Except for a few extremists who claim to want to ban guns, why would anyone think that registration would "invariably" lead to confiscation?

I don't know if that is a settled fact, but it is most certainly an area of contention. That gun control laws control crime is not a settled fact either.

You bring up a California case where registration led to the seizure of semi-auto weapons "for no good reason." Can you cite this?

In response to the furor over Patrick Purdy and his firearm, the California legislature defined and banned the "assault weapon." In 1989, it passed the Roberti-Roos bill, which listed roughly 70 firearms, generally identified by make and model and required owners of these guns to register them with the state. Additionally the legislature further defined "assault weapons" to include guns with specific characteristics such as pistol grips, magazine capacity, and other cosmetic features. The law was so draconian that even after gun-owners registered their rifles, the guns could not be sold or bequeathed.

Due to poor registration compliance, the legislature also included money for an "education campaign" and extended the grace period for registration until March 1992. If a gun owner was caught with an unregistered gun after that date and prosecuted, it was possible for him to register the offending firearm, thereby reducing the felony to an infraction, and get his gun back. Former Republican Attorney General Dan Lungren, not wishing to further alienate gun owners, as he was planning to run for Governor in 1998, extended the registration date, causing Handgun Control, Inc.(HCI) to file suit.

When Democrat Bill Lockyear, an avowed gun prohibitionist, became Attorney General in 1999, he dropped opposition to HCI’s lawsuit, thereby invalidating every post-1992 registration and causing all those legally-owned firearms to become illegal.

I have oftern heard the claim made again today by musterion that registration leads to confiscation. Do you know of any historical evidence beyond the California case above, which I hope you will cite for me where this has been proven?

The Nazi Weapons Law of 1938 replaced a Law on Firearms and Ammunition of April 13, 1928. The 1928 law was enacted by a center-right, freely elected German government that wanted to curb "gang activity," violent street fights between Nazi party and Communist party thugs. All firearm owners and their firearms had to be registered. Sound familiar? "Gun control" did not save democracy in Germany. It helped to make sure that the toughest criminals, the Nazis, prevailed.

The Nazis inherited lists of firearm owners and their firearms when they 'lawfully' took over in March 1933. The Nazis used these inherited registration lists to seize privately held firearms from persons who were not "reliable." Knowing exactly who owned which firearms, the Nazis had only to revoke the annual ownership permits or decline to renew them.

In 1938, five years after taking power, the Nazis enhanced the 1928 law. The Nazi Weapons Law introduced handgun control. Firearms ownership was restricted to Nazi party members and other "reliable" people.

The 1938 Nazi law barred Jews from businesses involving firearms. On November 10. 1938 -- one day after the Nazi party terror squads (the SS) savaged thousands of Jews, synagogues and Jewish businesses throughout Germany -- new regulations under the Weapons Law specifically barred Jews from owning any weapons, even clubs or knives.

In 1996, Australia adopted draconian gun control laws banning certain guns (60 percent of all firearms), requiring registration of all firearms and licensing of all gun owners.

In Australia today, police can enter your house and search for guns, copy the hard drive of your computer, seize records, and do it all without a search warrant. It's the law that police can go door to door searching for weapons that have not been surrendered in their much publicized gun buy-back program. They have been using previous registration and firearm license lists to check for lapses and confiscate non-surrendered firearms.

New York City required rifle owners to register their guns in 1967; city council members at that time promised that the registration lists would not be used for a general confiscation of law-abiding citizens' weapons. Roughly one million New Yorkers were obliged to register with police. The New York Times editorialized on September 26, 1967:

"No sportsman should object to a city law that makes it mandatory to obtain a license from the Police Department and to register rifles. . . . Carefully drawn local legislation would protect the constitutional rights of owners and buyers. The purpose of registration would be not to prohibit but to control dangerous weapons."

In 1991, New York City Mayor David Dinkins railroaded a bill through the city council banning possession of many semiautomatic rifles, claiming that they were actually assault weapons. Scores of thousands of residents who had registered in 1967 and scrupulously obeyed the law were stripped of their right to own their guns. Police are now using the registration lists to crack down on gun owners; police have sent out threatening letters, and policemen have gone door-to-door demanding that people surrender their guns, according to Stephen Halbrook, a lawyer and author of two books on gun control.

Whether or not the LEO attitudes would have been different during the Revolutionary period is not the issue? The issue is public safety.

LEO have to deal with people who do not wish to be confronted by the officer.

Everytime the go on patrol they know that their uniform can cause them to be threatened from people.

I would think thus they have a reason to feel threatened by people who carry weapons both openly and concealed.

This why, as I understand, generally LEO have been against carry laws.

Yet you did not answer my question, don't you think there is an inherent threat in open carry laws that mistakes will be made as to threats?

Do you think that these potential mistakes are outweighed by the open weapons ability to deter assaults?

With second question, I would like you to consider that not all people and I think most people will not carry weapons.

I respect people's rights to own weapons. I do not own a weapon. Basically because I can't afford and have no cause for one because I don't hunt or get to go to the shooting range too often, but I understand people's desire to own a weapon. Yet by its definition owning a weapon is a threat to other people. The owner of weapon is declaring their intention to defend themselves with deadly force if assaulted. Thus the idea of some regulation of this right seems logical.

If the regulation does not help ensure public safety, then there is no longer a point to the legislation.

Yet not all carriers of weapons will be law-abiding even if they obtained the weapon and the carry license legally.

LEOs know this and will most certainly feel threatened if they see weapon.

I will declare now that I am not a LEO and if someone demonstrates to me that a majority of LEOs feel differently than I, I will withdraw my claim.

But from a common sense perspective a LEO does not know the person that they see is law-abiding and they will thus be more concerned which can lead to situations that endanger public safety.

This may be different for smaller communities, but in big cities I believe it is most certainly the case.

Tyrannies cannot share "power" with "the People", else they are no longer tyrannies. An armed "people" has power. As long as a government is not a tyranny, firearms registration might be benign.

Unfortunately "power corrupts". In the US, firearms registration, even on the local level, have fomented tyrannies. The case of State sponsored racism in the South is an example. Additionally, such systems often lead to corruption, as in New York City, where only those with political influence can register firearms.

I was waiting for you to bring up the right to keep and bear arms under 2nd amendment. I have never understood why gun rights activists cannot seem to read the full amendment. The amendment reads "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 word regulated is in the amendment. No other amendment has similar qualifying language.

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

If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right? And if you wanted to know about desert warfare, the man to call would be Norman Schwartzkopf, no question about it. But who would you call if you wanted the top expert on American usage to tell you the meaning of the Second Amendment to the United States Constitution?

That was the question I asked A.C. Brocki, editorial coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of American Usage and Style. The Consensus.

A little research lent support to Brocki's opinion of Professor Copperud's expertise.

Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for Editor and Publisher, a weekly magazine focusing on the journalism field.

He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, American Usage and Style: The Consensus, has been in continuous print since 1981, and is the winner of the Association of American Publisher's Humanities Award.
That sounds like an expert to me.

After a brief telephone call to Professor Copperud in which I introduced myself but did not give him any indication of why I was interested, I sent the following letter:

"I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

"The text of the Second Amendment is, '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 debate over this amendment has been whether the first part of the sentence, 'A well-regulated Militia, being necessary to the security of a free State,' is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, 'the right of the people to keep and bear Arms, shall not be infringed.'

"I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."

My letter framed several questions about the text of the Second Amendment, then concluded:

"I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance."

Questions and Answers

After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the following analysis (into which I have it italicized my questions for the sake of clarity):

The words "A well-regulated militia, being necessary to the security of a free state," contrary to the interpretation cited in your letter of July 26, 1991, constitutes a present participle, rather than a clause. It is used as an adjective, modifying "militia," which is followed by the main clause of the sentence (subject "the right," verb "shall"). The right to keep and bear arms is asserted as essential for maintaining a militia.

In reply to your numbered questions:

(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to "a well-regulated militia"?
The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.

(2) Is "the right of the people to keep and bear arms" granted by the words of the Second Amendment, or does the Second Amendment assume a pre-existing right of the people to keep and bear arms, and merely state that such right "shall not be infringed"?

The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.

(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia, is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?

No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.

(4) Does the clause 'A well-regulated Militia, being necessary to the security of a free State, " grant a right to the government to place conditions on the "right of the people to keep and bear arms, " or is such right deemed unconditional by the meaning of the entire sentence?

The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.

(5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped, " "well-organized, " "well-drilled, " "well-educated, " or "subject to regulations of a superior authority"?
The phrase means "subject to regulations of a superior authority;" this accords with the desire of the writers for civilian control over the military.

