Supreme Court Brief Makes the Case Against Banning Militia Arms
BY Herschel Smith
1 month, 1 week ago
“Arms that bear a reasonable relationship to the preservation or efficiency of a well regulated militia… lie at the core of the Second Amendment’s protection, and a State may not prohibit them,” the brief concludes. “A prohibition imposed because those arms are useful for the common defense is contrary to the Second Amendment’s text, purpose, and history.”
Yes. Exactly. The entire premise that they get to regulate arms because they too much resemble military weapons turns the second amendment on its head. It is precisely those arms which are protected by the 2A.
Besides, not only is the above correct, but I have previously pointed out the subterfuge of trying to distinguish between military and civilian weapons.
This notion of military style weapons is and always has been a misdirect and a bald and stupid emotional appeal. There is no such thing as a non-military style weapon. Every weapon was at one time a military style weapon, from rocks to spears and then to knives and swords and then on to bows and then to muskets, bolt action rifles, and semiautomatic and fully automatic rifles.
The U.S. Marine Corps used Benelli shotguns for room clearing in Now Zad, Afghanistan, and I can prove it …
Door gunners used revolvers in Vietnam, and I can prove it …
MACV-SOG used revolvers and Marlin .444 lever action rifles in Laos, and I can prove it.
And bolt action rifles are still in use today with snipers …
This is about disarmament. This isn’t about military versus civilian weapons. There is no distinction.
I proved my case. The correct answer is not in doubt. I am right. Everybody knows I’m right. I enjoy being right. I am so right that there is no further purpose in arguing about it.
But being right doesn’t necessarily mean much when the politics of the court gets in the way.
On September 7, 2026 at 10:41 pm, Georgiaboy61 said:
In the time of the Founders, “well-regulated” had a substantially different meaning than in today’s world. It did not mean controlled by rules and red tape; it meant “well-equipped” “well-armed” and “well-trained.”
Thus, a “well-regulated” militia was one in which the men were well-equipped, well-armed, well-provisioned and well-trained. The equal of their regular army counterparts, in other words.
Tench Coxe, one of the Founding Fathers, said, “…Congress shall have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…”
Then original intent of the Founders, which has been diluted over time and regulated downwards – was that the people would have access to same weaponry used to equip the army, not just small arms.
In theory, this was to result in a balance of power between the state and the people. But in reality, it has not unfolded in precisely that manner.
The role of militia in American life, which was tied to the Founder’s America, was eventually severed from the very fact of the founding of the United States. Over time, the people grew complacent and comfortable with the fact of a large standing army, and the Dick Act of 1903 federalized the National Guard.
Over time, the idea took hold that the Second Amendment protected only individual or small arms, and not other forms of weapons and equipment.
By the turn of the 20th century, the old models of how to raise military forces were mostly obsolete and discontinued, to be replaced by the state itself as the sole arbiter and user of force. By this time, the state had a monopoly on the use of force.
The Swiss model provides a fascinating contrast to our own. That “nation of riflemen” is also one of the most well-armed per capita in the world. However, under their system, every male does obligatory military service for a relatively brief period after completing secondary school. Eighteen months to two years, if memory serves.
During this time, the young man receives his training as a soldier, including the use of his individual weapon. After the conclusion of his military service, except for those individuals who wish to make the military their profession, the trainees muster out back into civilian life to return to their individual pursuits. They are hereafter members of the reserve.
The individual reservist is issued a service rifle or other individual weapon, which he keep in his home, along with a stock of ammunition for it. He is expected to remain proficient by attending regular training and also by taking part in the rifle competitions which have become a part of Swiss national life.
The Swiss male remains in the reserve until he is too old to take part. All during that time, he is liable to be called up to defend his homeland.
The story is told that on the eve of the Great War 1914-1918, Kaiser Wilhelm and his military staff went to Switzerland on a military-diplomatic tour. An honor guard of Swiss troops was prepared for his inspection. At the conclusion, the Kaiser stopped in front of the old regimental sergeant major, to compliment him on the appearance and discipline of his troops.
