this post was submitted on 14 Jul 2024
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This is the exact misconception I was talking about.
The militia consists of the "whole body of the people". We know this from various contemporary writings, including descriptions in the Federalist Papers. We know how the term was used in the constitution, and we know it was used to refer to "We The People".
In the constitution, it is always referred to as a singular entity. It is never referred to in the plural: there are no such thing as "militias"; there is only one "militia".
You mentioned the National Guard. In constitutional terms, the National Guard would be a "[provision] for calling forth the militia" (Article I, Section 8, part 15). The members of the national guard haven't been called forth to the militia. They have been called forth from the militia. This becomes obvious when we look at the other major provision for calling forth the militia: Selective Service. The Draft.
Congress's authority to institute a draft, compelling "We The People" to report for military training and service against our individual will comes from their power to "call forth" the militia. We are members of the militia, and we are called forth. We are called forth from the militia, not to it. Congress would have no power to draft us if we were not members of the militia, and subject to their provisions established under the militia clauses. Which means that We The People are, in fact, the militia described in Article I and the Second Amendment.
If you don't feel you and your fellow militiamen are adequately "well regulated", you should petition Congress to impose more requirements than what they currently deem necessary and proper regulation of the militia, and I'll see you at the next muster.
What you describe is an interpretation that the courts have laid out, nothing more. And the point I make is that the courts are many times wrong. And in this case, it is wrong. One aspect is that women were not called ~~to~~ (sorry) FROM militia. Yet women are afforded this right today, yes? So a single woman prior to the courts' various opinions over the centuries would not have such a right, since they would not be a part of the militia -- thus, the founders did not intend on it being every person. In fact, women were not even considered full citizens then since they did not possess the right to vote. Then there's the subject of slaves which I have no interest in diving into since that's an even bigger can of worms.
The point is that interpretations is what has won, not original intent. You can hand-wave this as a misconception all you want, but there is logic in it. And that logic is that the Constitution was designed to change over time solely because the founders could not envision the future state of existence, only lay the groundwork for such. Therefore as the second amendment is written, women at minimum should not have this right because, even today, they cannot be drafted -- by your own statements: "the militia: Selective Service. The Draft."
Like most things, this was up to the individual states. Like anything up to the individual states, it was all over the place depending on exactly where you were. For example, at the founding women in New Jersey could vote, presuming they owned 50 British pounds worth of wealth because the wealth requirement was the only requirement New Jersey had for who could vote. Ironically, the spread of Jacksonian democracy (aka universal male suffrage) actually cost women in New Jersey the right to vote in the 19th century.
I meant federally protected right to vote, since that’s apples to apples comparison with the second amendment being a federal right. Thus, from a federal point of view, women were not full citizens in many various terms.
The Constitution didn't establish a right to vote for men in general or any men in particular. It left the question of which citizens were allowed to vote fully up to the states.
Or to go deeper: The Declaration of Independence limited voting to landowners. The Constitution set no regulations whatsoever for which citizens could vote, leaving it wholly up to the states. There are various trends in state laws over time but nothing federal regarding who can vote (other than various immigration laws about who can be naturalized). Until the 15th Amendment: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."
Technically, men did not have a federally protected right to vote until women did, the 19th amendment. Though state laws had expanded to give essentially all free white men the vote in every state shortly before the Civil War, but that's not from that federal point of view you're so worried about.
Seems like you’re making my point for me despite my point being specifically about women’s citizenship and 2A supposedly applying to everyone (you know, “militia”) when it actually doesn’t.
Thanks!