Constitutional Conundrum?

Spoken like a true statist.

I had a long response to the last diatribe which Fisherman directed at me, but i must have screwed it up and failed to post it, because i no longer see it.

In it, i pointed out that Fisherman appears not to know much about military history. His response about the Russian army in the Russo-Turkish War of 1853 bears that out. After Louis Bonaparte, the soi-disant Napoleon III had convinced the Turks to undertake a war for which they had not previously previously shown much enthusiasm, French and English troops were sent to Scutari. (Napoleon III had convinced Aberdeen's government to join him in propping up the dubious Turks.) It was at Scutari that enteric diseases first took hold in the French and English armies--they were already prevalent in Turkish armies in the field. From Scutari, the Allies embarked and landed their troops at Varna, to protect the Principalities (Wallachia and Transylvania, roughly modern Romania). There their ranks were decimated (or worse) by enteric diseases. This despite the excellent work of Dr. John Snow a generation earlier in London when he had shown contaminated water due to poor sanitation to be the vector for enteric disease, in that case, cholera. The Russians in attempting to advance on the Principalities were at the end of an impossibly long logistical supply line in terrible conditions, and the Turks handily dealt with them without reference to the Franco-English army. So the Allies began looking around for something for their troops to do, now that they were no longer needed in the Principalities and were involved in dying rapidly at Varna without hearing a shot fired in anger. The debacle at Sinope in which the Turkish Black Sea fleet was destroyed with great slaughter (the Turks and Russians never offered quarter in battle, and slaughtered the wounded and captives out of hand) provided an operational option to the Allies, and it was decided to land on the Crimean peninsula in order to take Sebastopol so as to destroy the Russian Black Sea fleet which had taken refuge there to avoid the overwhelming superiority of the combined French and English fleets.

After the landing, the English and French fought with great courage at the crossing of the river Alma, suffering horribly, but driving off the Russians. Moving south, they besieged Sebastopol from the south, and suffered heavy casualties again (primarily the English) in the two battles of Balaclava--the first the battle of the Causeway Heights where the 93rd Highlanders held the last tenuous defense against the Russian cavalry, and were immortalized as the "thin red line of heroes; and in which General Scarlett's Heavy Brigade cut their way through Russian cavalry which outnumbered them ten to one, and cut their way back out again. Of course, the most famous incident of that battle was the pointless slaughter of the "Charge of the Light Brigade," a product of mis-communication and the cordial hatred which Lord Lucan and Lord Cardigan bore one another. A much more bloody and important battle followed in the Second Battle of Balaclava, know as the Battle of Inkerman, another "close run affair" in which the English and French barely hung on, and Lord Raglan turned to General Canrobert to observe: "Nous sommes foutus."

But more deadly than any of those sanguinary battles was the butchers bills in the hospitals in the seige lines and at Scutari. And the Franco-Anglo-Turko-Sardinian army suffered just as badly as the Russians. By reference to Fisherman's criterion, both sides were ill-regulated. A few years earlier in the Mexican war, enteric diseases killed far more Americans than the Mexicans did. To the extent that ordinary military sanitary doctrine was insufficient to prevent those deaths in any of those armies--the American, the Mexican, the French, the English, the Turkish, the Sardinian or the Russian--by that criterion, all of those military forces were "ill-regulated." It is a meaningless reference in view of what passed for "sanitary commissions" in those armies in those times.

But "ill-regulated" is the hobby horse of Fisherman; nothing obliges me to ride it. I have made clear that the obvious reference of "well-regulated" in the first clause of the Second Amendment is to the powers granted Congress in Article I, Section 8. It is a reference in context, which does not require byzantine and obscure references to other texts and observations, which is all that Fisherman presents as a basis for claiming otherwise.

As for my other point, that nowhere does not Constitution mandate that members of the unorganized militia (see the Dick Act, which i suspect Fisherman has not yet done) must provide their own arms, he has signally failed to refute that point. The Militia Act of 1792 comes five years after the Constitution was written, and three years after the Second Amendment was ratified. It is based upon the power which the Constitution gives Congress to regulate the militia, so i find it ironically amusing to see it alluded to by someone who has earlier written: . . . has nothing to do with "regulations" issued from a legislative body. It certainly looks to me to be "regulations" issued from a legislative body, and it appears that no one at the time considered it an unconstitutional imposition which required action in the courts. Be that as it may, that single act ignores the long traditional history of arming the militia on the part of governments, both royal and Federal. The "minutemen" were armed with "Brown Bess" muskets when they shot down the red coats returning to Boston from Concord. This was because the American militias had been armed by the royal government, the common practice at that time. Most of these were the 1714 India Land Pattern musket, although the later Short Land Pattern musket had been widely distributed. As the war progressed, and France became our ally, the United States received in excess of 70,000 model 1777 Charleville .69 caliber muskets--at no time did the total of all Americans who had served in or were serving in the Continental line even nearly approach 70,000; the obvious destination of the bulk of these muskets was the militia.

