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Mason proposed a power "to make laws for the regulation and discipline of the militia of the several states, reserving to the states the appointment of officers." "He considered uniformity as necessary in the regulation of the militia, throughout the Union." Oliver Ellsworth of Connecticut proposed that "the militia should have the same arms and exercise, and be under rules established by the general government when in actual service of the United States; and when states neglect to provide regulations for militia, it should be regulated and established by the legislature of the United States." He explained: "The whole authority over the militia ought by no means to be taken away from the states, whose consequence would pine away to nothing after such a sacrifice of power." John Dickinson of Delaware supported both Mason and Ellsworth.A most important matter was "that of the sword." His opinion was, that the states never would, nor ought to, give up all authority over the militia. He proposed that the power extend to only part of the militia at any one time, "which, by rotation, would discipline the whole militia." Mason then incorporated this idea of "a select militia" into his proposal. That term had a less innocent meaning in the mind of Ellsworth, who "considered the idea of a select militia as impracticable; and if it were not, it would be followed by a ruinous declension of the great body of the militia. This power in the United States, as explained, is making the states drill-sergeants. [James] MADISON [of Virginia] observed, the " Thus, the power over the militia was intended to establish standards for exercises and for arms, which the people would furnish themselves.The state power to maintain militias vis-a-vis the federal military power was already treated in the text of the Constitution before the Bill of Rights was proposed.Article I, Section 8 empowers Congress "to declare War, ... [and] to make Rules for the Government and Regulation of the land and naval Forces ....The first, passed in 1792, provided that "every able-bodied male citizen between the ages of eighteen and forty-five be enrolled [in the militia] and equip himself with appropriate weaponry ...." In 1903, new legislation "divided the class of able-bodied male citizens between eighteen and forty-five years of age into an 'organized militia' to be known as the National Guard of the several States, and the remainder of which was then described as the 'reserve militia,' and which later statutes have termed the 'unorganized militia.'" Both of the above were passed under the Militia Clauses of the Constitution. By contrast, in legislation dating to 1916, "the statute expressly provided that the Army of the United States should include not only 'the Regular Army,' but also 'the National Guard while in the service of the United States' ...." Today's National Guard came into being through exercise by Congress of the power to raise armies, not the power to organize the militia.The Court referred to "the traditional understanding of the militia as a part-time, nonprofessional fighting force," and as "a body of armed citizens trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace." The Court also recognized the existence of "all portions of the 'militia'--organized or not ...." The Court concluded that "there is no basis for an argument that the federal statutory scheme deprives [a state] of any constitutional entitlement to a separate militia of its own." The Court failed even to suggest that the Second Amendment had any bearing on the issue.The historical portion of this study ends with a review of enactment of the militia act of 1792 by the First Federal Congress.
The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by ")(emphasis added).The second group, consisting of amendments related to the structure of government, included recognition of the power of states to maintain militias.The former became the Bill of Rights, while the latter was defeated. Somehow, through some Orwellian rewriting of history, as applied to the issues of the right of the people to keep and bear arms and the state militia power, that which was defeated has become the meaning of that which was adopted.On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States, while, on the other hand, there was a recognition of the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense.Thus, Congress was authorized both to raise and support a national army and also to organize "the Militia. The Court then reviewed Congress' various militia enactments.