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Author Topic: Do we need a militia?
DonaldD
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quote:
Originally posted by Seriati:
quote:
Originally posted by DonaldD:
I agree that the situation is not exactly comparable.

It's not really comparable at all. One event is criminal, the other isn't.

Are you really suggesting that being suspected of carrying a weapon,even when not carrying a weapon, is criminal?

Correct me if I misread the article, but these men were not actually carrying anything, right?

Or were you suggesting that the criminal act would have been if they were openly carrying?

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Seriati
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quote:
Originally posted by D.W.:
The only remotely close comparison I recall seeing in the news was two black me outside a polling location. I think they said to prevent anyone from interfering with black voters? One of the two I think was armed with a long gun.

Except, being armed at the polls is a separate violation. Intimidating voters is not okay. Of course, this was a case where the law was ignored in favor of the black men.
quote:
The reason I suspect comparisons don't get closer is if during a protest there was a small group of black men with assault rifles slung in front, pointed down, hand on grip but fingers outside the trigger guard, they may be shot on sight if things were even a little tense.
Well the key is to be peaceful, but if they were not treated with the same deference/respect as the OathKeepers you'd have your case made.
quote:
The aggression that was just mentioned over suspected concealed weapons demonstrates that to me. People are shot because they MIGHT be drawing a weapon.
Huh? The story said they were wrongfully arrested, not that they were shot.
quote:
If that weapon was in their hand and ready?
Then they would have been open carrying, so unless they were brandishing they might have been fine. Better parallel would have been if they were wearing them in hip holsters openly.
quote:
Originally posted by DonaldD:
Are you really suggesting that being suspected of carrying a weapon,even when not carrying a weapon, is criminal?

No.
quote:
Correct me if I misread the article, but these men were not actually carrying anything, right?
That's the way I read it.
quote:
Or were you suggesting that the criminal act would have been if they were openly carrying?
No. I didn't say they did anything criminal. Sounds like a false arrest, the men should have been released immediately upon verification they had no weapons. They shouldn't have been arrested in the first place without probable cause.

What I pointed out though is that there's a difference between open carry and concealed carry as to legality, hence it wasn't a parallel test. There's no potential crime to arrest the OathKeepers for.

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D.W.
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quote:
Except, being armed at the polls is a separate violation.
They were outside the actual polling location. That was made clear in what I read/watched. Sorry for being too vague. If you care enough I'll try and look up the incident.

Just looked this up.

I believe what I wrote is entierly in error now. The story / wiki I found SEEMS to be the incident I remember and there was no rifle involved. (only a billyclub). My appologies for the misinformation. So I guess I have zero to compare the oath keepers to in the black community.


[ August 13, 2015, 02:25 PM: Message edited by: D.W. ]

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D.W.
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quote:
quote:
--------------------------------------------------------------------------------
The aggression that was just mentioned over suspected concealed weapons demonstrates that to me. People are shot because they MIGHT be drawing a weapon.
--------------------------------------------------------------------------------

Huh? The story said they were wrongfully arrested, not that they were shot.

Did anyone else read what I wrote that way? I do ramble and jump topics but I didn't think I was THAT uninteligible.

1: cops got agressive without any proof of a weapon being present only suspicion.

2: Black men have been shot (contextual given the protests) by police who believed they were going for a gun. Not THESE men. But as a statement of "this kinda thing has happened".

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DonaldD
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Well, the oathkeepers could also have been pepper sprayed and arrested for concealed carrying as well - there is nothing stopping them from also concealing other illegal weapons on their persons.

Of course there is a difference between the two - but if the rule in Missouri is that you can carry a concealed weapon with a permit (as you posited earlier) then there would have been no excuse to pepper spray and otherwise assault those men until a) they were confirmed to have been carrying concealed weapons and b) that they did not have a permit.

And if that is the rule in Missouri, then the two situations really are quite comparable.

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Seriati
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quote:
Originally posted by DonaldD:
Well, the oathkeepers could also have been pepper sprayed and arrested for concealed carrying as well - there is nothing stopping them from also concealing other illegal weapons on their persons.

