Question for the UK folks...

[Assessor]

Not wishing to go on a tangent but I am intrigued. Is there or is there not a connection between this 'aversion to a Standing Army' and the famous wording 'A well regulated militia being necessary to the security of a free State, etc, etc.'?

 

I apologise in advance if my question looks like complete rubbish, I'm not very familiar with early US history.

 

I'm sure there are others who are better placed, but I can't imagine that those members of the early US governments who had any sort of legal training were not acquainted with both the Bill of Rights and the context of its existence.

[Assessor]

The Indian Army, created in 1860 or thereabouts was never entirely Indian. The artillery was almost all British apart from a handful of mountain batteries, and one third of the infantry was also British as was the regular cavalry.

 

Wasn't this to ensure that there were troops of unquestionable loyalty available should the "bally natives get uppish"? Same as within brigades the Indian troops were divided in batallions along racial / religious lines (e.g. one each Hindu and Moslem Bn, plus a British)? To ensure that there wasn't enough critical mass to start another major rebellion.

 

That, and having Indian units having small arms one generation behind British units, up until WW1?

[RETAC21]

Why? This year, the Army Physical Training Corps became the Royal Army Physical Training Corps. Wait until their centenaries, and see what happens.

 

 

By then, it would be amalgamated with the Catering Corps and the Intelligence Corps in the Guards brigade, in foresight...

[FirstOfFoot]

Where will the colour lie up?

 

Did not your lot start with the French?

 

Almost; they were raised under a Royal Warrant - they just deployed in support of the French. And stayed loyal during the Revolution, unlike a lot of others

 

They almost started with the Swedes - a lot of the troops had been in Swedish service, including the first Colonel of the Regiment.

[WRW]

Almost; they were raised under a Royal Warrant - they just deployed in support of the French. And stayed loyal during the Revolution, unlike a lot of others

 

They almost started with the Swedes - a lot of the troops had been in Swedish service, including the first Colonel of the Regiment.

 

I think some Irish establishment rgt also went over the water with James

[Cromwell]

Due to the declining numbers I now refer to it as The British Gendarmerie and I think the term is catching on. Certainly the Royal Navy is looking more and more like a Coast Guard.

[rmgill]

Not wishing to go on a tangent but I am intrigued. Is there or is there not a connection between this 'aversion to a Standing Army' and the famous wording 'A well regulated militia being necessary to the security of a free State, etc, etc.'?

 

That is, this 'aversion' was felt across the Atlantic among different subjects to the British Crown, who found a different solution? Not that the Colonials were the only ones to suffer the tender mercies of the British Army, IIRC during the Napoleonic wars half of the Dragoon regiments were kept home for internal security.

 

I apologise in advance if my question looks like complete rubbish, I'm not very familiar with early US history.

 

The US States, the 13 Colonies were, technically individual nations that decided to join but still retain their independence. The fear of a national standing army was that they would exert undue force upon the individual states and more or less remove their individual lawful power in their own state capitols. The Militia, organized and funded and trained at the individual, local and state level were seen as a counter to this.

[rmgill]

Wasn't this to ensure that there were troops of unquestionable loyalty available should the "bally natives get uppish"? Same as within brigades the Indian troops were divided in batallions along racial / religious lines (e.g. one each Hindu and Moslem Bn, plus a British)? To ensure that there wasn't enough critical mass to start another major rebellion.

 

That, and having Indian units having small arms one generation behind British units, up until WW1?

 

Yep, the American Founding Fathers were VERY much British and considered themselves such up until the necessary declaration of independence. The legal types of the time certainly had a strong foundation in English Law and our legal system today even technically derives from English Common Law. These are legal principles not usually explicitly codified as law but there are some that are. There are some also that are explicitly forbidden from enforcement (bills of attainder for example).