(6) If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not take into account historical interpretations of the intents of the authors, unless those issues cannot be clearly separated.
To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."

(7) As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence:
"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."
My questions for the usage analysis of this sentence would be,
(A) Is the grammatical structure and usage of this sentence and the way the words modify each other identical to the Second Amendment's sentence?; and
(B) Could this sentence be interpreted to restrict "the right of the people to keep and read Books" only to "a well-educated electorate" -- for example, registered voters with a high-school diploma?
(A) Your "scientific control" sentence precisely parallels the amendment in grammatical structure.
(B) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.

Concluding Comment
Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."
So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all governments formed under the Constitution from abridging that right.
As I write this, the attempted coup against constitutional government in the Soviet Union has failed, apparently because the will of the people in that part of the world to be free from capricious tyranny is stronger than the old guard's desire to maintain a monopoly on dictatorial power.
And here in the United States, elected lawmakers, judges, and appointed officials who are pledged to defend the Constitution of the United States ignore, marginalize, or prevaricate about the Second Amendment routinely. American citizens are put in American prisons for carrying arms, owning arms of forbidden sorts, or failing to satisfy bureaucratic requirements regarding the owning and carrying of firearms -- all of which is an abridgement of the unconditional right of the people to keep and bear arms, guaranteed by the Constitution. Even the American Civil Liberties Union (ACLU), staunch defender of the rest of the Bill of Rights, stands by and does nothing.
It seems it is up to those who believe in the right to keep and bear arms to preserve that right. No one else will. No one else can. Will we beg our elected representatives not to take away our rights, and continue regarding them as representing us if they do? Will we continue obeying judges who decide that the Second Amendment doesn't mean what it says it means but means whatever they say it means in their Orwellian doublespeak?
Or will we simply keep and bear the arms of our choice, as the Constitution of the United States promises us we can, and pledge that we will defend that promise with our lives, our fortunes, and our sacred honor? From: The Text of the Second Amendment

Thus I don't see how this can mean that the right is as absolute as other rights in the bill of rights or as you claim.

Thus I don't that the state has to "prove" that their "compelling state interest" is true, but just that this is their reasoning for the provision. I always thought that it was required for the opponents of the said provision to demonstrate that the "compelling state interest" is false. Perhaps I am reading the law wrong, but I don't think so since the courts have consistently backed the state's right to regulate guns since the late 19th century.

Militias, of course, were the objects of the state and thus would be regulated by the state. I have thought that gun rights activists would have a point if they said that the federal government cannot regulate weapons, because militias were state-controlled, but I've never heard this argument made. It is my belief that just as the militias can be forced into the regular military forces, so thus the federal government gains the right to regulate weapons. Yet here you are saying that states can't regulate weapons. That just does not make sense to me.

Finally, as to your point about the registration in California leading to a ban. That 1989 law that you cite WAS the ban. Any registration must have been part of the ban. Thus, it was not passed prior to the ban and therefore would not confirm your point that registration would inevitably lead to a ban, because the ban was already in place before the registration.

Existing law, the Roberti-Roos Assault Weapons Control Act of 1989, generally prohibits the sale, manufacture, distribution, transport, import, possession, or lending of assault weapons in California. Violations of the act are generally a felony; possession is punishable as a misdemeanor/felony (with an "exception" punishable as an infraction). The act contains a list that enumerates the designated semiautomatic rifles, pistols, and shotguns that are assault weapons and subject to the Act. (Penal Code sections 12280 and 12276)

The Roberti-Roos Act contains legislative intent language which concludes that it is not the intent of the Legislature in enacting Roberti-Roos ". . . to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities." (Penal Code section 12275.5)

The Attorney General is authorized to file a petition in Superior Court to declare that additional weapons are to be subject to the act's prohibitions on the basis that those weapons are essentially identical to weapons on the list of prohibited assault weapons. (Penal Code section 12276.5)

Persons who lawfully possessed an assault weapon prior to June 1, 1989, were allowed a period of time to register such weapons with the Department of Justice and to keep such weapons subject to specified restrictions. Any persons lawfully owning weapons subsequently added by the Superior Court to the prohibited category of weapons will be allowed a period of time to register and keep those weapons as well. (Penal Code section 12285)

Yet that does not mean that the state has no reasonable right to regulate.

I think a good argument can be made that, assuming an absolute right to have a weapon is true, carrying a concealed weapon is a broad privilege in the sense of driving is a privilege. The assumption is that a citizen has the privielge unless there is reason to believe that they should not have that privilege.

For starters, no handgun can be registered in D.C. Even those pistols registered prior to the District's 1976 ban cannot be carried from room to room in the home without a license. Moreover, all firearms in the home, including rifles and shotguns, must be unloaded and either disassembled or bound by a trigger lock. In effect, no one in the District can possess a functional firearm in his or her own residence. The law applies not just to "unfit" persons like felons, minors, or the mentally incompetent, but across-the-board to ordinary, honest, responsible citizens.

First, I am impressed that you went to such a length to determine what 18th century definition of "well-regulated." This must be an issue of singular importance to you.

Guess whose does? Yeah, that's right its Supreme Court. The Supreme Court determined in 1886 in Presser v. Illinois and subsequent cases in the 1890's that the second amendment does not prevent the state from making laws concerning gun ownership and formation of militaristic societies outside the scope of the government.

A. Dred Scott

Dred Scott may be the best-known case decided by the antebellum Supreme Court. Even persons who think that "Marbury vs. Madison" was an important boxing match may have some passing familiarity with "Dred Scott." The Dred Scott case is sometimes found among Standard Model articles on the Second Amendment,(285) but is entirely absent from the anti-individual right articles.

Chief Justice Taney's majority opinion held that a free black could not be an American citizen. To support this conclusion, Justice Taney enumerated the parade of horribles which would follow from American citizenship for blacks: they would have the right to "the full liberty of speech in public and private upon all subjects upon which its [a state's] own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."(286)

Another part of the opinion explained that Congress had no power to infringe upon civil liberty (including, from the Taney Court's viewpoint, the right to possess property in the form of slaves) in the territories:

[N]o one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances. . . .

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding . . . .(287)

The above statement, which treated the right to arms as one of several enumerated constitutional rights belonging to individuals, was widely quoted during the debates over slavery and popular sovereignty.(288)

Dred Scott, while never formally overruled, is not good law today, having been deliberately invalidated by section one of the Fourteenth Amendment. The purpose in discussing Dred Scott is not to cite it as binding precedent, but to acknowledge it as one of several nineteenth-century Supreme Court cases involving the right to arms--all of which, as we shall see, treat the Second Amendment as an individual right.

Notes:
285. 284. See, e.g., Kates, Handgun Prohibition, supra note 1, at 246; Kopel &Little, supra note 1, at 526.

286. 285. Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1856). Of course, Chief Justice Taney did not explicitly say "and the right to keep and bear arms wherever they went, which is guaranteed by the Second Amendment," any more than he explicitly said "the right to hold public meetings upon political affairs, which is guaranteed by the First Amendment."

287. 286. Id. at 450.

288. 287. See, e.g., Stephen Douglas, The Dividing Line Between Federal and Local Authority: Popular Sovereignty in the Territories, Harper's, Sept. 1859, at 519, 530.

One other slavery case involving a Supreme Court Justice should be mentioned. In 1833, two months after Barron v. Baltimore was decided, Supreme Court Justice Henry Baldwin, while circuit-riding, listed the Second Amendment among the individual rights protected by the U.S. Constitution, and implied that the Second Amendment was binding on the states. See Johnson v. Tompkins, 13 F. Cas. 840 (C.C.E.D. Pa. 1833) (No. 7416). The case of Johnson v. Tompkins arose out of a slave-owner's lawsuit against a Pennsylvania constable who had arrested the slave-owner for kidnapping and breach of the peace while the slave-owner was attempting to recapture an alleged runaway slave. After the slave-owner, Johnson, was acquitted of the criminal charges, he sued Tompkins and the others who had arrested him and had interfered with his attempt to recapture his slave property. (Justice Baldwin instructed the jury that although slavery's existence "is abhorrent to all our ideas of natural right and justice," the jury must respect the legal status of slavery. Id. at 843.)