Half in jest, the Kaiser said, “Germany has an army twice as big as yours. What would happen if we decided to invade?” The old sergeant major thought for a moment, and then replied, “Your Excellency, if that were to happen, each of our men would would have to shoot twice!”
Imperial Germany never did invade Switzerland, and neither did Germany 1933-1945, during the era of Adolf Hitler.
And that is how Switzerland has resisted invasion for centuries…
On September 8, 2026 at 12:09 pm, Frank Clarke said:
@Georgiaboy61:
The Swiss have a centuries-long tradition of not responding well to bullying. The story I heard was that Hitler sent an emissary to Switzerland to talk them into being Anschlussed like Austria.
His Swiss counterpart called for his car and the two went for a ride in the country. “Pick a house, any house.” the Swiss urged. When the Nazi finally chose a house, they rang the doorbell and when it was answered the Swiss displayed his credentials and ordered “Show me your rifle.” The homeowner produced his issue-weapon on demand.
The message was clear, concise, and courteous: yes, you can take us over, but you will do it canton by canton, village by village, and house by house, and afterwards you won’t be able to do so to anybody else.
Switzerland remained neutral.
On September 8, 2026 at 12:28 pm, scott s. said:
I don’t know how important the Swiss military model is/was to their policy of neutrality, at least in the more modern period of EU nation-states. But certainly US history has never implemented a militia system as perhaps contemplated by the founders. Expecting states to maintain militias for possible federal service seems a bit unrealistic.
Actual experience demonstrated that states supplying bodies and the feds logistics was unworkable.
On September 8, 2026 at 5:58 pm, Georgiaboy61 said:
@ Frank Clarke
Re: “His Swiss counterpart called for his car and the two went for a ride in the country. “Pick a house, any house.” the Swiss urged. When the Nazi finally chose a house, they rang the doorbell and when it was answered the Swiss displayed his credentials and ordered “Show me your rifle.” The homeowner produced his issue-weapon on demand.”
Many Swiss “homes” are actually fortifications built to look like homes, in other words, the walls are four feet thick reinforced concrete. Swiss bridges and tunnels have compartments built into them which are designed for use with explosives should it be necessary to blow them up in the face of an invading army. And so on. They take that sort of thing seriously over there.
@ Scott S.
Re: ” But certainly US history has never implemented a militia system as perhaps contemplated by the founders. Expecting states to maintain militias for possible federal service seems a bit unrealistic. Actual experience demonstrated that states supplying bodies and the feds logistics was unworkable.”
I suspect that the actual reason modern day statists don’t like the militia-based system is that it decentralizes and disperses military force down to the level of the states, communities and even individuals, rather than centralizing it in the hands of a few people, as the current system does.
The other “problem” with a colonial militia type of system vis-a-vis the statists is that there was no compulsion. Any man was free to come and go as he pleased, based upon his own needs and conscience. He had to follow orders when he was in the militia, but he could muster out at any time.
The people themselves determined who would fight, when and where – at least insofar as the militia was concerned. The Continental Army, which was a professional military, was another matter. It was run along more conventional lines. Desertion was a thing.
There are plenty of people who benefit from the status quo structure of the military. People don’t always like change even when it is beneficial. But recent events ought to light a fire under policy-makers to be more open to new ideas, if for no other reason than the fact the once-vaunted U.S. military isn’t as much of a world-beater as in decades past. Our rivals and adversaries have closed the gap considerably and in some cases have surpassed us. Russia’s lead in hypersonic missiles, for example.
The U.S. spends much more than any other nation on defense, and it is not unreasonable to expect a commensurate return on that dollar. Nations which spend far less but have better and more capable weapons, for example, than we do – is an unacceptable outcome.