 

 

see: http://en.wikipedia.org/wiki/Law_of_the_United_States#American_common_law

[mnm]

The US States, the 13 Colonies were, technically individual nations that decided to join but still retain their independence. The fear of a national standing army was that they would exert undue force upon the individual states and more or less remove their individual lawful power in their own state capitols. The Militia, organized and funded and trained at the individual, local and state level were seen as a counter to this.

 

I was under the wrong impression, thank you Ryan

[rmgill]

I was under the wrong impression, thank you Ryan

 

Sure thing, oh, something to add....

 

The standing armies of the European powers, were, ultimately, the force answering to the King and National Government and were regularly used as ersatz police. King George's men were used as police and enforcers of crown policy domestically within the Colonies. The fear of such standing armies were predicated specifically upon this. Even the 2nd amendment's pre-amble alludes to this general distrust.

 

Those who point to the pre-amble of the 2nd as the justification for why the 2nd amendment applies to government forces and NOT individually owned arms in the context of the traditional militia (vs ordered and hired soldiers of the government) do so by ignoring that states and the federal government has powers and that individuals have rights. If it were to be viewed with the collectivist format, then the meaning would be that the STATES themselves have the "right" to arm their agents and military forces, where has anyone ever thought that a government must have or guard a 'right' to arms it's own forces?

Edited August 5, 2011 by rmgill

[nigelfe]

Sure thing, oh, something to add....

 

The standing armies of the European powers, were, ultimately, the force answering to the King and National Government and were regularly used as ersatz police. King George's men were used as police and enforcers of crown policy domestically within the Colonies. The fear of such standing armies were predicated specifically upon this. Even the 2nd amendment's pre-amble alludes to this general distrust.

 

Those who point to the pre-amble of the 2nd as the justification for why the 2nd amendment applies to government forces and NOT individually owned arms in the context of the traditional militia (vs ordered and hired soldiers of the government) do so by ignoring that states and the federal government has powers and that individuals have rights. If it were to be viewed with the collectivist format, then the meaning would be that the STATES themselves have the "right" to arm their agents and military forces, where has anyone ever thought that a government must have or guard a 'right' to arms it's own forces?

 

Er, as far as we know societies have always had means of bringing those that offended the 'rules' to 'justice'. The amount of force needed depended on the scale of the offenders, individual thieves were were handled fairly easily and locally, brigand gangs needed somewhat greater force. Armed retainers provided a force for day to day matters. Post medieval states really only had their armed forces to deal with 'public order' problems because the local 'constables' really only dealt with individuals.

 

'Militias', 'fencibles', etc, were local volunteer part time forces that could be called out when needed, by a locally authorised person. In some countries they became responsible for dealing with public order episodes, in addition to a more military role to deal with foreign invaders. They were not designed for expeditionary wars, this is where a 'standing army' was needed. The issue was how much standing army was needed in peacetime.

 

To anybody with some faint understanding of British history in the 18th C., and given the British heritage of the writers of the US Constitution, its blindingly obvious what the right to bear arms means, it means as part of a local militia, fencible, etc unit. Ie the US National Guard in modern terms. Anything else is illegal, I'm always amused by USers wriggling and semantic gyrations in trying to weasel out of this. Do keep it up chaps, its always good for a laugh.

[swerve]

I often find the US view of pre-US European history to be baffling. They tend to see it through a distorting lens, in which all states are absolute monarchies, only aristocrats have rights, etc. It's weird.

[nigelfe]

The Polish-Lithuanian Commonwealth is an interesting example, multi-ethnic, religiously very tolerant, elected ruler, by the Sejm. Of course membershipo was only about 10% of the population determined by hereditary not wealth or material power. It worked quite well until the RC church became too powerful.

[Chris Werb]

Its not that surprising when you realize that almost all of them emigrated there because of dissatisfaction with something on this side of the Atlantic.

 

No, they just couldn't hack it here

[Chris Werb]

To anybody with some faint understanding of British history in the 18th C., and given the British heritage of the writers of the US Constitution, its blindingly obvious what the right to bear arms means, it means as part of a local militia, fencible, etc unit. Ie the US National Guard in modern terms. Anything else is illegal, I'm always amused by USers wriggling and semantic gyrations in trying to weasel out of this. Do keep it up chaps, its always good for a laugh.

