Talk:Parker v. District of Columbia

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[edit] Question about "enrolled"

The court defines a militia relatively broadly to include every person "enrolled" with his local militia officer. The court analogizes enrollment to signing up with federal Selective Service today (although elsewhere the court implicitly deprecates that analogy by stating that the National Guard is not today's version of the militia -- and since Selective Service links to the regular military, it seems even less like "enrollment" than the National Guard seems like a "militia," although the court did not examine this). After reaching its definition of "militia," the court makes the conclusory statement that an individual's right is not "contingent upon his or her continued or intermittent enrollment in the militia." Why, if it is so important to find an accurate definition of "militia," does the court then just skip over the application of its definition to the parties? It took a lot of work to get "militia" down to (basically) "every enrolled 18-year old." Why then say that "militia" is "not contingent on" enrollment?

Specifically defining the Second Amendment to require "enrollment" and then using the Amendment to protect the unenrolled plaintiffs seems like judicial activism to me. Am I completely misreading this? Even if Federal Selective Service were to count as "enrollment," some of the plaintiffs in this case are women who are probably not registered with the Selective Service. And even if the court's conclusory statement is allowed to pass, it does not excuse everyone who's never enrolled in the militia, it only excuses those with "continued or intermittent" enrollment -- which still requires each plaintiff to have enrolled at one time, even if he is (a) not enrolled today or (b) has been enrolled intermittently since then. If it's so important, why not ask whether each of the plaintiffs ever enrolled in the militia? --Yawnz1 15:11, 22 March 2007 (UTC)

My impression - the court only says that the first two Militia Acts defined the militia as consisting of persons enrolled with a local militia officer. It did not state that "enrollment" was a necessary part of the definition of militia, and in fact went on to state that other statutes can and have (for example, current federal law) defined the militia as consisting of a significant "unorganized" percentage of the people. I think it focused on "enrollment" early on to counter the idea that being a member of the militia was a very formal and organized thing, similar to modern reserve or National Guard duty, by pointing out that in the first federal militia acts all it meant was having your name on a list of local adult males. PubliusFL 15:54, 22 March 2007 (UTC)

Thank you. That sounds right. Although the court stated that "Miller defines the militia as having only two primary characteristics: It was all free, white, able-bodied men of a certain age who had given their names to the local militia officers as eligible for militia service," the court does not apply that definition to this case but rather uses it to make "[t]he crucial point . . . that the existence of the militia preceded its organization by Congress, and it preceded the implementation of Congress’s organizing plan by the states."

But then the court quotes with approval the District's law, which requires enrollment and relegates the unorganized militia to drunkards etc., according to the court. Even ignoring the whole "well-regulated" discussion (and the fact that DC is not a "State"), wouldn't the court have to apply the law it cited, and find that the plaintiff-appellants were either enrolled in the organized militia or drunkards in the unorganized militia? That law, after all (unlike the court's historical analysis) is actually binding on the court, unless it finds that it, too, is unconstitutional.

I think you're right that the court found that the parties (as are all able-bodied people etc.) are members of the unorganized militia, and that its holding depended on finding that such a militia still exists. I wonder why the court didn't say it clearly.

--Yawnz1 16:58, 22 March 2007 (UTC)