On September 8, 2026 at 7:35 pm, Quietus said:
The above post says that door gunners in VN carried revolvers “and I can prove it”.
I can prove it also. There’s a pic on my phone (perhaps from this site) showing a VN-era door gunner on a Huey (believe to be USMC due to his K-Bar), who has a .30 caliber US carbine in hand and a Western belt rig with a Ruger single action and cartridge loops which I suspect to be filled with carbine ammo. That puts the “revolver” as Ruger’s offering of the carbine cartridge in that guy’s holstered gun.
I’ve never shot a Ruger pistol in .30 Carbine but have heard that muzzle blast is fairly severe.
On September 9, 2026 at 7:49 pm, X said:
“In the time of the Founders, “well-regulated” had a substantially different meaning than in today’s world. It did not mean controlled by rules and red tape; it meant “well-equipped” [and] “well-armed”
-No, it didn’t, GB. Well-regulated meant governed by the state and federal governments. “Regulated” meant controlled and disciplined by the government.
The Second Amendment — and the entire Constitution itself — must be understood within the context of Shays’s Rebellion, in which a bunch of rogue militiamen, Revolutionary War veterans, and drunks mutinied against the State of Massachusetts when it raised their taxes and started storming into courtrooms armed when they faced foreclosure on their farms.
Shays’s Rebellion, which occurred in 1786, was a major reason why Madison and Hamilton thought the Articles of Confederation were a failure and called for the Constitutional Convention the following year in 1787. Gen. Washington, who served as the Chairman of the Constitutional Convention, was disgusted by the rebellion.
The language of the Second Amendment is so 100% crystal-clear it is unfathomable that people have spent over a century twisting it completely out of context to the point where they think it means the opposite of what it actually says.
It says the MILITIAS shall be regulated, BUT the “right of the PEOPLE to keep and bear arms” shall not be infringed. Meaning that collective bodies of armed men shall be regulated, but the right of any individual to own guns minding his own business on his own free time shall not be infringed. Infringed by whom? — by the newly-created federal government.
It was written (along with the rest of the Bill of Rights) as a compromise to the Anti-Federalists, who feared that the new federal government would try to pull the same thing the British did at Lexington and Concord, namely confiscate guns from the locals.
Why did the Anti-Federalists fear that? Because Art. 1, Sec. 8 gave the new federal government the right to raise a standing army, and it gave the new federal government jurisdiction over the training and equipping of the militias.
So the Second Amendment was written to assure people that the new government was only going to be concerned with the likes of Capt. Shays and his mutineers, not you and your individual guns.
On September 10, 2026 at 10:12 am, Herschel Smith said:
“Well regulated” means well-functioning, not under the control of the federal government.
On September 10, 2026 at 7:58 pm, X said:
“Well regulated” means well-functioning, not under the control of the federal government.
I beg to differ:
Article I, Sec. 8 of the U.S. Constitution:
“Congress shall have the power…
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”
On September 11, 2026 at 8:36 am, Herschel Smith said:
I understand your point. But that’s if the militia is called up in the service of the U.S. That doesn’t ensconce all control into the federal government.
On September 11, 2026 at 4:22 pm, Georgiaboy61 said:
@ H.S.
Re: “I understand your point. But that’s if the militia is called up in the service of the U.S. That doesn’t ensconce all control into the federal government.”
In the days of the Founding, the militia belonged to the states and even communities themselves as much as the federal government. Indeed, language formalizing control over militias raised at the state or local level did not occur until 1903 and the passage of the Dick Act, which formalized the structure of the National Guard as subordinate to the U.S. Army if it was nationalized in time of war.
As late as the Spanish-American War of 1898, local communities raised troops to be sent to fight in Cuba. They may have fought under the banner of the U.S. flag, but they were locally-raised and often locally-equipped, depending on the units involved, state regulations and so on.
They were brought into the command structure of the army once in Cuba or perhaps upon embarkation by sea, but they were not regular army units in any sense of the word.