It's a matter of powers granted by the Constitution.

If those powers include suspension of habeas corpus during emrgencies and insurrection, such actions are "lawful."

This is not a matter from an outside nation that doesn't reckognize our constitution this is the nation whoms founders wrote the constitution.

So in this situation it would be lawful?

OP, in the scenario you describe, is there an invasion or rebellion?  (Rebellion is subjective, particularly to the courts)

If yes to either of these, you would most likely be on the losing end...  IMO of course.

I agree but if no would my rights under the 2nd amendment be violated?
How would I know "no communications".
What would the confines of rebellions more so than invasions be subjected to city,county or state?

I don't know the answer to your question. But if the situation ever arises where there has been a breakdown in society of a magnitude which the .gov feels the need to implement martial law I will be damned if they will disarm me! Won't happen for any reason if I am breathing. I can and will protect me and mine. An if I fail to do so nobody will ever complain on my behalf that the government should have protected me as it is my right and therefore my choice to defend myself. In such a case the second ammendment will trump any other decisions as far as I am concerned and may God be with any soul who attempts to prove me wrong and take my guns.

I would say yes, but then again, I have zero constitutional experience.  This is only my opinion.

Aka Katrina... if you make a stand from those confiscating weapons and whether you live or die, I believe you to be lawfully defending your 2nd amendment rights.

I would say yes your rights are being violated but do you think the government at that point will care? No probably not and your ass would be made an example of if not dead.

"Without Congressional approval, the President now has the power to transfer whole populations to any part of the country, the power to suspend the Press and to force a national registration of all persons. The President, in essence, has dictatorial powers never provided to him under the Constitution. The President has the power to suspend the Constitution and the Bill of Rights in a real or perceived emergency. Unlike Lincoln and Roosevelt, these powers are not derived from a wartime need, but from any crisis, domestic or foreign, hostile or economic. Roosevelt created extraordinary measures during the Great Depression, but any President faced with a similar, or lesser, economic crisis now has extraordinary powers to assume dictatorial status."

These types of powers were never meant for our government to have IMO and if a point ever comes about again where Martial Law is used, at that time that will be the supreme law of the land and I believe nobody including congress can do shit about it for a minimum of 6 months, then congress can review it. I don't even know what congress can do from there.  This is from reading, I don't know how accurate it is though.  

In such an event couldn't a whole nation become unrest and uncivil during an election or political treasons and martial law instated to disarm the people and declare them to be a rebellion?

ROE's change. Frequently. From "kill anything that moves" to "tip-toe through the fuckin' tulips".
You also have to take into account troop discipline. Some units in the U.S. military excel in this arena, some don't. None here should take offense to that statement, it's just the way it is. There is going to be a large difference in the way a military police or infantry unit handles itself in stability operations, as opposed to the motor-t or maintenance support unit that just got shifted in to do the same job.

Now as to the topic at hand, I can see a constitutional allowance for troops on the street in the case of rebellion. Secession does not equal rebellion, IMO. Trying to forcefully take over a duly elected government body without lawful process qualifies, unless that duly elected body is actively violating their oath to defend and uphold said constitution. We can get into the arguement of whether the constitution allows secession for a different thread.

Demonstrations do not equal rebellion. I find it disturbing that city and state officials are quick on the trigger for federal assistance in these instances. Local and state resources should be exhausted before even considering calling in federalized troops or law enforcement, and only as a last resort.

From Wikipedia (I know, it can be edited):

The Posse Comitatus Act is the United States federal law (18 U.S.C. § 1385, original at 20 Stat. 152) that was passed on June 18, 1878, after the end of Reconstruction. Its intent (in concert with the Insurrection Act of 1807) was to limit the powers of local governments and law enforcement agencies in using federal military personnel to enforce the laws of the land. Contrary to popular belief, the Act does not prohibit members of the Army from exercising state law enforcement, police, or peace officer powers that maintain "law and order"; it simply requires that any authority to do so must exist with the United States Constitution or Act of Congress. In this way, most use of the Army and the Air Force at the direction of the President does not offend the statute, even though it may be problematic for political reasons.

The statute only addresses the US Army and, since 1956, the US Air Force. It does not refer to, and thus does not restrict or apply to, the National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor (in its federal capacity, the National Guard forms part of the Army or Air Force of the United States). The Navy and Marine Corps are prohibited by a Department of Defense directive (self-regulation), but not by the Act itself.[1][2] Although it is a military force,[3] the U.S. Coast Guard, which now operates under the Department of Homeland Security, is also not covered by the Posse Comitatus Act, primarily because the Coast Guard has both a maritime law enforcement mission and a federal regulatory agency mission.