As part of the jury charge, Justice Baldwin listed some of the constitutional rights possessed by the plaintiff, Johnson. Justice Baldwin listed the Pennsylvania Constitution's right to acquire, possess, and protect property; the Pennsylvania Constitution's bar on deprivation of property except "by the judgement of his peers, or the law of the land"; and the Pennsylvania Constitution's "right of citizens to bear arms in defence of themselves and the state." Id. at 850. Justice Baldwin then began listing Johnson's rights under the U.S. Constitution--the Article IV guarantee that "the citizens of each state shall be entitled to the privileges and immunities of citizens in the several states"; the prohibition on state impairment of the obligations of contract--and then stated that "[t]he second amendment provides, 'that the right of the people to keep and bear arms shall not be infringed.'" Id. The rights litany concluded with the ban on deprivation of property without due process. See id. Additionally, Justice Baldwin explained the U.S. Constitution's fugitive slave clause. See id. at 850-51.

Justice Baldwin's list of rights made it clear that each of the rights, including the Second Amendment right to arms, was a personal right, since the right belonged to the plaintiff. Since Johnson's lawsuit was against an employee of a subdivision of the Pennsylvania state government, Justice Baldwin's listing of the Second Amendment implied that Justice Baldwin considered the Second Amendment to be a restriction on state actions against individuals.

In 1837, Justice Baldwin wrote A General View of the Origin and Nature of the Constitution of the United States. See Henry Baldwin, A General View of the Origin and Nature of the Constitution of the United States (N.Y., Da Capo Press 1970) (1837). The book focused on the political status of the states and the people, examining the transitions from colony to independent states to confederated states to parties to the Constitutional compact. The book did not address the Second Amendment or the militia.

B. Cruikshank

Under the authority of the new civil rights laws, federal prosecutors brought many cases against white defendants who, alone or in groups, had violated the civil rights of freedmen. These defendants were frequently charged with violating the Second Amendment rights of freedmen by taking their firearms.(360)

Eventually, the federal prosecutions made their way to the Supreme Court in United States v. Cruikshank.(361) Cruikshank involved the aftermath of the 1872 elections in Louisiana. Following the elections, two separate governments--one Unionist and one racist--declared themselves the winner and the official government of the state. In the town of Colfax, armed blacks occupied the courthouse and the surrounding district to assert the legitimacy of their side's control of the local government. Atrocities had been committed on both sides; a rioting band of white farmers attacked the courthouse, burned it to the ground, and murdered blacks who tried to escape the flames. Klansman William Cruikshank and other leaders of the riot were tried in federal district court for violating federal civil rights laws. By the terms of the Enforcement Acts,(362) the trial court found Cruikshank guilty of conspiring to deprive the blacks of their Constitutional rights, including the right to assemble peaceably and the right to bear arms.(363)

The Cruikshank case forced the United States Supreme Court to squarely address the issue of whether the enumerated provisions of the Bill of Rights were made enforceable against the states by the Fourteenth Amendment and the Congressional laws enacted pursuant to the Amendment. The issue had arisen a few years before, in a federal prosecution of South Carolina Klansmen for conspiring to deprive blacks of their arms and to destroy the black militias. There, the lower federal courts had held that the Fourteenth Amendment did not incorporate the Bill of Rights. The Supreme Court evaded review on procedural grounds.(364)

In Cruikshank, the Supreme Court held the Enforcement Acts unconstitutional. The Fourteenth Amendment, the Court acknowledged, did give Congress the power to prevent interference with rights granted by the Constitution. However, the Court held that the right to assemble and the right to arms were not rights granted or created by the Constitution. The first part of the opinion explained:

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It "derives its source," to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, "from those laws whose authority is acknowledged by civilized man throughout the world." It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection.(365)

The Court further explained that the right to arms is a fundamental human right:

The right . . . of "bearing arms for a lawful purpose" . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress . . . leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called . . . the "powers which relate to merely municipal legislation . . . ."(366)

Cruikshank thus asserted that the Second Amendment protected, but did not create, the individual's right to bear arms; the right instead derives from natural law. The Court's position that people must look to local governments "for their protection against any violation by their fellow-citizens of the rights" that the Second Amendment recognizes is comprehensible only under the individual rights view. If individuals have a right to own a gun, then individuals can ask local governments to protect them against "fellow-citizens" who attempt to disarm them. In contrast, if the Second Amendment right belongs to the state governments as protection against federal interference, then mere "fellow-citizens" could never infringe that right by disarming mere individuals.

The Cruikshank decision completed the work begun by The Slaughter-House Cases, ruining the Fourteenth Amendment as a check on most state abuses of the Bill of Rights until the 1920s.(367)

Although no longer good law, the case clearly approaches the Second Amendment from an "individual right" perspective.

360. 359. See Kermit L. Hall, Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan Trials, 1871-1872, 33 Emory L.J. 921 (1984).

361. 360. 92 U.S. 542 (1876).

362. 361. See 16 Stat. 140 § 6 (1870); see also 18 U.S.C. §§ 241-242 (1994).

That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another . . . or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States . . . .

Id.

363. 362. See George C. Rable, But There Was No Peace: The Role of Violence in the Politics of Reconstruction 125-29 (1984).

364. 363. See United States v. Avery, 80 U.S. (13 Wall.) 251 (1871); United States v. Crosby, 25 F. Cas. 701, 701-05 (D.S.C. 1871) (No. 14,893). The cases are discussed in Hall, supra note 359, at 921.

365. 364. Cruikshank, 92 U.S. at 551 (emphasis added). A subtext of the opinion was that the Reconstruction government of Louisiana had encouraged blacks to assemble armed, knowing that disturbances would result; hence, it was the state government's responsibility (not the Supreme Court's) to protect blacks from disarmament and interference with their right to assemble.

366. 365. Id. at 553 (quoting New York v. Miln, 36 U.S. (11 Pet.) 125, 139 (1837)); cf. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 92 (1822) ("The right [to arms in the Kentucky Constitution] existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms.").

367. 366. Robert Palmer writes that "United States v. Cruikshank accomplished the nullification of the fourteenth amendment that scholars traditionally attribute to Slaughter-House." Robert C. Palmer, The Parameters of Constitutional Reconstruction: Slaughter-House, Cruikshank, and the Fourteenth Amendment, 1984 U. Ill. L. Rev. 739, 762. Palmer argues that Justice Waite's opinion in Cruikshank misread Slaughter-House, and wrongly assumed that state and federal privileges and immunities were absolutely distinct. See id.

Cruikshank was overruled by implication by DeJonge v. Oregon, 299 U.S. 353 (1937), which held, directly contrary to Cruikshank, that the right to assemble peaceably was guaranteed by the Fourteenth Amendment. Because Cruikshank had applied identical reasoning to find that the First Amendment (assembly) and Second Amendment (arms) were not protected by the Fourteenth Amendment, Cruikshank may not be good law today with regard to the Fourteenth Amendment's protection of the right to bear arms.

One other Reconstruction Supreme Court case touched on the right to arms. Cummings v. Missouri was an 1866 case growing out of the 1865 Missouri Constitution, which imposed numerous civil disabilities--prohibitions on engaging in various professions, holding certain types of property, and holding government office--on persons who had supported the Confederate cause. Cummings v. Missouri, 71 U.S. 277 (1866). The State of Missouri defended the disabilities on the grounds that deprivations of civil rights were not punishment. The Supreme Court disagreed. Justice Stephen Field's majority opinion observed that:

In France, deprivation or suspension of civil rights, or of some of them, and among these is the right of voting, of eligibility to office, of taking part in family councils, of being guardian or trustee, of bearing arms, and of teaching or being employed in a school or seminary of learning, are punishments prescribed by her code.

Id. at 321. The Court then explained that a deprivation of civil rights in the United States must also be considered a form of punishment:

The theory upon which our institutions rest is, that all men have certain inalienable rights--that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in protection of these rights all are equal before the law. And deprivation or suspension of these rights for past conduct is punishment, and can in no otherwise be defined.

Id. at 321-22.

The Court struck down the relevant provisions of the Missouri Constitution as a bill of attainder, an ex post facto law, and a violation of due process. (The Missouri deprivations did not prohibit the ownership or carrying of arms in any way; instead the 1865 Missouri Constitution affirmed the right of the people of Missouri "to bear arms in defence of themselves and of the lawful authority of the State cannot be questioned." Mo. Const. art. I, § 8 (1865). Thus, there was no place for the Supreme Court to consider the Second Amendment as an objection to the Missouri civil rights deprivations.) The Court emphasized that the ex-confederates could be punished for participation in the rebellion according to laws which existed at the time of the rebellion, but that additional punishments could be not added after the fact. Id. at 327-29.

The Cummings principles remain valid law. For example, in 1965, the Supreme Court relied on Cummings to overturn a law which barred ex-Communists from becoming officers of labor unions. United States v. Brown, 381 U.S. 437, 447-48 (1965) (holding that a deprivation of civil rights is punishment; the Bill of Attainder clause is to be broadly construed).

