While a generally good article, I disagree with Kates on a few points:
1) The "organized" militia is not, IMHO, the average Joe and his friends and neighbors involved in training and drills. The organized militia was the Minutemen, highly trained soldiers (vs. the ordinary Joe), yet not part of the actual armed forces. Today's equivalent would be the National Guard of the various states, in their unfederalized capacity. The moment they are federalized, they become part of the armed forces. In fact, the U.S. Code currently defines the National Guard as the "organized militia," and a 1990 Supreme Court case specifically ruled that the NG of a state, at the moment of and duration of its federalization is part of the regular armed forces for Constitutional purposes.
2) "The Amendment covers only small arms. Neither RPGs, cannons, grenades nor the other super-destructive devices of modern war are covered."
Wrong, esp. with regard to cannon and warships. The Constitution specifically grants Congress the authority to grant Letters of Marque and Reprisal (Article I, Section 8). This basically means that Congress can grant some private citizen (or any number of them) the right to be privateers (i.e. pirates). This was done in order to be able to destroy or hijack foreign warships or merchant ships, as an aid to the US Navy. How, exactly, does Mr. Kates think that a private citizen could hijack a foreign vessel loaded with valuable cargo without cannon? How, in today's world, could one do so without an armored ship of some type? IMHO, the rights protected by the 2nd Amendment include the right to own armed warships. However, Congressional authority to grant Letters of Marque and Reprisal indicates that the ability of a citizen to USE those weapons (i.e. non-small arms) in a hostile fashion is subject to limitation. Thus, Bill Gates can buy himself a carrier task force if he is so motivated and can write the check for it. Using if for anything other than steaming around from place to place is another matter, but the right of ownership and possession is, IMHO, beyond question. Similarly, if someone who can afford it wishes to buy an RPG or grenades, I don't have a problem with that.
Let's think about this a bit: The Federal Government has an unchallenged right/power to own nuclear weapons, bombers, MOABs, rapid-fire naval cannon, submarines, etc. From where, exactly does that authority originate? The answer is in the first 3 words in the Constitution: "WE THE PEOPLE." I fail to understand how it is legally able to own something that we are prohibited from owning.
3) "Guns may be banned to juveniles, convicted felons, aliens and the insane, all of whom have been excluded from the right to arms in free societies dating back to ancient Greece. (Juveniles have the right to use firearms under parental supervision.)"
On the surface, this makes sense. However, what would happen if the government made very minor infractions (like speeding on an Interstate Highway, or owning a gun when subject to a restraining order during a divorce - not using it, just possessing it) into felonies? What if states said that similarly minor offenses (like fighting in a bar where no one uses a deadly weapon and no one is hurt badly) were felonies? In that situation, large segments of the population would be (and, to date, HAVE BEEN) disarmed. No sir, I think that only someone convicted of a VIOLENT felony (i.e. rape, murder, arson, etc.) who is either in prison or on parole should be denied the right to self defense. Once the person's debt to society is paid, their rights should be restored (and if some people can never be reformed and will always be a threat to the public safety, then why the Hell are they being released from prison in the first place)?
4) I disagree regarding registration and licensing, at least as long as the concepts of government being able to ban guns or gun ownership exist (i.e. always). There have been innumerable incidents in which registration lists of guns or gun owners have been used to confiscate guns and jail/murder their owners (even in the US, except for the murder part). Nope, as long as people who attend a place of worship and their bibles and various religious articles cannot be registered because the 1st Amendment prohibits such a thing, then neither can gun owners or guns be registered.
The only recording that I would permit would be letting the government record exactly which militia members actually possess the government-issued service rifle or handgun at home at any given moment in time. The Swiss, whose militia system our was modeled on, do this, so I guess that I'd permit it here. Such a thing would enable a more rapid callup of the troops in the event of a national emergency. Of course, I'm not holding my breath waiting for the Feds to hand out full auto M-16s free of charge to the general public, but such is the ONLY circumstance where I'd Constitutionally permit any kind of registration of firearms or their owners.
"1) The "organized" militia is not, IMHO, the average Joe and his friends and neighbors involved in training and drills. The organized militia was the Minutemen, highly trained soldiers (vs. the ordinary Joe), yet not part of the actual armed forces. Today's equivalent would be the National Guard of the various states, in their unfederalized capacity."
While I largely agree w/your writings, I can't let this go!
"organized militia was the Minutemen, highly trained soldiers (vs. the ordinary Joe"
Well, wouldn't George Washington be surprised! Minutemen were nothing more than militia who were to be ready in a minute to go. Militia were indeed NOT highly trained ! They were exactly as Zavian (I believe) described - and this man does RevWar history. Good Lord, the RevWar was rife w/"citizen soldiers" w/nary a well-trained lot amongst the Continentals, much less local alarms and militia, which were meant to be quick response to local threats! Even tho those militia were "long-standing", they were NOT at ALL "highly trained"!
As for the National Guard - it is NOT the militia. The militia is defined separately, and you, as a proper-age male, could be called on in a deadly serious happening in your locality! The militia are all able-bodied males of certain age. Period. The National Guard - you specifically volunteer and join. Bit of a difference.
Not really. The organized militia, in a colonial sense, was the average Joe. In Massachusetts, at least, there were no organized police forces, let alone standing armies, and therefore community defense was everyone's business. Every able-bodied man who could train and drill with his friends and neighbors did, and they were indeed the organized militia.
The "minutemen" concept was a direct response to British aggression in 1774/75. The Provincial Congress of Massachusetts ordered each community to create special companies of men who'd be ready to mobilize immediately. These men, naturally, were the youngest, strongest, most motivated men in each community's militia.
Both minuteman companies and regular militia companies fought side-by-side at Lexington & Concord and Breed's/Bunker Hill. There simply wasn't the equivalent to an organized army of any kind prior to the formation of the Provincial Army, which was eventually folded into the Continental Army.