 

If it's a delusion, it's sure been going on for a very long time Nigel.

 

In his popular edition of Blackstone's Commentaries on the Laws of England (1803), St. George Tucker (see also), a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:

 

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.

 

In the appendix to the Commentaries, Tucker elaborates further:

 

This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

 

Not only are Tucker's remarks solid evidence that the militia clause was not intended to restrict the right to keep arms to active militia members, but he speaks of a broad right – Tucker specifically mentions self-defense.

[rmgill]

To anybody with some faint understanding of British history in the 18th C., and given the British heritage of the writers of the US Constitution, its blindingly obvious what the right to bear arms means, it means as part of a local militia, fencible, etc unit. Ie the US National Guard in modern terms.

 

Not really. The US National Guard is a federally funded but state commanded organ that is really only NOMINALLY under state command, it may be taken over in command by the federal government at any time of its choosing. It is NOT the equivalent of the militia in toto. In fact the Militia act of 1903 in fact shifted the organized state militas to FEDERAL control and funding and had them conform to federal organization. This ALSO stated that there was still an UN-organized militia (the remainder of the people).

 

Bear in mind that congress does not get to legally hand-wave away the constitution by law. The Dick Act does not supersede the 2nd Amendment. The only way congress may supersede the constitution is by changing it. (Article V USC.) Congress may, in part, try to articulate what it means in law but it cannot nor should not try to reverse it's meaning.

 

The fact that the National Guard is ultimately federally funded and commanded more or less moots it's near resemblance to the "militia" of the 2nd Amendment.

 

Anything else is illegal, I'm always amused by USers wriggling and semantic gyrations in trying to weasel out of this. Do keep it up chaps, its always good for a laugh.

 

And if you LOOK closely at US and English common law, anything which is NOT explicitly illegal is legal, so your base statement of "anything else is illegal" is grossly wrong. More so, the US constitution was EXPLICITLY written such that the 2nd guarantees individual rights (not state powers) AND that further explicitly states that the Federal Government has specific Powers (Article I Section 8). Powers over and above that are reserved tot he states AND to the people (url="http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution#Text"]10th Amendment[/url][/url]). Further, the rights of the people are not LIMITED to what is explicitly stated, there are innumerable rights which are retained and are thus also protected (9th Amendment).

 

You can try to use English Common Law as a basis for interpreting US law, however, I think you'll find that it is the starting point and NOT the ending point of the interpretive exercise. Using Current English law vis a vis restrictions will fall grossly short of any cognizant understanding OR remotely correct interpretation of US law, it's restrictions on powers exercised by the many states or federal government and how the people may exercise their freedoms.

 

If you're going to try to prognosticate as to what the Bill of Rights REALLY means to Americans vis a vis OUR and YOUR older laws, you might try doing some more intensive research.

 

Judge Sam Cumings' decision in US v Emerson is a VERY good starting point. Heller vs DC and McDonald v Chicago would be useful end points as well.

Edited August 9, 2011 by rmgill

[rmgill]

Not only are Tucker's remarks solid evidence that the militia clause was not intended to restrict the right to keep arms to active militia members, but he speaks of a broad right – Tucker specifically mentions self-defense.[/b]

 

Just so.

[nigelfe]

Tucker's notions of 'England' are the sort of self-serving legal weasling we might expect from a person in his position and background. To try and present the 'unorganised' people as a militia is more than somewhat disingenious.

 

If the right to bear arms was envisaged as all and sundry, and the common law principle is that what is not expressly disallowed is permitted then there would be no reason for the US constitution to mention the matter at all, since it would be covered by the right to liberty and happiness.

[Chris Werb]

If the right to bear arms was envisaged as all and sundry, and the common law principle is that what is not expressly disallowed is permitted then there would be no reason for the US constitution to mention the matter at all, since it would be covered by the right to liberty and happiness.