Cummings raises interesting issues about modern gun control laws. The Supreme Court in Cummings labeled "bearing arms" a civil right, and insisted that a citizen may be deprived of civil rights only as the result of a conviction for a crime when the penalty for the crime was established before, rather than after, the commission of the crime. In the modern United States, in contrast, it is common for federal and state laws to impose additional punishments for a crime, long after the defendant has pled guilty and served his punishment. For example, a person might have pled guilty to federal tax evasion in 1954 and served a prison term or paid a fine. The punishment for the tax crime, as of 1954, did not include loss of the right to keep and bear arms. But in the Gun Control Act of 1968, the Congress banned the possession of firearms by anyone with a felony conviction--even felony convictions incurred long before 1968. 18 U.S.C. § 922(g)(1). The ban likewise extends retroactively to persons in various categories unrelated to crime, such as being dishonorably discharged from the military. Id. § 922(g)(6). Similarly, in 1994, Congress banned firearms possession by anyone with a misdemeanor conviction for domestic violence, no matter how long before 1994 the conviction occurred. Id. § 922(g)(9). The courts have upheld these retroactive prohibitions on the grounds that they do not impose any retroactive punishment; no one will be sent to prison unless they possess a firearm after the effective date of the law. See, e.g., United States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994). Thus, the modern courts adopt the position of the Missouri Attorney General (that deprivation of civil rights is not punishment; only prison, executions, and fines are punishment), and reject the position of the United States Supreme Court. A person dishonorably discharged from the standing army because of his objections to the Vietnam War is deprived of the constitutional protections which were accorded even to persons who had borne arms in rebellion against the federal army in the nineteenth century. It is not always true that modern courts protect civil rights and enforce the Constitution with more zeal than did their nineteenth century predecessors.

C. Presser

Labor and anti-labor violence, both in urban centers and in rural coal mines, became quite frequent in the latter part of the nineteenth century.(368) The major nineteenth century Supreme Court interpretation of the Second Amendment involved a group of German immigrants--Lehr und Wehr Verein(369)--marching in military exercise in public. The case grew out of an Illinois arms control measure enacted in response to the labor uprisings of the late 1870s. State militias and the federal army had brutally suppressed peaceful strikes. When workers began forming self-defense organizations such as Lehr und Wehr Verein, the state government outlawed private militias.(370)

A member of Lehr und Wehr Verein took the case to the United States Supreme Court, and lost. First, the unanimous Court stated that the Illinois laws "do not infringe the right of the people to keep and bear arms."(371) Thus, the right to own and carry guns does not include the right to carry guns in public as part of a large group on military parade.(372) Further, as Cruikshank had noted, the Second Amendment, under the Slaughter-House rationale, "is a limitation only upon the power of Congress and the National government, and not upon that of the States."(373)

In dictum, the Court stated that even though the Second Amendment did not limit state gun control, there was still a constitutional limit on state controls. The states could not disarm the public so as to deprive the federal government of its militia:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States . . . and, in view of this prerogative of the general government . . . the States cannot, even laying the constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.(374)

The militia thus includes "all citizens capable of bearing arms."(375)

Anti-individualist authors who discuss Cruikshank and Presser tend to emphasize the nonapplicability of the Second Amendment to the states, while gliding over the cases' clear understanding of an individual right to arms. Most Standard Model authors acknowledge Cruikshank and Presser as green lights for state gun control. The Standard Modelers argue, however, that Cruikshank and Presser should be repudiated in light of modern Fourteenth Amendment doctrine,(376) or that the two cases already have been repudiated by dicta in three modern cases listing "the right to keep and bear arms" as among the "full scope of the liberty" protected against state infringement by the Fourteenth Amendment.(377) Stephen Halbrook, one of the most important Standard Model authors, argues that the state gun control passages in Cruikshank and Presser are mere dicta; the holding of Cruikshank was that the Second Amendment could not be infringed by nongovernment actors, and the holding of Presser was that the Second Amendment was not infringed by a ban on armed parades.(378)

368. 367. See, e.g., Jeremy Brecher, Strike! (1997); Robert W. Bruce, 1877: Year of Violence (1989); Priscilla Long, Where the Sun Never Shines: A History of America's Bloody Coal Industry (1989); Philip Taft &Philip Ross, American Labor Violence: Its Causes, Character, and Outcome, in Violence in America: Historical and Comparative Perspectives 281-395 (Hugh Davis Graham &Ted Robert Gurr eds., 1969). Another historian writes:

One of the major themes in American urban history since the 1850s has been the struggle of municipal authorities and their business-class allies to gain a monopoly on the use of violence. The problem was not that the elected officials lacked a monopoly on the use of legally authorized violence; rather, they struggled to convince turbulent portions of the populace that all other violence was illegitimate.

Michael Feldberg, The Crowd in Philadelphia History: A Comparative Perspective, in Riot, Rout, and Tumult: Readings in American Social and Political Violence 142 (Roger Lane &John J. Turner, Jr., eds., 1978).

369. 368. This title translates to "teaching and defense union." Cramer, supra note 1, at 130.

370. 369. See Paul Avrich, The Haymarket Tragedy 45-46 (1984).

371. 370. Presser v. Illinois, 116 U.S. 252, 265 (1886).

372. 371. The Court's opinion was consistent with established common law limits on the right to arms which prohibited large, terrifying assemblies of armed men. See 1 Hawkins, supra note 96, at ch. 60.

373. 372. Presser, 116 U.S. at 265.

374. 373. Id. at 265-66.

375. 374. Id. at 265.

376. 375. See, e.g., Levinson, supra note 1, at 652-53.

377. 376. See Planned Parenthood v. Casey, 505 U.S. 833, 848 (1992); Moore v. East Cleveland, 431 U.S. 494, 502 (1977) (plurality opinion); Poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting).

378. 377. See Halbrook, Personal Security, supra note 1, at 343-44.
All above cites from: The Second Amendment in the Nineteenth Century" by David B. Kopel

Article. XIV.

[Proposed 1866; Ratified Under Duress 1868]

Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This though is similiar to an obscenity law with regards to the first amendment.

This does not prevent you from having possesion of firearms (including fully automatic weapons if you pay the taxes and your state allows them) or using them in your defense even in the case of an illegal carry (although state laws may disagree with me, but I am alluding to extraordinary circumstances.)

I would posit that California is an example of a state that banned assault weapons and thus reduced crime.

I am also going to quote the Brady centers answer to your question.

"Gun traces are one of the best measures of gun usage in crime."

I think that SCOTUS was right when they said that people retain the right to keep and bear arms, but that right is not absolute and can be regulated.

Civilians do not need to own weapons for them to participate in a militia.

Firearms are more prevalent today than they were in the past.

Finally, just because the founders saw no reason to regulate at the time does not mean they felt their was no reason to regulate weapons or that the state shouldn't.

Most people define assault weapons, as military-style weaponry. The more specific definitions are provided by the laws themselves. These laws state limits on the magazine, the grip, fold-up stock and so on. An example is a Tec-9 or Uzi.

Most people define assault weapons, as military-style weaponry.

By the time Miller was decided, the Bill of Rights had already been incorporated to apply to the states.

Aren't all the words of the constitution, except the preamble, meant to have an effect in law?

Miller's precedent is clear and its effect is clear.

I have said what the law is and I given the reasons behind. Whether or not, you think Miller was decided correctly does not matter. Neal, your interpretation of Miller is not the correct no matter how many articles you cite. Miller's precedent is clear and its effect is clear.