If you can show that there was a similar allegation (including similar in believability) that was ignored, you'd have the start of a case.
quote:
Of course there is a difference between the two - but if the rule in Missouri is that you can carry a concealed weapon with a permit (as you posited earlier) then there would have been no excuse to pepper spray and otherwise assault those men until a) they were confirmed to have been carrying concealed weapons and b) that they did not have a permit.
I don't more about that than you do. My experience with police is that they don't lead with pepper spray and assault, they lead with unreasonable and demeaning demands and then if you don't comply they go over the top aggressive. Do we have any evidence on how the situation escalated, or are you contending it was a sneak attack by the police?
quote:
And if that is the rule in Missouri, then the two situations really are quite comparable.
Investigating a potentially illegal act is in no way comparable to what would be harassment without cause. You have to keep in mind, the UK papers that covered this don't see any difference with gun holders because they think carrying a gun at all should be illegal. But that's not the world we live in.

You're essentially arguing the police discriminate against Marijuana users because they arrest them when they let other people walk around smoking Tobacco. The situations superficial resemble each other but the substance is completely off. And it's not a reasonable criticism to say that the tobacco smokers could've had joints in their pockets.

[ August 13, 2015, 02:43 PM: Message edited by: Seriati ]

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DonaldD
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quote:
You're essentially arguing the police discriminate against Marijuana users because they arrest them when they let other people walk around smoking Tobacco
No... maybe I'm essentially saying that police discriminate against Ferguson non-smoking residents who they are able to claim are marijuana users, while letting smokers walk around unmolested because they are not waving around marijuana plants [Smile]
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Pete at Home
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quote:
Originally posted by NobleHunter:
If they aren't answerable to a duly elected government, they aren't the militia; they're the insurrection.

Please clarify what you mean by "answerable."

They are "answerable" to the government if they shoot someone or otherwise behave in an arguably unlawful manner.

But if you mean that if they don't behave as a government lackey, that they are an insurrection, that seems like a fairly totalitarian point of view. Indeed, the view of the People's Republic of China regarding Tiananmen protesters and Falun Gong.

I hope you meant the former. But if you did, it's kind of a nonstatement.

If open carriers start following around individual protesters, I'd say that's unlawful, intimidating and arguably stalking.

OTOH, here's where the anti-militia sentiment in Ferguson has traction for me:

Can anyone honestly say that law abiding black citizens of Ferguson will reasonably be able to feel comfortable open-carrying guns?

I don't think that's an adequate constitutional argument. But it certainly is an inequity, and inequities do breed violence.

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Seriati
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I think what he's saying Pete, correctly, is that for it to be a militia it has to be in the service of the people. Normally, that means under the supervision and direction of their government, but it certainly could mean directly in service to the people to resist a tyrannical government (though I don't think he acknowledged the latter point).
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Pyrtolin
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http://christopherkeelty.com/whose-right-is-it-anyway/

Makes the point pretty well.

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Pyrtolin
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Militia were supposed to be the US alternative to an army (The Constitution forbids a standing army, which is why we have to reauthorize it every two years instead of just letting it ride as a standard appropriations bill)

The Federal Government is supposed to provide the states with funding and training standards, while each state is responsible for actually implementing training and overall readiness.

Obviously we've pretty much abandoned the model in favor of a de facto standing army, but I still think those provisions should be used to provide all firearm owners with regular, required training on responsible firearms usage and, particularly, the proper use of lethal force, which most people both up completely withotu regular, focused training.

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NobleHunter
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Duly elected is a key point and, as Seriati pointed out, tends to mean in service of the people. I was also pointing out that militia means (or should mean) something specific in the Constitution. It is decidedly not just a bunch of guys who decide to wander around with guns declaiming they're there to protect people's rights.

