Thursday, February 10, 2011

2nd Amendment

Temecula Constitution Study with Douglas V. Gibbs, February 10, 2011

-- 2nd Amendment.

There are three arguments when it comes to the 2nd Amendment:

1. That the 2nd Amendment only applies to the federal government
2. That the 2nd Amendment applies to the states too, because of the 14th Amendment.
3. That the 2nd Amendment is a national security issue, so the states may not ban guns.

When studying the original intent of the Founding Fathers, we must ask ourselves which of the above statements is the one that fits in best with the original intent of the Founding Fathers.

The U.S. Militia

Gun control debates often focus on the relevance of the Second Amendment’s call for a "well regulated militia" in light of our modern organized military.

"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." – The Second Amendment to Constitution of the United States.

Specifically, the argument is made that the US either no longer has a militia, or that the National Guard now serves as the militia envisioned by the Founding Fathers.
But, in fact, Title 10 of the United States Code provides for both "organized" and "unorganized" civilian militias. While the organized militia is made up of members of the National Guard and Naval Militia, the unorganized militia is composed entirely of private individuals.
United States Code: Title 10 – Armed Forces
Subtitle A – General Military Law
Chapter 13 – The Militia
Sec. 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.

Other than age, health, gender, or citizenship, there are no additional provisions for exemption from membership in the unorganized militia.
While it is doubtful that it will ever be called to duty, the United States civilian militia does legally exist.

The Militia Act of 1903 (32 Stat. 775), also known as the Dick Act, was initiated by United States Secretary of War Elihu Root following the Spanish–American War of 1898, after the war demonstrated weaknesses in the militia, and in the entire U.S. military.

U.S. Senator Charles W. F. Dick, a Major General in the Ohio National Guard and the chair of the Committee on the Militia[1], sponsored the 1903 Act towards the end of the 57th U.S. Congress. Under this legislation, passed January 21, 1903, the organized militia of the States were given federal status to the militia, and required to conform to Regular Army organization within five years. The act also required National Guard units to attend 24 drills and five days annual training a year, and, for the first time, provided for pay for annual training. In return for the increased Federal funding which the act made available, militia units were subject to inspection by Regular Army officers, and had to meet certain standards.

The increase in Federal funding was an important development. In 1808 Congress had allocated $200,000 a year to arm the militia; by 1887, the figure had risen to only $400,000. But in 1906, three years after the passage of the Dick Act, $2,000,000 was allocated to arm the militia; between 1903 and 1916, the Federal government spent $53,000,000 on the Guard, more than the total of the previous hundred years.
With the increase in Federal funding came an increase in paperwork and bureaucracy. Before the passage of the Dick Act, militia affairs had been handled by the various bureaus of the War Department, as the subject dictated. But the 1903 act authorized, for the first time, the creation of a separate section responsible for National Guard affairs. Located in the Miscellaneous Division of the Adjutant General's office, this small section, headed by Major James Parker, Cavalry, with four clerks, was the predecessor of today's National Guard Bureau.

This section remained under the supervision of the Adjutant General's Office until War Department Orders on February 12, 1908 created the Division of Militia Affairs in the Office of the Secretary of War. The act also provided for "necessary clerical and official expense of the Division of Militia Affairs." Lieutenant Colonel Erasmus M. Weaver, Coast Artillery Corps, assumed duties as the division's first Chief. An increasing volume of business meant more personnel, and the four clerks had by this time increased to 15.
The Division remained a part of the Office of the Secretary of War until July 25, 1910 when the Chief was directed to report directly to the Army Chief of Staff. The Division continued to perform under the direct jurisdiction of the Chief of Staff until the passage of the National Defense Act of June 3, 1916. Then the Division of Militia Affairs became the Militia Bureau of the War Department, under the direct supervision of the Secretary of War.

McDonald v. City of Chicago:

The 5-4 Decision holds that the 2nd Amendment protects the right to keep and bear arms in all cities and States. The U.S. Supreme Court concluded that originally the 2nd Amendment applied only to the Federal Government, but it is in the opinion of the court that the 14th Amendment incorporates the Bill of Rights, therefore applying those amendments, and more specifically the 2nd Amendment, to the States.

I believe that the U.S. Constitution applies to the federal government except where specifically noted otherwise.

After the decision many people called me saying, “We won!”

I said, "I am not so sure."

I am uneasy anytime the federal government tells a city or state what they have to do. I am happy about the protection of gun rights, but that does not mean I am in agreement with the constitutional angle used.

Let me put it this way. If we give the federal government the right to tell cities they have to allow gun ownership, what stops them from doing the opposite later? This case creates a precedent of allowing the federal government to dictate to the states and cities what they have to do, and in that I recognize a great danger to state sovereignty.


Special Thanks to: Faith Armory, 27498 Enterprise Cir. W #2, Temecula, CA 92562
951-699-7500, - For providing us with a classroom to meet in.

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