A. Text

I begin with the appeal to text. Recall the Second Amendment: "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." No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions. What is special about the Amendment is the inclusion of an opening clause -- a preamble, if you will -- that seems to set out its purpose. No similar clause is part of any other Amendment, [38] though that does not, of course, mean that we do not ascribe purposes to them. It would be impossible to make sense of the Constitution if we did not engage in the ascription of purpose. Indeed, the major debates about The First Amendment arise precisely when one tries to discern a purpose, given that "literalism" is a hopelessly failing approach to interpreting it. We usually do not even recognize punishment of fraud -- a classic speech act -- as a free speech problem because we so sensibly assume that the purpose of the First Amendment could not have been, for example, to protect the circulation of patently deceptive information to potential investors in commercial enterprises. The sharp differences that distinguish those who would limit the reach of the First Amendment to "political" speech from those who would extend it much further, encompassing non-deceptive commercial speech, are all derived from different readings of the purpose that underlies the raw text. [39]

A standard move of those legal analysts who wish to limit the Second Amendment's force is to focus on its "preamble" as setting out a restrictive purpose. Recall Laurence Tribe's assertion that the purpose was to allow the states to keep their militias and to protect them against the possibility that the new national government will use its power to establish a powerful standing army and eliminate the state militias. This purposive reading quickly disposes of any notion that there is an "individual" right to keep and bear arms. The right, if such it be, is only a states's right. The consequence of this reading is obvious: the national government has the power to regulate--to the point of prohibition--private ownership of guns, since that has, by stipulation, nothing to do with preserving state militias. This is, indeed, the position of the ACLU, which reads the Amendment as protection only the right of "maintaining an effective state militia...[T]he individual's right to keep a nd bear arms applies only to the preservation or efficiency of a well-regulated [state] militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected." [40]

This is not a wholly implausible reading, but one might ask why the Framers did not simply say something like "Congress shall have no power to prohibit state-organized and directed militias." Perhaps they in fact meant to do something else. Moreover, we might ask if ordinary readers of the late 18th Century legal prose would have interpreted it as meaning something else. The text at best provides only a starting point for a conversation. In this specific instance, it does not come close to resolving the questions posed by federal regulation of arms. Even if we accept the preamble as significant, we must still try to figure out what might be suggested by guaranteeing to "the people the right to keep and bear arms;" moreover, as we shall see presently, even the preamble presents unexpected difficulties in interpretation.

Notes:
38. Cf., e.g. the patents and copyrights clause, which sets out the power of Congress "[t]o promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I Sec. 8.

39. For examples of this, see F. Schauer, Freedom of Speech: A Philosophical Enquiry (1982); Levinson, First Amendment, Freedom of Speech, Freedom of Expression: Does it Matter What We Call It? 80 Nw. U.L.Rev. 767 (1985)(reviewing M. Redish, Freedom of Expression: A Critical Analysis (1984)).

40. ACLU Policy #47. I am grateful to Joan Mahoney, a member of the national board of the ACLU, for providing me with a text of the ACLU's current policy on gun control.

C. Structure

We have also passed imperceptibly into a form of structural argument, for we see that one aspect of the structure of checks and balances within the purview of 18th century thought was the armed citizen. That is, those who would limit the meaning of the Second Amendment to the constitutional protection of state-controlled militias agree that such protection rests on the perception that militarily competent states were viewed as a potential protection against a tyrannical national government. Indeed, in 1801 several governors threatened to call out state militias if the Federalists in Congress refused to elect Thomas Jefferson president. [70] But this argument assumes that there are only two basic components in the vertical structure of the American polity--the national government and the states. It ignores the implication that might be drawn from the Second, Ninth, and Tenth Amendments; the citizenry itself can be viewed as an important third component of republican governance insofar as it stands ready to defend republican liberty against the depredations of the other two structures, however futile that might appear as a practical matter.

One implication of this republican rationale for the Second Amendment is that it calls into question the ability of a state to disarm its citizenry. That is, the strongest version of the republican argument would hold it to be a "privilege and immunity of United States citizenship"--of membership in a liberty-enhancing political order -- to keep arms that could be taken up against tyranny wherever found, including, obviously, state government. Ironically, the principal citation supporting this argument is to Chief Justice [Roger] Taney's egregious opinion in Dred Scott, [71] where he suggested that an uncontroversial attribute of citizenship, in addition to the right migrate from one state to another, was the right to possess arms. The logic of Taney's argument at the point seems to be that, because it was inconceivable that the Framers could have genuinely imagined blacks having the right to possess arms, it follows that they could not have envisioned them as being citizens, since citizenship entailed the right. Taney's seeming recognition of a right to arms is much relied on by opponents of gun control. [72] Indeed, recall Madison's critique, in Federalist Numbers Ten and Fourteen, of republicanism's traditional emphasis on the desirability of small states as preservers of republican liberty. He transformed this debate by arguing that the states would be less likely to preserve liberty because they could so easily fall under the sway of a local dominant faction, whereas an extended republic would guard against this danger. Anyone who accepts the Madisonian argument could scarcely be happy enhancing the power of the states over their own citizens; indeed, this has been one of the great themes of American constitutional history, as the nationalism of the Bill of Rights has been deemed necessary in order to protect popular liberty against state depredation.

Notes:

70. See D. Malone, 4 Jefferson and His Times: Jefferson the President: First Term, 1801-1805, AT 7-11 (1970)(republican leaders ready to use state militias to resist should lame duck Congress attempt to violate clear dictates of Article II by designating someone other than Thomas Jefferson as President in 1801).

71. Scott v. Sanford 60 U.S. (19 How.) 393,417 (1857).

72. See, e.g., Featherstone, Gardiner &Dowlut, The Second Amendment to the United States Constitution Guarantees and Individual Right to Keep and Bear Arms, supra note 27, at 100.

D. Doctrine

Inevitably one must at least mention, even though there is not space to discuss fully, the so-called incorporation controversy regarding the application of the Bill of Rights to the states through the Fourteenth Amendment. It should be no surprise that the opponents of gun control appear to take a "full incorporationist" view of that Amendment. [73] They view the privileges and immunities clause, which was eviscerated in the Slaughterhouse Cases, [74] as designed to require the states to honor the rights that had been held, by Justice Marshall in Barron v. Baltimore in 1833, [75] to restrict only the national government. In 1875 the Court stated, in United States v. Cruickshank, [76] that the Second Amendment, insofar as it grants any right at all, "means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government..." Lest there be any remaining doubt on this point, the Court specifically cited the Cruickshank language eleven years later in Presser v. Illinois, [77] in rejecting the claim that the Second Amendment served to invalidate an Illinois statute that prohibited "any body of men whatever, other than the regular organized volunteer militia of this State, and the troops of the United States....to drill or parade with arms in any city, or town, of this State, without the license of the Governor thereof..." [78]

The first "incorporation decision," Chicago, B &Q.R.Co. v. Chicago, [79] was not delivered until eleven years after Presser; one therefore cannot know if the judges in Cruickshank and Presser were willing to concede that any of the amendments comprising the Bill of Rights were anything more than limitations on congressional or other national power. The obvious question, given the modern legal reality of the incorporation of almost all of the right s protected by the First, Fourth, Fifth, Sixth, and Eighth Amendments, is what exactly justifies treating the Second Amendment as the great exception. Why, that is, could Cruickshank and Presser be regarded as binding precedent any more than any of the other "pre-incorporation" decisions refusing to apply given aspects of the BIll of Rights against the states?

If one agrees with Professor Tribe that the Amendment is simply a federalist protection of state rights, then presumably there is nothing to incorporate. [80] If, however, one accepts the Amendment as a serious substantive limitation on the ability of the national government to regulate the private possession of arms based on either the "individualist" or the "new-republican" theories sketched above, then why not follow the "incorporationist" logic applied to other amendments and limit the states as well in their powers to regulate (and especially to prohibit) such possession? The Supreme Court has almost shamelessly refused to discuss the issue, [81] but that need not stop the rest of us.

Returning, though, to the question of Congress' power to regulate the keeping and bearing of arms, one notes that there is, basically, only one modern case that discusses the issue, United States v. Miller, [82] decided in 1939 . Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the National Firearms Act of 1934. Among other things, Miller and a compatriot had not registered the firearm, as required by the Act. The court below ha d dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment.

The Supreme Court reversed unanimously, with the arch- conservative Justice McReynolds writing the opinion. [83] Interestingly enough, he emphasized that there was no evidence showing that a sawed- off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia." [84] And "[c]ertainly 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." [85] Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use. [86]

Justice McReynolds went on to describe the purpose of the Second Amendment as "assur[ing] the constitution and render[ing] possible the effectiveness of [the militia]. [87] He contrasted the Militia with troops of a standing army, which the Constitution indeed forbade the states to keep without the explicit consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion." [88] McReynolds noted further that "the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators [all] [s]how plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." [89]

It is difficult to read Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, MIller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course, assault weapons. Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings.

Notes:

73. See, e.g..., Halbrook, The Fourteenth Amendment and the Right to Keep and Bear Arms: The Intent of the Framers, in The Right to Keep and Bear Arms, supra note 27, at 79. Not the least of the ironies observed in the debate about the Second Amendment is that NRA conservatives like Senator Hatch could scarcely have been happy with the wholesale attack leveled by former Attorney General Meese on the incorporation doctrine, for here is one area where some "conservatives" may in fact b e more zealous adherents of that doctrine than are most liberals, who, at least where the Second Amendment is concerned, have a considerably more selective view of incorporation.

74. 83 U.S. 36 (1873).

75. 32 U.S. (7 Pet.)243 (1833).