To a tyrannical government those people would be targets. For a proper militia it should still be answerable to some legitimate authority (basically a convenient locus of the resistance).
quote:
Can anyone honestly say that law abiding black citizens of Ferguson will reasonably be able to feel comfortable open-carrying guns?

I don't think that's an adequate constitutional argument. But it certainly is an inequity, and inequities do breed violence.

Doesn't that imply there's an equal protection problem? To phrase it uncharitably: white people have the right to bear arms; black people have the right to a social media storm after they've been shot because the cops thought they were armed.
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Seriati
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quote:
Originally posted by NobleHunter:
Doesn't that imply there's an equal protection problem? To phrase it uncharitably: white people have the right to bear arms; black people have the right to a social media storm after they've been shot because the cops thought they were armed.

No. There an equal media coverage problem though. As I pointed out there have been black open carry advocates and groups before, we're they treated much differently than these guys?

And far more people are killed by the police, even unarmed people, than the media chooses to report widely on. The statistics on this make it obvious that more of theses "issues" are media selected than representative of any trend of increasing danger. Not saying they aren't important, only that the media makes it look far more like things are getting worse than reality does.

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NobleHunter
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Point.

Though I think it's important to note that social media has more to with "selecting" these controversy than the mainstream media. Things blow up on twitter and then there are news stories about it.

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Pete at Home
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Militia at its most basic is the people, sans government, organizing to keep the peace.

NH's assumption that if the feds can't order the militia to invade another country, that the militia is itself an "insurrection," is not something that I'd expect NH to say. Blayne Bradley, perhaps, but not NH. Is Canadian Maoism contagious?

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Pete at Home
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In any event, the "militia clause" of the 2nd Amendment is a textbook example of precatory language, and any attorney who tried to read binding meaning into it in an ordinary statute or contract, would be liable for incompetence. It's only in constitutional interpretation that people so defecate on their legal training in persuit loopholes around the bill of rights.
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Pete at Home
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"Normally, that means under the supervision and direction of their government,"

What it means NOW is irrelevant to constitutional interpretation. What it meant to the founders had nothing particularly to do with government; a militia reached crises that the government lacked resources or mobility to reach.

But if it actually meant that (far fetched though it be!) it would not follow that a militia that was accountable to a local town government could or should be called up by the feds and sent into another country as an invading force.

Today with Mexican Cartels and other militarized criminals endangering the property and safety of border towns, and the government doing little to stop it, this is precisely the sort of threat that the Militia tradition was designed to address. But that right isn't solely derived from the precatory language of the 2nd Amendment, but rather from the 9th Amendment. Community organizing for Self-defense and communal defense is a traditional right that Americans took for granted in the writing of the Constitution, as evidenced by the precatory militia clause of the 2nd Amendment.

NH, the sole purpose of government is to secure the rights safety and prosperity of the people. It's not government that needs to be served to make an entity legitimate

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Pete at Home
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quote:
Originally posted by NobleHunter:
Duly elected is a key point and, as Seriati pointed out, tends to mean in service of the people. I was also pointing out that militia means (or should mean) something specific in the Constitution. It is decidedly not just a bunch of guys who decide to wander around with guns declaiming they're there to protect people's rights.

To a tyrannical government those people would be targets. For a proper militia it should still be answerable to some legitimate authority (basically a convenient locus of the resistance).
quote:
Can anyone honestly say that law abiding black citizens of Ferguson will reasonably be able to feel comfortable open-carrying guns?

I don't think that's an adequate constitutional argument. But it certainly is an inequity, and inequities do breed violence.

Doesn't that imply there's an equal protection problem? To phrase it uncharitably: white people have the right to bear arms; black people have the right to a social media storm after they've been shot because the cops thought they were armed.
Yes, there's an equal protection problem, but the only LEGITIMATE way to invoke a constitutional remedy is for non-felon peaceful black citizens to march around Ferguson, open-carrying guns.

In America, we don't solve "equal protection" issues by denying everyone of basic constitutional rights. Otherwise the Ferguson police would have just shot an unarmed white guy and everyone would have gone home happy.