Reading this, the Army and/or Air Force can be used to enforce civilian law by authority of the Constitution or act of Congress.  Also, the Coast Guard and the rest of DHS are exempt from this act.

As to whether it's Constitutional or not, I will leave that to the experts.

No doubt about that.

But what about people not involved in the insurrection but who are in the general area?

Well said.  

My state has a section in the constitution saying habeus corpus shall not be suspended.  There are no exceptions it just stops at that.  I would assume that whatever entity outside of my State that came in would not have the legal authority to suspend. That all being said I find these matters trivial, because while its significant to discuss AFTER the fact, during the process of it its really just dog eat dog.

When it comes to pointing guns at each other, the gun makes the law.

My understanding is the military has huge powers during times of war and insurrection.

However, I do not have a handle on how that extends to ordinary citizens not engaging in insurrection but who might be in the same area as the rebels are in?

Can the military/government say, "all of you in this area, must turn in your guns"?

As some in the current administration are fond of quoting from Chairman Mao, "Political power comes largely from the barrel of a gun."

When civilian authority has broken down to the point that guys with guns are in charge, the words of the Constitution will have little effect.

What they can say, matters a hell of a lot less than what they actually say. Let me break it down Barney style: you forcefully resist troops trying to carry out what they consider a lawful order, you are not "an American exercising his rights", you ARE "that FUCKING ASSHOLE who just shot at them"–– and it's locate, close with and destroy time.

Yep. Once things get to that point, your individual rights are of little concern to the one who is calling the shots.

Even a broken clock will be right twice a day, political power DOES come from physical might. It maybe the might of a few in the case of an oligarchy, it might be the might of many in the case of a democracy.

Yeah, makes sense.

In an emergency what they actually say will carry the day.

Just curious how the powers of martial law go.  I never had a good handle on that area.

It's not so much that I would shoot back if I wasn't rebelling but I'd want to keep my firearms to protect us from the havoc going on around me.

Your rights are bigger than the Constitution; the Constitution only enumerates them. Therefore the Constitution cannot ever provide for a suspension of rights; it's not in its power to do so.

Your rights cannot be suspended, only infringed. Martial law suspension of your rights is invalid. It just means that the government has decided to not be held accountable for violating your rights (sort of like it does all the time on a smaller scale).

What that means in a practical sense, though, is something else altogether.

Your rights are most valuable to protect you from the government not when times are good and it's easy, but when times are difficult.  If your rights can be "suspended" whenever the government is having a hard time, I would argue that those "rights" weren't really rights to begin with.

Good post.

That is a good point.  I can't deny that.

Read this:

http://en.wikipedia.org/wiki/Posse_Comitatus_Act

Yes. Its been recognized since Roman Times and by most western countries. It is formalized in some of their constitutions (Italy has the Albertine statutes, Britain has Defense of the Realm Act, Article 1 of the U.S. Constitution allows suspension of habaes corpus in times rebellion or insurrection),. You see it in the U.S. in the form of executive orders (war and emergency powers acts). Its name in the more common form is 'state of emergency' or 'executive privilege'. More recently its been called a 'state of exception'.

Its based on the concepts of 'Auctoritas' and 'Potestas' in Latin. It Roman Times auctoirtas refered to the authority of the senate and potestas referred to the power or the head of the state (imperium/ magistrate/ emperor). During normal times their powers, as a republic,  were more or less co-equal and separate, but during emergencies (such as the sackings of Rome or the slave rebellions for example) it was recognized that there was a need to act in a more expedient way than going  through the normal legislative process. The imperium would assume all extra-legal authority to act in the preservation of the state in the form of a dictator. Julius Caesar assumed authority under declaration of a state of emergency, known as the auctoritas principis (the supreme moral authority/ first citizen), to become dictator. His sucessor claimed the same right.

In more recent times Hitler used the Reichstag fire to assume extra-legal authority (Article 48 of the Weimar Constitution; Article 68 of the Bismarkian constitution)**.  It can be said Washington exercised it suppress the insurrection in the Wiskey Rebellion, Lincoln suspended habeas corpus and imposed censorship on the mail and authorized the arrest and detention in military prisons of persons suspected of “ disloyal and treasonable practices” in 1862** , Wilson persuaded Congress to pass the Espionage Act of 1917 and the Overman Act of 1918 to grant him extrordinary powers of government in a state of emergency**. FDR's national recovery act granted him extrodinary powers to "regulate and control every aspect of economic life" to address the Great Depression. There was that internment of Japanese-American thing as well.


**info pulled from 'State of Exception' by Giorgio Agamben. I took notes.

More interesting info:

national emergency powers

Rebellion and insurrection.

