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SHERMAN moved to strike out the last member, "and authority of training, " &c. The states will have this authority, if not given up.... [Rufus] KING [of Massachusetts], by way of explanation, said, that by , prescribing the manual exercise, evolutions, &c. The Convention rejected a more comprehensive substitute for the second clause to the effect that Congress would "establish a uniformity of arms, exercise, and organization for the militia ...." For example: MR.[Jonathan] DAYTON [of New Jersey] was against so absolute a uniformity.
'The people' are 'the governed.'" Justice Brennan also reviewed the drafting history of the Fourth Amendment, noting that the Framers "[c]ould have limited the right to 'citizens,' 'freemen,' 'residents,' or the 'American people.' ...
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.
Throughout that entire process, no speaker or commentator, pro or con, referred to the term 'the people' as a limitation." Similarly, the Framers could have limited the Second Amendment right to select state militias, but instead used the terms "the people." Finally, Justice Brennan pointed out that rights are not "given the government....
[T]he Framers of the Bill of Rights did not purport to 'create' rights.