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Pyrtolin
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quote:
Yes, there's an equal protection problem, but the only LEGITIMATE way to invoke a constitutional remedy is for non-felon peaceful black citizens to march around Ferguson, open-carrying guns.
It seems to me that if the only "legitimate" process is to go out and get yourself shot, hoping that people will be able to use your death as the focus of a lawsuit, less "legitimate" methods that don't require personal martyrdom should be on the table.

Again- we're still operating in context of a system where a black man trying to get his registration information out of his glovebox or wallet out of he pocket is a shooting offence, where as a white guy that goes for a visible gun in his pants and then another one behind his seat gets the benefit of being detained alive with no shots fired.

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NobleHunter
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quote:
NH's assumption that if the feds can't order the militia to invade another country, that the militia is itself an "insurrection,"
Pete, where in seven hells did you get this? I didn't say a word about the feds.
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Pete at Home
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quote:
Originally posted by NobleHunter:
If they aren't answerable to a duly elected government, they aren't the militia; they're the insurrection.

The antecedent was this:

"
In 1912, when the federal government tried to send militia units into Mexico, the militias balked, noting that the Constitution allowed them to be called out only to repel invasion, suppress insurrection, or enforce the law"

Perhaps you were responding to a different antecedent?

It didnt sound like something you'd say.

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NobleHunter
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I was responding to this line:
quote:
Check out Ferguson now and the armed militia that has shown up to do just that.
I didn't really notice the line about invading Mexico.
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Seriati
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quote:
Originally posted by Pete at Home:
"Normally, that means under the supervision and direction of their government,"

What it means NOW is irrelevant to constitutional interpretation. What it meant to the founders had nothing particularly to do with government; a militia reached crises that the government lacked resources or mobility to reach.

I disagree Pete, you're the one looking at this through the modern parlance. The Founders didn't see a separation between the people and the government. I'm not even sure they could've conceived of a citizens' militia acting against the people's interest or not following the orders of a legitimate government (ie the people's representatives, not the King's appointees).

I'm not trying to make a semantics argument, I just think they saw the militia and the polity as pretty much the same group.

A group like OathKeepers wouldn't have been a "militia" back then either, though THE militia might have been called out to stop them if they were to get hostile.
quote:
But if it actually meant that (far fetched though it be!) it would not follow that a militia that was accountable to a local town government could or should be called up by the feds and sent into another country as an invading force.
Agreed, the founder's were definitely looking at a militia as a defensive organization.
quote:
Today with Mexican Cartels and other militarized criminals endangering the property and safety of border towns, and the government doing little to stop it, this is precisely the sort of threat that the Militia tradition was designed to address. But that right isn't solely derived from the precatory language of the 2nd Amendment, but rather from the 9th Amendment. Community organizing for Self-defense and communal defense is a traditional right that Americans took for granted in the writing of the Constitution, as evidenced by the precatory militia clause of the 2nd Amendment.
Absolutely correct.
quote:
NH, the sole purpose of government is to secure the rights safety and prosperity of the people. It's not government that needs to be served to make an entity legitimate
In modern times you may have a point, but that's only because the US government is more similar to the King's government than the peoples'.
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velcro
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"State" can mean nation, as in the State of Israel. I don't know if that generalization was true when the Constitution was written.

Also, I don't think there was a plan for a permanent standing army, so militias were the only way to go.
quote:
The Congress shall have Power To ...raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years....

ARTICLE I, SECTION 8, CLAUSE 12

But in any case, I think our current system meets all the needs that a well-regulated militia met 230 years ago. The rest is semantics.
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Seriati
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No it's really not. The current system does not meet all the needs that a militia met either now or then, because ultimately the militia is also empowered to protect against a tyrannical government. What part of the military today counts that as part of its mission?
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Fenring
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quote:
Originally posted by Seriati:
quote:
Originally posted by Pete at Home:
"Normally, that means under the supervision and direction of their government,"

What it means NOW is irrelevant to constitutional interpretation. What it meant to the founders had nothing particularly to do with government; a militia reached crises that the government lacked resources or mobility to reach.

