it was a mere act of Parliament. A majority vote by both houses of Parliament, and it was gone. It is much more difficult to get consent of enough states to change the US Constitution.
A second difference is that Britain has more recently had an invasion scare. In the early 1940s, Winston Churchill and Adolph Hitler had a serious disagreement. Churchill acquired lend lease rifles from the US, and armed his people with the best modern infantry equipment he could get his hands on. The spirit of the times is reflected by the following.
Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail. We shall go on to the end, we shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.
That reflects the intent of the US founding fathers. The US Constitution gives Congress the Power to call up the militia to repel invasions. The people have a Duty to answer this call. The People have the Right to keep and bear the correct equipment to perform their Duty. As the US Constitution cannot be changed rapidly, the militia is legally on permanent war footing. Any state or federal law that would have inhibited Franklin Roosevelt or his Congress from mobilizing the United States as thoroughly as Churchill mobilized Britain is thus unconstitutional. Any law that prohibits the People from arming themselves to that same degree, with aid and encouragement from the government, or in response to a perceived threat from the government, is equally unconstitutional.
Whether this should be the law of the land is another question. Perhaps the Bill of Rights needs to be changed. If so, let the constitution be changed by proper constitutional means. A precedent of allowing the government to bypass the Bill of Rights is untenable.