76. 92 U.S. 542, 553 (1875).

77. 116 U.S. 252, 267 (1886). For a fascinating discussion of Presser, see Larue, supra note 13, at 386-90.

78. 116 U.S. at 253. There is good reason to believe that this statute, passed by the Illinois legislature in 1879, was part of an effort to control (and indeed, suppress) widespread labor unrest linked to the economic troubles of the time. For the background of the Illinois statute, see P. Avrich, The Haymarket Tragedy 45 (1984): "As early as 1875, a small group of Chicago socialists, most of them German immigrants, had formed an armed club to protect the workers against police and military assaults, as well as against physical intimidation at the polls. In the eyes of its supporters...the need for such a group was amply demonstrated by the behavior of the police and [state- controlled] militia during the Great Strike of 1877, a national protest by labor triggered by a ten percent cut in wages by the Baltimore and Ohio Railroad, which included the breaking up of workers' meetings, the arrest of socialist leaders, [and] the use of club, pistol and bayonet against strikers and their supporters...Workers...were resolved never again to be shot and beaten without resistance. Nor would the stand idly by while their meeting places were invaded or their wives and children assaulted. The were determined , as Albert Parsons [a leader of the anarchist movement in Chicago] expressed it, to defend both 'their persons and their rights.'"

79. 166 U.S. 226 (1897) (protecting rights of property owners by requiring compensation for takings of property).

80. My colleague Douglas Laycock has reminded me that a similar argument was made by some conservatives in regard to the establishment clause of the First Amendment. Thus, Justice Brennan noted that "[i]t has been suggested, with some support in history, that absorption of the First Amendment's ban against congressional legislation 'respecting an establishment of religion' is conceptually impossible because the Framers meant the Establishment Clause also to foreclose any attempt by Congress to disestablish the official state churches." Abington School District v. Schempp, 374 U.S. 203, 254 (1963) (Brennan, J., concurring) (emphasis added). According to this reading, it would be illogical to apply the establishment clause against the states "because that clause is not one of the provisions of the Bill of Rights which in terms protects a 'freedom' of the individual," id. at 256, inasmuch as it is only a federalist protection of states against a national establishment (or disestablishment). "The fallacy in this contention," responds Brennan, "is that it underestimates the role of the Establishment Clause as a co-guarantor, with the Free Exercise Clause, of religious liberty." Id. Whatever the sometimes bitter debates about the precise meaning of "establishment," it is surely the case that Justice Brennan, even as he almost cheerfully concedes that at one point in our history the "states-right" reading of the establishment clause would have been thoroughly plausible, expresses what has become the generally accepted view as to the establishment clause being some kind of limitation on the state as well as on the national government. One may wonder whether the interpretive history of the establishment clause might have any lessons for the interpretation of the Second Amendment.

81. It refused, for example, to review the most important modern gun control case, Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983), where the Seventh Circuit Court of Appeal s upheld a local ordinance in Morton Grove, Illinois, prohibiting the possession of handguns within its borders.

82. 307 U.S. 174 (1939.

83. Justice Douglas, however, did not participate in the case.

84. Miller, 307 U.S. at 178.

85. Id. at 178 (citation omitted).

86. Lund notes that "commentators have since demonstrated that sawed- off or short barrelled shotguns are commonly used as military weapons." Lund, infra note 96, at 109.

87. 307 U.S. at 178.

88. Id. at 179.

89. Id.

E. Prudentialism

WE have looked at four of Bobbitt's categories -- text, history, structure, and case law doctrine -- and have seen, at the very least, that the arguments on behalf of a "strong" Second Amendment are stronger than many of us might wish were the case. This, then, brings us up to the fifth category, prudentialism, or an attentiveness to the practical consequences, which is clearly of great importance in any debate about gun control. The standard argument in favor of strict control and, ultimately, prohibition of private ownership focuses on the extensive social costs of widespread distribution of firearms. Consider, for example, a recent speech given by former Justice Lewis Powell to the American Bar Association.He noted that over 40, 000 murders were committed in the United States in 1986 and 1987, and that fully sixty percent of them were committed with firearms. [90] Justice Powell indicated that "[w]ith respect to handguns," in contrast "to sporting rifles and shotguns [,] it is not easy to understand why the Second Amendment, or the notation of liberty, should be viewed as creating a right to own and carry a weapon that contributes so directly to the shocking number of murders in our society." [91]

It is hard to disagree with Justice Powell; it appears almost crazy to protect as a constitutional right something that so clearly results in extraordinary social cost with little, if any, compensating social advantage. Indeed, since Justice Powell's talk, the subject of assault rifles has become a staple of national discussion, and the opponents of regulation of such weapons have deservedly drawn the censure of even conservative leaders like William Bennett. It is almost impossible to imagine that the judiciary would strike down a determination by Congress that the possession of assault weapons should be denied to private citizens.

Even if one accepts the historical plausibility of the arguments advanced above, the overriding temptation is to say that times and circumstances have changed and that there is simply no reason to continue enforcing an outmoded, and indeed, dangerous, understanding of private rights against public order. This criticism is clearest in regard to the so-called individualist argument, for one can argue that the rise of a professional police force to enforce the law has made irrelevant, and perhaps even counter-productive, the continuation of a strong notion of self-help as the remedy for crime. [92]

I am not unsympathetic to such arguments. It is no purpose of this essay to solicit membership for the National Rifle Association or to express any sympathy for what even Don Kates, a strong critic of the conventional dismissal of the Second Amendment, describes as "the gun lobby's obnoxious habit of assailing all forms of regulation on 2nd Amendment grounds." [93] And yet... Circumstances may well have changed in regard to individual defense, although we ignore at our political peril the good faith belief of many Americans that they cannot rely on the police for protection against a variety of criminals. Still, l et us assume that the individualist reading of the Amendment has been vitiated by changing circumstances. Are we quite so confident that circumstances are equally different in regard to the republican rationale outlined earlier?

One would, of course, like to believe that the state, whether at the local or national level, presents no threat to important political values, including liberty. But our propensity to believe that this is the case may be little more than a sign of how truly different we are from our radical forbearers. I do not want to argue that the state is necessarily tyrannical; I am not an anarchist. But it seems foolhardy to assume that the armed state will necessarily be benevolent. The American political tradition is, for good or ill, based in large measure on a healthy mistrust of the state. The development of widespread suffrage and greater majoritarianism in our polity is itself no sure protection, at least within republican theory. The republican theory is predicated on the stark contrast between mere democracy, where people are motivated by selfish personal interest, and a republic, where civic virtue, both in common citizen and leadership, tames selfishness on behalf of the common good. In any event, it is hard for me to see how one can argue that circumstances have so changed us as to make mass disarmament constitutionally unproblematic. [94]

Indeed, only in recent months have we seen the brutal suppression of the Chinese student demonstrations in Tiananmen Square. It should not surprise us that some NRA sympathizers have presented that situation as an abject lesson to those who unthinkingly support the prohibition of private gun ownership. "[I]f all Chinese citizens kept arms, their rulers would hardly have dared to massacre the demonstrators... The private keeping of hand-held personal firearms is within the constitutional design for a counter to government run amok... As the Tianamen Square tragedy showed so graphically, AK 47's fall into that category of weapons, and that is why they are protected by the Second Amendment." [95] It is simply silly to respond that small arms are irrelevant against nuclear armed states; Witness contemporary Northern Ireland and the territories occupied by Israel, where the sophisticated weaponry of Great Britain and Israel have proved almost totally beside the point. The fact that these may not be pleasant examples does not affect the principal point, that a state facing a totally disarmed population is in a far better position, for good or ill, to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officials being injured or killed. [96]

Notes:

90. L. Powell, Capital Punishment, Remarks Delivered to the Criminal Justice Section, ABA 10 (Aug 7, 1988).

91. Id. at 11.

92. This point is presumably demonstrated by the increasing public opposition of police officials to private possession of handguns (not to mention assault rifles).

93. D. Kates, Minimalist Interpretation of the Second Amendment 2 (draft Sept. 29, 1986) (unpublished manuscript available from author).