I disagree Pete, you're the one looking at this through the modern parlance. The Founders didn't see a separation between the people and the government. I'm not even sure they could've conceived of a citizens' militia acting against the people's interest or not following the orders of a legitimate government (ie the people's representatives, not the King's appointees).

I'm not trying to make a semantics argument, I just think they saw the militia and the polity as pretty much the same group.

A group like OathKeepers wouldn't have been a "militia" back then either, though THE militia might have been called out to stop them if they were to get hostile.

This may be true, but only as a special case in a spectrum. If you think of the government as representing the will of the people on a scale from 0-100 (with 100 being '100% so'), then in the special case of the government getting a 100 score the militia and the polity would be the same group. As the government tends towards scores veering towards 0 is becomes less and less true that the militia and the polity are on the same side. The founders would surely have known this, and they no doubt assumed the militia would also remain relatively at a state or local level and that therefore any trends on a federal level couldn't undermine the loyalty to the people of all or even most militias across the board. I suspect if you asked the founders why there should be no federal standing army they would have said it's precisely because that's the way to avoid the federal government becoming the king's organization. On this basis we might suggest that in a case where government had a low score on this scale the militia and the polity would not at all be the same group, and that was in fact the design intent.

In a time when it was assumed the government and the people were roughly in line (such as at the founding) a group like the Oathkeepers wouldn't have been a normal militia group. However if you change the circumstances and reduce the government's score to a low number, but keep the Oathkeepers the same, they would actually be exactly what a militia group is supposed to be: anti-government in a time of bad government.

Of course this line of argument opens up the possibility of a whacko organization claiming that the government no longer represents the people, and so this point leaves us with a bit of a question mark. In the case of militia groups being very few in number and not mainstream, we don't get a sense of 'general consensus' due to too few data points. This makes it especially difficult to tell if a given militia group's views would have been outliers or mainstream thought had militia culture been more prevalent.

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Seriati
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quote:
Originally posted by Fenring:
This may be true, but only as a special case in a spectrum. If you think of the government as representing the will of the people on a scale from 0-100 (with 100 being '100% so'), then in the special case of the government getting a 100 score the militia and the polity would be the same group. As the government tends towards scores veering towards 0 is becomes less and less true that the militia and the polity are on the same side. The founders would surely have known this,...

I think it's safe to say that by choosing a representative form of government they understood that there would not be a perfect alignment of interest between every member of the polity and any specific government policy. Though whether you agree with the government on every issue is not the correct issue, the correct issue would be whether you respect the government as legitimate. I think the Founder's were aware that a government might decide against them as an individual without being tyrannical, it's when the government acts against the people as a whole that its pushing that line.
quote:
In a time when it was assumed the government and the people were roughly in line (such as at the founding) a group like the Oathkeepers wouldn't have been a normal militia group. However if you change the circumstances and reduce the government's score to a low number, but keep the Oathkeepers the same, they would actually be exactly what a militia group is supposed to be: anti-government in a time of bad government.
Except you're still missing the key element of the militia, it needs to be representative of the polity. OathKeepers as a fringe group does not meet that standard, if it were to become a mainstream philosophy then yes it could be a militia.
quote:
Of course this line of argument opens up the possibility of a whacko organization claiming that the government no longer represents the people, and so this point leaves us with a bit of a question mark.
It really doesn't though, a group of "whacko's" can't be the militia unless the whole state is whacko.
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velcro
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quote:
ultimately the militia is also empowered to protect against a tyrannical government
Given our current situation of an effectively standing army (despite the Constitution leaning against that), do you honestly think we could have local militia that would protect against a tyrannical government?

I'm not asking if we should try, or if we should change the system so a militia has a chance to protect against a tyrannical government. I'm asking if you really think it would work, as opposed to a thought-experiment.

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NobleHunter
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Wasn't the point of the militias in the Constitution to deny the Feds a reason for a standing army? Or at least one big enough to impose its tyrannical will on the States?