I'll leave this here and ya'll can draw your own conclusions with regard the the OP's question.
I will say that if they(Govt and .mil) would do this to their own, they would do it to rest of us
with no problem....


bonus army riot  

"Thank goodness you guys are here, some lunatic just broke in and stole my guns! He was spouting some nonsense about 'inalienable rights.' He looked just like Guy Fawkes. If you hurry you might be able to catch him, he went that way."

Which would include everyone not putting down the insurrection ie. every citizen not in uniform will be categorized as an insurrectionist.

Since when does an act of Congress trump the Constitution and rights enumerated therein?

You may be right that there is narrow authority to use the military to "suppress insurrections," but citing a statute that is facially at odds with a superior instrument isn't a good argument.

When Martial Law occurs, more than likely the people in the suburbs will be the first to have their doors kicked-in.



The Ghetto people will shoot back; this is an area to avoid for the people doing the gun-roundup.


 

Thank you Mr Lincoln

Like the "Patriot Act"

Well you should thank the Founding Fathers.  Art 1, Sec 9 of the Constitution authorizes the action.  Good discussion here.

http://www.usconstitution.net/consttop_mlaw.html

It does not trump the Constitution.  That Act was written with the Constitution as a guide to ensure that it was not straying from the powers granted to the Executive Branch and Congress.
It was challenged and upheld by the Supreme Court.

It IS in keeping with the Constitution.....at least it is according to the Constitution.

1. Read my edit that I added.

2. Cite the "numerous" cases that have addressed and upheld the Act. Lexis does not reveal "numerous" cases on this law.

Thank the Founding Fathers and the Framers.

I'm aware of the law and also aware Lincoln's actions were found UnConstitutuonal in the end run. BUT Deemed necessary to save the Nation.

MY Fear is these same laws being used to justify to our troops the same actions today should We the People decide a certain POTUS should
suspend the elections or refuse to leave office or other such nonsense and is able to call it a National Emergency..
personally should 51 percent allow the current administration continue it's march towards the end of the cliff that the other 49% is going to have to revolt!
"to Save the Nation"
Unfortunatly I see the "I'll follow orders" in many of our current active duty types. that is what frightens me..they'll follow orders but, agree with the revolution..
makes no sense..

Can you tell us where in the constitution such powers are granted?

Here's two:

In re Debs, 158 U.S. 564 (1895)

Martin v. Mott   25 U.S. 19 (1827)


There are more.

Article 1, Section 9 clearly states, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

It is not that narrow an authority:

Article 1, Section 9 : "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

10 USC Chapter 15 spells it out.

Question....

Do you believe that rights are granted by the Constitution, or do you believe that our rights are natural rights that are bestowed on us by our Creator (or a result of our human condition, depending on your religious beliefs)?

I think that the way you answer that question is indicative of whether you think it is OK for the government to trample our rights whenever it sees fit.

Everyone knows that the Constitution ENUMERATES some of our "rights," but that these rights are "granted" by our Creator.  

It begs the question...can our Creator trample our rights?  Can we appeal Damnation or punishments such as a Plague of Locusts?

So once again, you rely on a mere statute to expansively define a narrow enumerated constitutional provision.

Yeah, that's kind of how the whole "Law" thing works.

Did you think that after the Constitution was drafted that they would put away the Quill Pens?

That means that the government can suspend your going to court and just keep you in jail indefinitely, not that they can execute you with out a trial. I see nothing in the constitution that gives the president power to execute anyone without a trial. Also no other rights are changed you still have the right to have and bear arms, the right to speech the right to religion, etc., just not a speedy trial.

Who said anything about "execution"?

When Americans have been killed by Federal Forces during the fighting of insurrection, they were not "executed."  
Executions are part of a civil process or military tribunal.

Rebels killed in battle need not be indicted and tried first.

Do you believe that at the onset of the Federal Government's efforts to put down a rebellion, that they must first indict and try each rebel and sentence them to death before any battles ensue?

Of course not.

The law is solid and it is Constitutional because it has been challenged and upheld.  It has been applied many times since our Founding.

You might not like it, but it is what it is.

I'm no expert but have read the constitution a few times and some court cases that, a couple of which, you cited.

I think as people read more on this subject it will become apparent that the military can be used to stop rebellions and insurrections AND their involvement in that is constitutional.

My question to you, although subjective, was to get your opinion on what the military would do to a, let's say, specific region where rebellion is occurring?

By that I mean, will the rest of us non-rebellious people be, in essence, disarmed and "quarantined"?

Also, would the 3rd amendment be "postponed" in this type of scenario?

Insurgencies are rarely fun for the non-participating civilian population.