Three years after the Militia Act referred to was passed, the arsenal at Springfield, Massachusetts began to produce the model 1795 Springfield musket. More than 80,000 were produced. At no time before the American Civil War did the United States Army even approach a significant fraction of 80,000 men. In 1845, on the eve of the Mexican War, the Regular Army barely topped 10,000 men. In addition, there were model 1808, 1812, 1814, 1817, 1822, 1835, 1840, 1841, 1842, 1847 and 1855 muskets, all produced in their thousands. If these were a deluge of arms in comparison to the number of active duty regulars in service, to whom were these tens of thousands of muskets destined, if not the militia? So, in fact, although the several states might have required members of the militia to pay for the muskets which were issued to them, and the Federal government might have required the several states to pay for the arms and ordnance issued to them, the fact remains that the Federal government was indirectly arming the militia, which is completely in line with the power granted to the Congress to provide for arming the militia.

At all events, as i have pointed out, nowhere does the Constitution require members of the militia to provide their own arms. If any, or all, of the several states required militiamen to pay for the arms which they issued, having been provided them by the Federal government, it was an extra-constitutional requirement--the Constitution is mute on the subject.

Spoken like a true gun nut.

And you thinking I referenced in any way shape or form the "Russo-Turkish War of 1853" bears out that you do actually have, profound cognitive difficulties.



The only thing you have "made clear" is that you do not possess any critical thinking, debate or persuasive writing skills. My "byzantine and obscure references to other texts and observations" are contemporaneous uses of the word "regulated' in the narrow context of military function.

I know the following is going to completely confuse you so take a pill and come back . . . I'll wait. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ya all good now? Here we go, gonna get bumpy . . .

A "regulation" written by Congress or the state establishing a rule of military discipline is powerless to effect the quality of performance of that discipline. The "regulation" of the militia can't make the militia be, "well regulated."

It's OK, deep breaths . . .

Just for kicks here's my paraphrase of the 2nd Amendment for you to completely discombuzzonflagulate.

Because the people are forever secure in their right to keep and bear arms, states will be assured of their ability to organize well regulated [properly functioning] militias, as necessary for their security.

Here's some more fun stuff . . .

"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson, letter to William Johnson, June 12, 1823 "Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government." -- James Madison "The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests." -- Patrick Henry "And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions." -- Samuel Adams, Debates of the Massachusetts Convention of 1788 "The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press." -- Thomas Jefferson "The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now." -- South Carolina v. United States, 199 U.S. 437, 448 (1905) "The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote they depend on the outcome of no elections." -- West Virginia State Bd. of Ed. v. Barnette 319 U.S. 624, 638 (1943) "History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government." -- Bell v. Hood, 71 F. Supp., 813, 816 (1947) [Yes Joe, I know it's not SCOTUS] The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights. UNITED STATES v. TWIN CITY POWER CO., 350 U.S. 222 (1956) "This course of decision has substituted, in these areas of criminal procedure, the specific guarantees of the various provisions of the Bill of Rights embodied in the first 10 Amendments to the Constitution for the more generalized language contained in the earlier cases construing the Fourteenth Amendment. It was through these provisions of the Bill of Rights that their Framers sought to restrict the exercise of arbitrary authority by the Government in particular situations. Where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." ALBRIGHT v. OLIVER, ___ U.S. ___ (1994) (internal cites and quotation marks removed) "[N]either the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. . . . Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source." DENNIS C. VACCO, ATTORNEY GENERAL OF NEW YORK, et al., PETITIONERS v. TIMOTHY E. QUILL et al. No. 95-1858, (1997)

Did the guys get to keep the guns after they bought them? Did they get to keep them after their militia duty was satisfied?

Let's have some fun with numbers . . .

"The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, . . . " -- The Federalist 46, Madison, January 29, 1788

Let's scrutinize those numbers.

At that time there were about 3 million people in what would soon be the USA.

Standing army = 1% of all persons OR 4% of those "able to bear arms," so, using the upper end of Madison's "standing army" number, 30,000 . . .
30,000 / .04 = 750,000 citizens "able to bear arms," minus the 500,000 citizens "with arms in their hands," means 250,000 will need to borrow a weapon from their neighbor if events required it.

Let's see how Madison's ratio's have held up in the ensuing 220 years.

In present day America there are 300 million or so "total souls;" the present day military force of America stands at about 2.8 million active duty and reserves. The ratio remains spot-on to Madison's formula of a nation's "standing army" carrying capability.

Madison notes two subsets, those capable of bearing arms (1/4 or 25% of the total population) and those with arms in their hands (1/5th or 20% of the total population).

So, by Madison's formula 300,000,000 total souls would render a force of 75,000,000 "able to bear arms" and 60,000,000 "with arms in their hands." (backchecking -300,000,000 * 1% = 3,000,000 standing army; 3,000,000 / .04 = 75,000,000 citizens "able to bear arms.")

The exact number of present day gun owners today is not known. The US Dept. of Justice has estimated that 60 - 75 million Americans own between 250 million and 300 million firearms.

Madison envisioned any "standing army" being outnumbered ("opposed" was the word he used) by armed citizens by a factor of 17 to 1; in present day America that ratio may have widened to as much as 25 to 1 (if upper estimates of the number of gun owners are to be accepted).

We're cool with what Madison wanted!

Excellent!