I'd be kinda surprised if anyone thought state militias could beat a proper standing army in the field (I might be over generalizing based on certain anecdotes regarding the performance of militias). Iraq and Afghanistan prove militias can't beat a professional army by shooting at it. Yet you never hear 2nd Amendment types arguing for the right to bear IEDs...
quote:
What part of the military today counts that as part of its mission?
Don't all branches swear an oath to uphold the Constitution? If so, the answer would be all of them.
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Pyrtolin
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quote:
Wasn't the point of the militias in the Constitution to deny the Feds a reason for a standing army? Or at least one big enough to impose its tyrannical will on the States?

I'd be kinda surprised if anyone thought state militias could beat a proper standing army in the field (I might be over generalizing based on certain anecdotes regarding the performance of militias).

In the era that the Constitution was written, that effectively has just happened in the US. Which is why they experiment of using them in lieu of any army was injected. (And early federal laws were passed requiring all people able to join militias to purchase and maintain the necessary equipment unless they could demonstrate that they were smiths, drivers, or otherwise occupied in ways that were more valuable to a defensive effort than being able to pick up a gun when needed and march off to the front lines) We figured out pretty quickly that this was not a sustainable model and have been working around it since, at least, 1812, when the need for a more formal military to defend ourselves was thrown into pretty sharp relief.
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KidTokyo
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It makes no sense to speak of "The Founders" as a single entity with a consensus view. The constitution was a negotiated compromise between authorities with hugely divergent interests and political views -- which, incidentally, the constitution did not resolve (though it did ameliorate somewhat).

If you look at state and federal court cases involving constitutional interpretation in the decades following ratification, you'll find, if anything, a much greater diversity of opinion on what the Constitution actually meant than you do now -- especially remarkable given that many who were involved in its creation lived long after.

If you want to look at the question of how the militia was used in practice -- it was primarily used to suppress insurrections, capture runaway slaves, and kill natives.

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Wayward Son
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quote:
It does make you wonder if the police would be as tolerant if the protesters were similarly packing.
Looks like the Oath Keepers are planning to do their own little experiment. They plan to return to Ferguson by the end of the month and arm 50 blacks with AR-15 rifles.

quote:
The gun-loving Oath Keepers plan to arm 50 black demonstrators with AR-15 rifles in Ferguson, Missouri, and basically dare police to shoot them.

The leader of the group’s local chapter told Red Dirt Report that the event would likely be held before the end of this month to protest an order last week by law enforcement officers to Oath Keepers to put away their rifles while in city limits.
“Every person we talked to said if they carried they’d be shot by police,” said Sam Andrews, head of the Oath Keepers chapter in St. Louis County. “That’s the reason we’re going to hold this event, and it will be a legal demonstration. I’m sick and tired of law enforcement who doesn’t think they have to abide by the law. They’re narcissistic and that guy (the county police chief) discredited my men.”

He said other Oath Keepers members would surround the black demonstrators as protection.

So they pretty much proved that everyone expects the police to open fire on a group of armed black men. Certainly anyone who's liable to get shot believes it.

And, we hope, they will prove that black men can safely carry weapons in public--as long as they are surrounded by white men who are showing it's OK. [Roll Eyes]

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D.W.
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Very shrewd of the O.K.
While as soon as they left things would return to business as usual, as Wayward suggests, it is an opportunity for the O.K. to practice what they preach.

While the cynic in me sees it as spotlight hogging they may very well drive the message home that shooting a black man who scares you because they MIGHT have a gun is just not permissible under the law. It's not even if you are SURE they have one...

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Mynnion
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I would say that a real test would be to arm the black men and not inform the local authorities. I bet they would get a different reception.
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Fenring
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quote:
Originally posted by Mynnion:
I would say that a real test would be to arm the black men and not inform the local authorities. I bet they would get a different reception.

I think the objective here is to raise awareness, not to purposely martyr people. The latter would be entirely self-serving and sadistic.
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