94. See Lund, supra note 96, at 116.

95. Wimmershoff-Caplan, The Founders and the AK-47, Washington Post, July 6, 1989, at A18, col. 4, reprinted as Price of Gun Deaths Small Compared to Price of Liberty, Austin-American Statesman, July 11, 1989, at A11. Ms. Wimmershoff-Caplan is identified as a "lawyer in New York" who is "a member of the National Board of the National Rifle Association." Id. One of the first such arguments in regard to the events in Tianamen Square was made by William A. Black in a letter, Citizens Without Guns, N.Y. Times, June 18, 1989, at D26, col. 6. Though describing himself as "find[ing] no glory in guns [and] a profound anti-hunter," he nonetheless "stand[s] with those who would protect our right to keep and bear arms" and cited for support the fact that "none [of the Chinese soldiers] feared bullets: the citizens of China were long ago disarmed by the Communists." "Who knows," he asks, "what the leaders and the military and the police of our America will be up to at some point in the future? We need an armed citizenry to protect our liberty." As one might expect, such arguments draw heated responses. See Rudlin, The Founders and the AK-47 (Cont'd) Washington Post, July 20, 1989 at A22, col 3. Jonathan Rudlin accused Ms. Wimmershoff-Caplan of engaging in Swiftian satire, as no one could "take such a brilliant burlesque seriously." Neal Knox, however, endorsed her essay in full, adding the Holocaust to the list of examples: "Could the Holocaust have occurred if Europe's Jews had owned thousands of then-modern military Mauser bolt action rifles?" See also, Washington Post, July 12, 1989, at A22, for other letters.

96. See Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L. Rev. 103 (1987) at 115: "The decision to use military force is not determined solely by whether the contemplated benefits can be successfully obtained through the use of available forces, but rather determined by the ratio of those benefits to the expected costs. It follows that any factor increasing the anticipated cost of a military operation makes the conduct of that operation incrementally more unlikely. This explained why a relatively poorly armed nation with a small population recently prevailed in a war against the United States, and it explains why governments bent on the oppression of their people almost always disarm the civilian population before undertaking more drastically oppressive measures." I should note that I wrote (and titled) this article before reading Lund's article, which begins, "The Second Amendment to the United States Constitution h as become the most embarrassing provision of the Bill of Rights." I did hear Lund deliver a talk on the Second Amendment at the University of Texas Law School during the winter of 1987, which may have penetrated my consciousness more than I realized while drafting this article.

Neal, once again you resort to ridiculous arguments and childishness, in trying to call me a tyrant or a supporter of tyranny. The rights of the people are given by G-d, but when society forms a social compact they cede some of their rights to the government so it can fulfill its purposes. This is what Locke says. We have an absolute right to keep and bear arms in nature, but when we formed our social compact the right was as stated in the amendment.

unalienable, adj. Not to be separated, given away, or taken away; inalienable: “All of them... claim unalienable dignity as individuals” (Garrison Keillor).

Sec. 4. TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

Sec. 87. Man being born, as has been proved, with a title to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the law of nature, equally with any other man, or number of men in the world, hath by nature a power, not only to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men; but to judge of, and punish the breaches of that law in others, as he is persuaded the offence deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it. But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there, and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together. Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them, and punish offenders, are in civil society one with another: but those who have no such common appeal, I mean on earth, are still in the state of nature, each being, where there is no other, judge for himself, and executioner; which is, as I have before shewed it, the perfect state of nature.

Sec. 88. And thus the common-wealth comes by a power to set down what punishment shall belong to the several transgressions which they think worthy of it, committed amongst the members of that society, (which is the power of making laws) as well as it has the power to punish any injury done unto any of its members, by any one that is not of it, (which is the power of war and peace;) and all this for the preservation of the property of all the members of that society, as far as is possible. But though every man who has entered into civil society, and is become a member of any commonwealth, has thereby quitted his power to punish offences, against the law of nature, in prosecution of his own private judgment, yet with the judgment of offences, which he has given up to the legislative in all cases, where he can appeal to the magistrate, he has given a right to the common-wealth to employ his force, for the execution of the judgments of the common-wealth, whenever he shall be called to it; which indeed are his own judgments, they being made by himself, or his representative. And herein we have the original of the legislative and executive power of civil society, which is to judge by standing laws, how far offences are to be punished, when committed within the common-wealth; and also to determine, by occasional judgments founded on the present circumstances of the fact, how far injuries from without are to be vindicated; and in both these to employ all the force of all the members, when there shall be need.

Sec. 89. Where-ever therefore any number of men are so united into one society, as to quit every one his executive power of the law of nature, and to resign it to the public, there and there only is a political, or civil society. And this is done, where-ever any number of men, in the state of nature, enter into society to make one people, one body politic, under one supreme government; or else when any one joins himself to, and incorporates with any government already made: for hereby he authorizes the society, or which is all one, the legislative thereof, to make laws for him, as the public good of the society shall require; to the execution whereof, his own assistance (as to his own decrees) is due. And this puts men out of a state of nature into that of a common-wealth, by setting up a judge on earth, with authority to determine all the controversies, and redress the injuries that may happen to any member of the commonwealth; which judge is the legislative, or magistrates appointed by it. And where-ever there are any number of men, however associated, that have no such decisive power to appeal to, there they are still in the state of nature.

Sec. 90. Hence it is evident, that absolute monarchy, which by some men is counted the only government in the world, is indeed inconsistent with civil society, and so can be no form of civil-government at all: for the end of civil society, being to avoid, and remedy those inconveniencies of the state of nature, which necessarily follow from every man's being judge in his own case, by setting up a known authority, to which every one of that society may appeal upon any injury received, or controversy that may arise, and which every one of the* society ought to obey; where-ever any persons are, who have not such an authority to appeal to, for the decision of any difference between them, there those persons are still in the state of nature; and so is every absolute prince, in respect of those who are under his dominion.

(* The public power of all society is above every soul contained in the same society; and the principal use of that power is, to give laws unto all that are under it, which laws in such cases we must obey, unless there be reason shewed which may necessarily inforce, that the law of reason, or of God, doth enjoin the contrary, Hook. Eccl. Pol. l. i. sect. 16.)

Sec. 119. Every man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any earthly power, but only his own consent; it is to be considered, what shall be understood to be a sufficient declaration of a man's consent, to make him subject to the laws of any government. There is a common distinction of an express and a tacit consent, which will concern our present case. No body doubts but an express consent, of any man entering into any society, makes him a perfect member of that society, a subject of that government. The difficulty is, what ought to be looked upon as a tacit consent, and how far it binds, i.e. how far any one shall be looked on to have consented, and thereby submitted to any government, where he has made no expressions of it at all. And to this I say, that every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway; and in effect, it reaches as far as the very being of any one within the territories of that government.

Sec. 120. To understand this the better, it is fit to consider, that every man, when he at first incorporates himself into any commonwealth, he, by his uniting himself thereunto, annexed also, and submits to the community, those possessions, which he has, or shall acquire, that do not already belong to any other government: for it would be a direct contradiction, for any one to enter into society with others for the securing and regulating of property; and yet to suppose his land, whose property is to be regulated by the laws of the society, should be exempt from the jurisdiction of that government, to which he himself, the proprietor of the land, is a subject. By the same act therefore, whereby any one unites his person, which was before free, to any common-wealth, by the same he unites his possessions, which were before free, to it also; and they become, both of them, person and possession, subject to the government and dominion of that common-wealth, as long as it hath a being. VVhoever therefore, from thenceforth, by inheritance, purchase, permission, or otherways, enjoys any part of the land, so annexed to, and under the government of that common-wealth, must take it with the condition it is under; that is, of submitting to the government of the common-wealth, under whose jurisdiction it is, as far forth as any subject of it.

Sec. 121. But since the government has a direct jurisdiction only over the land, and reaches the possessor of it, (before he has actually incorporated himself in the society) only as he dwells upon, and enjoys that; the obligation any one is under, by virtue of such enjoyment, to submit to the government, begins and ends with the enjoyment; so that whenever the owner, who has given nothing but such a tacit consent to the government, will, by donation, sale, or otherwise, quit the said possession, he is at liberty to go and incorporate himself into any other common-wealth; or to agree with others to begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed: whereas he, that has once, by actual agreement, and any express declaration, given his consent to be of any commonwealth, is perpetually and indispensably obliged to be, and remain unalterably a subject to it, and can never be again in the liberty of the state of nature; unless, by any calamity, the government he was under comes to be dissolved; or else by some public act cuts him off from being any longer a member of it.

