Thursday, January 7, 2010

Is there a Constitutional right to form Militias?UPDATED

A comment was made about the Constitutional right to form Militias , and that got me wondering , so i took a look , the word Militia appears in the US Constitution in 4 separate sections , In Art 1 sec 8 , under the powers of Congress: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
As you can see , this is the power of Congress to write the rules , not the peoples, those rules are found in US CODE.

The next mention of Militia is in Art2 sec 2: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
This declared the President as the Commander in chief.
Of course the best known mention of Militia comes in this next section the 2nd 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
All this is telling me is that the Militia is seen as necessary and that the people are the militia, the only right here is that of the people to keep and bear arms and that the government cannot infringe on that right. It does not give the people the right to form a militia outside of the constitutional powers of the congress.
The last mention of Militia is in the 5th Amendment :No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Now i can be wrong here , but this tells me that a member of a militia can be called to answer (tried) for a capital crime without indictment , maybe because they fall under a different justice system? and there is a different set of rules under that system?
Now I'm willing to bet , for states that joined the Union after the ratification of the Constitution that their respective State Constitution's , will reflect what then the US Constitution and then US Code stated and I'm also willing to bet , that the congressional powers as far as Militias is delegated to the state Govornors and respective State Legislatures.
I have not looked into the nuances of US code , or the differing state Constitutions so there of course may be something there, but the answer i come up with is there is a Constitutional right to form militias , the right of the government to do so is plainly stated , but i see no provision that gives that right to the people, now dependant of different states statues and laws , if that right is delegated down further to the people to form their own remains to be seen. what does anyone else think?
After some discussion on this subject it was pointed out to me that i was very narrow sighted in my perception and i whole heartedly agree that i have been , i was looking at this subject , from a narrow view of the law and what is said in the US Constitution, What i failed to take into account, was Natural law , or natural right, something we all have and have never given up. and in taking that into consideration and a hefty oh duuuuh!!!!! moment i saw the supporting in the US Constitution for the subject , it was right in front of me and i never connected the two, it was the 9TH Amendment.supported by the 10th.
What have i learned? don't be so set in your ways that you fail`to look at other views on subject , and i have also learned crow tastes better with Tabasco.... please pass the Tabasco.

1 comment:

Anonymous said...

Well i guess the government can sue us after we other throw them,...