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ETpro's avatar

Do you think Congress' first "Must Purchase Mandate" --The "Militia Act of 1792 -- was unconstitutional?

Asked by ETpro (34247 points ) June 28th, 2012

The Militia Act of 1792 required all able bodied men to arm themselves with a musket, bayonet & belt, a cartridge box with 24 bullets, two spare flints, and a knapsack. Men owning rifles were required to provide a powder horn, ¼ pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack. There were a small list of men exempted due to being employed in occupations deemed necessary to the nation’s survival. Members of Congress, stage coach drivers and ferryboat men were exempted, for instance. George Washington made use of the law in calling up the Militias to put down the Whiskey Rebellion in 1994

Do you think a Congress well appointed with Founding Fathers, and a President who himself was chief among the Founding Fathers were wrong about the constitutionality of the mandate? Or is a mandate fine when it’s aimed at killing people, but a problem when aimed at saving lives?

With the Affordable Care Act being upheld by the Supreme Court today, it seemed sensible to look at the precedent for an individual mandate. When the GOP Justices like Scalia mouthed Rush Limbaugh talking points like "You can make people buy broccoli", do you think it was because they were simply ignorant of precedent, or because they were playing to a partisan crowd they knew were ignorant of it?

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9 Answers

wundayatta's avatar

Oh come on. It’s politics. You know that. Conservatives don’t have a moral leg to stand on. They refuse to see how inter-dependent we all are. They believe in the myth of personal independence. They see the world in a highly unrealistic way.

josie's avatar

My understanding without having the time to study it, is that it was not the order to buy insurance that passed muster, but the levying of a fine if you do not. Congress has plenty of work to do to make that happen, or the issue will come back to the court.

But why be cynical. Roberts, not a timid conservative, voted with the “liberal” justices and wrote the opinion.

I bet Scalia would have not approved of the referenced 1792 law either. Having said that, it was Scalia I believe who said something to the effect that the Constitution was not a suicide pact. Maybe he might have thought that the second Congress was responding appropriately to a crisis of arms. Who knows. Here’s your GQ though.

Fly's avatar

The Whiskey Rebellion was in 1994? Man, was I off by about 200 years. ;)

elbanditoroso's avatar

@fly – the whiskey rebellion was in 1994. I stopped buying Jim Bean and started buying Scotch.

bolwerk's avatar

I haven’t read the 1792 law, but from what you’re describing it might be defensible based on the Second Amendment – the alternative, undesirable to the founding fathers, was a standing army. Having those things listed is regulation of a militia (and not necessarily regulation in the modern sense). BTW, I think Cobb County, Georgia, requires every household to own a firearm, also defensible in keeping with the state’s right to a well-regulated militia.

@josie: not really. The fine was considered in line with the Congress’s power of taxation, and that’s the only reason it passed muster – even with the justices that weren’t Scalia, Alito, Thomas, and Kennedy.

jerv's avatar

Mandates are fine when made by Conservatives.

Seriously though, we do prefer violence. The same people who yell about spending a trillion on healthcare think that spending many trillions on an unwinnable way isn’t enough money.

Societies change with time; right now, the Constitution is only used to try to strike down laws, but is conveniently ignored otherwise. Whether something is constitutional or not no longer matters.

bolwerk's avatar

Article I, Section 8 of the U.S. constitution in part:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

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;

You can see how especially that last delegation of power would afford Congress the right to mandate the purchase of arms. I’m not making a case that the healthcare mandate is wrong, but this is definitely something that was in the original Constitution – probably something the very people who wrote the constitution anticipated wanting to pass.

filmfann's avatar

In 1794, the United States did not have a standing army, therefore Washington’s move made sense.

ETpro's avatar

First, my sincere apologies to all for the inept editing. I didn’t catch “Whiskey Rebellion in 1994” when it should have been “1774” till way to late to edit it. And the saddest part is I posted this question early in the day, so I can’t even blame whiskey for the lapse.

@wundayatta I can’t disagree with a word of that.

@josie I always look forward to your nuanced “honestly conservative” viewpoint on things. Here’s your Great Answer. :-)

@Fly See above. I am SOOOO busted. And I can’t even blame too much whiskey!

@elbanditoroso Oh yes, THAT whiskey rebellion. That’s what I meant all along… <lying blush>.

@bolwerk Thanks for the historical perspective to the Constitutional review of the law.

@jerv Let’s remember that despite the modern Con Men co-opting them, the Founding Fathers were not conservatives. Trey were liberal revolutionaries. Conservatives of those days were calls things like Tories and Traitors.

@bolwerk Point made.

@filmfann True.

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