Sec. 122. But submitting to the laws of any country, living quietly, and enjoying privileges and protection under them, makes not a man a member of that society: this is only a local protection and homage due to and from all those, who, not being in a state of war, come within the territories belonging to any government, to all parts whereof the force of its laws extends. But this no more makes a man a member of that society, a perpetual subject of that common-wealth, than it would make a man a subject to another, in whose family he found it convenient to abide for some time; though, whilst he continued in it, he were obliged to comply with the laws, and submit to the government he found there. And thus we see, that foreigners, by living all their lives under another government, and enjoying the privileges and protection of it, though they are bound, even in conscience, to submit to its administration, as far forth as any denison; yet do not thereby come to be subjects or members of that commonwealth. Nothing can make any man so, but his actually entering into it by positive engagement, and express promise and compact. This is that, which I think, concerning the beginning of political societies, and that consent which makes any one a member of any common-wealth.
Sec. 198. In all lawful governments, the designation of the persons, who are to bear rule, is as natural and necessary a part as the form of the government itself, and is that which had its establishment originally from the people; the anarchy being much alike, to have no form of government at all, or to agree that it shall be monarchical, but to appoint no way to design the person that shall have the power, and be the monarch. Hence all commonwealths, with the form of government established, have rules also of appointing those who are to have any share in the public authority, and settled methods of conveying the right to them. Whoever gets into the exercise of any part of the power, by other ways than what the laws of the community have prescribed, hath no right to be obeyed, though the form of the commonwealth be still preserved; since he is not the person the laws have appointed, and consequently not the person the people have consented to. Nor can such an usurper, or any deriving from him, ever have a title, till the people are both at liberty to consent, and have actually consented to allow, and confirm in him the power he hath till then usurped. From: The Second Treatise of Civil Government by John Locke

By the way, I just answered the question that was presented to me. If you want to dispute what the various assault weapons ban defines as assault weapons, you have many forums to do so, but I will not debate you anymore on those points.

The NG is not the militia. I am surprised that you would make that mistake. The NG is authorized under Congress' power to raise armies, not in the discipline and provision of the militia.

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.

Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

Sec. 3. Provided always, and be it further enacted, That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.

Sec. 4. And be it further enacted, That the militia employed in the service of the United States, shall receive the same pay and allowances, as the troops of the United States:

An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of 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 time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the 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 power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; 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 from arming the militia as is herein required, shall be of bores sufficient for 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.

III. And be it further enacted, That within one year after the passing of the 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 of the Adjutant-General's office in the state; and when in the field, or in serviced in the state, such division, brigade, and regiment shall, respectively, take rank according to their numbers, reckoning the first and lowest number highest in rank. That if the same be convenient, each brigade shall consist of four regiments; each regiment or 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 on Major-General, with two Aids-de-camp, with the rank of major; to each brigade, one brigadier-major, with the rank of a major; to each company, one captain, one lieutenant, one ensign, four serjeants, four corporals, one drummer, and one fifer and 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 serjeant-major; one drum- major, and one fife-major.

IV. And be it further enacted, That out of the militia enrolled as is herein directed, there shall be formed for each battalion, as least one company of grenadiers, light infantry or riflemen; and that 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 serjeants, four corporals, six gunners, six bombardiers, 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 of matoss shall 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, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for pistols. That each company of artillery and troop of house shall be formed of volunteers from the brigade, at the 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 raiments, to be furnished at their expense, the colour and fashion to be determined by the Brigadier commanding the brigade to which they belong.

V. 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.

VI. 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 for the Commander in Chief of the State to the several corps; to attend all publick 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 may be required; and to explain the principles of 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 division, 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 be shall make proper abstracts, and by the same annually before the Commander in Chief of the State.

VII. And be it further enacted, That the rules of discipline, approved and established by Congress, in their resolution of the twenty-ninth of March, 1779, shall be the rules of discipline so 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 the Act, or by some other unavoidable circumstances. It shall be the duty of the Commanding Officer as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline.

VIII. 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 lots, to be drawn by them before the Commanding officers of the brigade, regiment, battalion, company or detachment.

IX. And be it further enacted That if any person whether officer or solder, 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 an provided for at the publick expense.

X. And be it further enacted, That it shall be the duty of the brigade inspector, to attend the regimental and battalion meeting 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 maneuvres 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, accoutrement, and ammunition, of the several corps, and every other thing which, in his judgment, may relate to their government and general advancement of good order and military disciple; an adjutant general shall make a return of all 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 regulation of the militia. From:
Militia Act of 1792 (As Revised 1795)

(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.

As for the Civil War. Congress authorized an army as opposed to calling forth the militia. Of course it isn't surprising that those who participated in the militia would subsequently enlist in the federal army. But there is a distinction here.

In both North and South, conscription was wildly unpopular, partly because it represented an unprecedented extension of government power into the lives of individuals, but also because of the inequitable way in which it was administered. For example, initially the Confederate Congress permitted a conscript to hire someone to serve in his place. The practice was abolished when the price of a substitute soared beyond $5,000; in the meantime, however, hiring substitutes convinced many ordinary Southerners that the Confederacy's struggle was "a rich man's war and a poor man's fight." Even more upsetting was the so-called "Twenty Negro Law" which exempted one white man for every twenty slaves. This meant that the sons of wealthy plantation owners could be exempted, and even if few men actually took advantage of the law, it contributed to the sense of conscription's unfairness. In the North, the conscription act also permitted the hiring of substitutes; moreover, any man who paid a $300 commutation fee could receive exemption from any given draft call. Ironically the commutation fee, designed to keep the cost of hiring a substitute from soaring out of reach, was intended to help the average man. Instead it only fueled a sense that the draft law was rigged in favor of the wealthy.

In the North, well-to-do communities also frequently raised bounty funds to encourage volunteering, so that their own citizens could elude the draft. Under this system, a man willing to enlist received a cash payment totaling hundreds of dollars. As the war went on and volunteers became harder to find, such bounties increased prodigiously. They soon generated a phenomenon called "bounty-jumping" whereby men went from place to place, enlisted, took their bounties, and then absconded at the first opportunity. One bounty jumper claimed to have done this thirty-two times.

The indirect way in which Civil War conscription operated makes it difficult to assess its effectiveness. It almost certainly encouraged enlistments and, particularly in the South, kept veteran soldiers in the ranks; one estimate credits the system with augmenting Union troop levels by 750,000. But the number of men actually drafted was surprisingly small. In the North, barely 46,000 conscripts actually served in the armies. Another 116,000 men hired substitutes, while 87,000 others paid the $300 commutation fee. Between conscripts and substitutes, the Union draft furnished only 6 percent of the North's military manpower. The Confederacy did little better. The available evidence, while incomplete, suggests that roughly 82,000 Southerners entered the army through conscription--about 11 percent of total enlistments.

The political costs of conscription, however, were dramatic. Many Southerners eluded the draft and fought off the enrollment agents who came to conscript them. In some states, especially Georgia and North Carolina, governors who opposed the draft used loopholes in the conscription acts to exempt as many of their citizens as possible. In the North, a number of provost officers lost their lives while attempting to enforce the draft. The worst violence occurred in New York City in July 1863, when angry mobs attacked draft offices, roughed up well-dressed passersby ("There goes a $300 man"), and slaughtered dozens of free blacks, whom they blamed for the war and hence for conscription. All in all, at least 105 people died in the New York City Draft Riot, making it the worst such incident in American history. From: THE CIVIL WAR, 1863:MOVING DEMOCRACIES TOWARD TOTAL WAR

Civil War (1861–1865)

Total servicemembers (Union) 2,213,363
Battle deaths (Union) 140,414
Other deaths in service (nontheater) (Union) 224,097
Nonmortal woundings (Union) 281,881

Total servicemembers (Conf.) 1,050,000
Battle deaths (Conf.) 74,524
Other deaths in service (nontheater) (Conf.) 59,2972
Nonmortal woundings (Conf.) unknown
From: America's Wars: U.S. Casualties and Veterans

After Shay and the Whiskey Rebellion, the militia as a functioning institution waned. The experience in the War of 1812 signaled the end of the militia as the dominant force for defense.

American Revolution (1775–1783)

Total servicemembers 217,000
Battle deaths 4,435
Nonmortal woundings 6,188

War of 1812 (1812–1815)

Total servicemembers 286,730
Battle deaths 2,260
Nonmortal woundings 4,505

Mexican War (1846–1848)

Total servicemembers 78,718
Battle deaths 1,733
Other deaths in service (nontheater) 11,550
Nonmortal woundings 4,152

Spanish-American War (1898–1902)

Total servicemembers 306,760
Battle deaths 385
Other deaths in service (nontheater) 2,061
Nonmortal woundings 1,662

Since 1933, federal law has provided that persons enlisting in a State National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army.

First, I am impressed that you went to such a length to determine what 18th century definition of "well-regulated." This must be an issue of singular importance to you. But I am sorry to say that your opinion and the opinion of a journalist, who is on the board of several dictionaries does not have weight on the issue of law.

By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." PUBLIUS From: The Federalist No. 29 - Concerning the Militia by Alexander Hamilton (a.k.a. "PUBLIUS")