 

If that were true the entire US constitution could be encompassed in "Liberty and happiness being cool things, the right to liberty and to the pursuit of happiness shall not be infringed."

 

I'd actually prefer: "If it makes you happy, it can't be that bad".

[BillB]

Couldnt stand it here might be more accurate.

Bunch of lightweights. At least their consistent though.

 

BillB

[BillB]

If that were true the entire US constitution could be encompassed in "Liberty and happiness being cool things, the right to liberty and to the pursuit of happiness shall not be infringed."

 

I'd actually prefer: "If it makes you happy, it can't be that bad".

Yes mate, but remember that at the time the Constitution was drawn up the US was a mind-bogglingly huge and unexplored place full of hostile fauna and uncivilised savages who were likely to tip up without warning and do you. The vast majoriy of USians do no now live in log cabins days and days ride from their nearest neighbour and source of assistance. They now live in one of the most modern and sophisticated urbanised states in the world but *think* they are still residing in the latter half of the 18th Century log cabins. Apart from anyone living in South Central LA or similar, obviously.

 

From some of the stuff I see regularly on here I think they should amend things to read "the right to life, liberty, the pursuit of happiness and to whine and moan ineffectually on the internet about stuff while fondling their guns wistfully".

 

BillB

[BansheeOne]

Tucker's notions of 'England' are the sort of self-serving legal weasling we might expect from a person in his position and background. To try and present the 'unorganised' people as a militia is more than somewhat disingenious.

 

Actually the aforementioned Militia Act of 1903 that created the National Guard introduced into US Code that

 

§ 311. Militia: composition and classes

 

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

 

( 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."

 

http://www.law.cornell.edu/uscode/10/311.html

 

Now you could argue that only able-bodied male civilians between 17 and 45 have a right to bear arms, but that would probably violate more recent constitutional law regarding non-discrimination due to gender, age and physical constitution.

[Chris Werb]

Hi Bill. I'm still giggling from your post! However, in all seriousness, in a culture where the right to resort to violence is much more at the forefront of public conciousness, how close do you need to live to a neighbour to be within range of assistance, how likely is the neighbour to assist and how likely is that assistance to be effectual if it doesn't involve a gun? You're not going to get the guns off the bad guys without some technological leap and infringements of other rights. A lot of Americans that I know - including quite a few on this Forum - manifestly do live in areas we'd call the sticks. You think I live in the boonies, but my nearest neighbours are only hundreds of yards away. We have lots of guns up here, but only very rarely does someone turn one on someone else. There have been two gun murders in the nine years I've been up here. Likewise heavily armed rural areas in the US can be amazingly (to someone who grew up in urban fringe Essex) crime free. What does sometimes surprise me is that Americans in areas other than firearms legislation are subject to far greater state interference/control than we are. I'm thinking of everything through hunting, to going self-employed to buying a toilet. There are places where it is illegal to take a boat (any boat) out without a licence or dive alone or use SCUBA to gather shellfish or spearfish - we don't have anything like that. In Orkney you don't even need a rod licence for trout. I'd be hard put to give up these freedoms to own a specific kind of gun, however much I'd like to.

 

As an aside, when working in Belgium I had the wife of a US cop from Philadelphia come over as a proposal editor on a project I was on. She told my (very attractive) Belgian manager that one of the things she loved about Belgium was the absence of guns. My manager looked at her quizzically and replied "We have LOTS of guns in Belgium - we just don't use them to shoot at each other".

Edited August 10, 2011 by Chris Werb

[rmgill]

If the right to bear arms was envisaged as all and sundry, and the common law principle is that what is not expressly disallowed is permitted then there would be no reason for the US constitution to mention the matter at all, since it would be covered by the right to liberty and happiness.

 

Nigel, you might want to take a gander at the arguments discussed in Federalist 84 and Anti-Federalist 84.