Sunday, September 21, 2014

Are you really a constitutional militia?

This is how it works.

The Militia Clauses of the US Constitution provide the legal basis for "the militia" under the US Constitution.  They are Article I, Section 8, Clauses 15 & 16:
  • 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;
I know that people like to cite to 10 U.S.C. §311 (b)(2) and say they are part of something called the "unorganised militia".  This is in spite of the fact that the term "unorganised militia" should clue them in that it might not confer any privilege.  In fact, that is downright ignorant as Article I, Section 8, Clause 16 specifically mentions "organizing".

As has been pointed out, the concept of a militia is that it is somehow a "universal" military force, although even 10 U.S.C. §311 points out the exceptions to militia duty mentioned in 10 U.S.C. §313.  There have always been people who have been exempt.

We have often seen the following quote taken out of context:
Mr. GEORGE MASON. Mr. Chairman, a worthy member has asked who are the militia , if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered.
This quote may be far more prescient than the people who like to misrepresent it care to think, since the militia has indeed become a "select" one.  If it wasn't one at the time the Constitution was written or even before.  As I have mentioned before, Adam Smith wrote in his Wealth of Nations that militias were indeed obsolete in the age of specialisation.   But, 18th Century gentlemen liked to think they were free of standing armies.

That of course is a digression. Not too far off of one though since the Unorganised militia is something of a conceit to say that there is the possibility of universal militia service with the unorganised militia serving as a draft pool should the organised militia not have enough manpower.  For example,  Alabama Code - Section 31-2-48:
The Governor shall, when ordering out the unorganized militia, designate the number. He may order them out either by call for volunteers or draft. The unorganized militia may be attached to the several organizations of the National Guard or Naval Militia, or organized into separate divisions, brigades, regiments, battalions, companies or detachments as the Governor may deem best for service. He shall appoint the commissioned officers and warrant officers in the same manner as provided in this chapter for the appointment of officers and warrant officers of the National Guard and Naval Militia.
Indiana Code - Section 10-16-6-2: Classes of militia is more specific about how their unorganised or Sedentary militia is to be applied:
The militia shall be divided into two (2) classes, the sedentary militia and the national guard, as follows:
(1) The sedentary militia consists of all persons subject to bear arms under the Constitution of the State of Indiana who do not belong to the national guard.
(2) The national guard consists of those able-bodied citizens between the proper ages as established by this article who may be enrolled, organized, and mustered into the service of the state as provided in this article. The organized militia of the state constitutes and shall be known as the Indiana national guard.
As added by P.L.2-2003, SEC.7.

The law also makes it clear that:
(a) The Indiana national guard consists of those units:
(1) specified by:
(A) the Secretary of the Army; and
(B) the Secretary of the Air Force; and
(2) approved by the governor.
The Alabama law isn't as clear that one needs to actually be enrolled, but they are allocated as the governor deems them necessary.

As  Presser v. Illinois, 116 U.S. 252 (1886) pointed out:
It is plain from this statement of the substance of the Military Code that the two sections upon which the indictment against the plaintiff in error is based may be separated from the residue of the Code, and stand upon their own independent provisions. These sections might have been left out of the [116 U.S. 252, 264]   Military Code and put in an act by themselves, and the act thus constituted and the residue of the Military Code would have been coherent and sensible acts. If it be conceded that the entire Military Code, except these sections, is unconstitutional and invalid, for the reasons stated by the plaintiff in error, these sections are separable, and, put in an act by themselves, could not be considered as forbidden by the clauses of the constitution having reference to the militia, or to the clause forbidding the states, without the consent of congress, to keep troops in time of peace. There is no such connection between the sections which prohibit any body of men, other than the organized militia of the state and the troops of the United States, from associating as a military company and drilling with arms in any city or town of the state, and the sections which provide for the enrollment and organization of the state militia, as makes it impossible to declare one, without declaring both, invalid. ...

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265]   and towns unless authorized by law, do not infringe the right of the people to keep and bear arms...
The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.
In other words, you may want to believe that you are part of "the" militia, but unless you are actually enrolled in a legally created and sanctioned organisation under the laws of your jurisdiction--you ain't the militia.

See also:


  1. So in some states its a no-no to form as a private militia. However, Heller states that the Second Amendment is a personal right and not a collective one. One case was determined over a hundred years ago, the other, much more recently.
    So all I can say is Heller. I wonder if gun control advocates react the same way when hearing that name as the reaction to this name....

    1. It's amazing you gun loons quote the Constitution, but the courts didn't rule an individual right til the 21st century. You do not follow the centuries old interpretation of the Constitution. You had to wait over 250 years until a slanted court gave you the decision you wanted. And that decision is not even 10 years old yet. I wouldn't assume it will not be changed back when more moderate, rational judges sit on the court again.

    2. Actually Anon, I believe that this is part of a general widespread expansion of individual rights that has been going on for quite a while before Heller.
      Citizens were usually quite willing to do what the government asked since most assumed that they knew what was good for us. Then we started getting more instances where we learned the hard way that the government is run by people with vices, just like you and me. So citizens started demanding control measures to prevent the abuse of individual rights.
      Fortunately, some forward thinking people put those protections into law back at the literal beginning. Why are you so surprised that while expansion of rights protected by other Amendments like the 1st and the 4th wouldn't be followed by the protection of rights under the 2nd?
      This started before Heller. I believe Florida started the trend of states adopting shall issue permit laws back in 87. Keep in mind, that during this period, while most states in the union have become shall issue, I don't believe a single state has gone from shall issue back to may issue. Anybody know of one that I didn't notice changing?
      Keep in mind that Heller wont just "go away" once you get the "right" judges in place. I'm sure Laci can kick in on the details, but I believe it would need to climb the judicial ladder just as Heller did over a period of 8 years.
      Also keep in mind, that in those ten short years since Heller, there have been many changes in gun laws as a result of that decision.

    3. I agree it won't stand for long.

    4. There was no general public outcry. It was done by a minority of justices and was never put to a public vote, which I'm sure your side would lose if it had. The number of people who have died from gun shot has risen since these laws have come in to place. Just more proof that the more people who have and carry guns the more people die from gun shot.

    5. "It was done by a minority of justices and was never put to a public vote, which I'm sure your side would lose if it had. The number of people who have died from gun shot has risen since these laws have come in to place. Just more proof that the more people who have and carry guns the more people die from gun shot. "

      Are you the same Anon who has made the assertion that I'm needlessly fearful because violent crime has been declining nationwide for about twenty years or so? Which is it? I'm not understanding how it can be both.
      Of course, the argument could very rightly be made that a person's rights aren't something people should vote on. For example, should people be able to vote on a law that is in violation of the first amendment? I'm thinking not.
      And if you want to get picky, people vote on gun rights every year and at every election. Their elected representatives vote on gun legislation introduced and these representatives are either reelected or voted out of office based on how well they represent their constituents.
      Even the one state that had had no permit system, Illinois, went right to a shall issue system. And Illinois didn't just pass it on a 51% majority, it was passed by the General Assembly overriding the Governor's veto.
      Again, not a single state to my knowledge has gone from a shall issue permit system back to a may issue system. If I'm wrong, I'd love to learn about it.

    6. Typical SS has no clue what, or who he is talking to. Your belief is part of your gun loon, fear ridden, delusion.

    7. "Typical SS has no clue what, or who he is talking to."

      It's hard to keep track of anons here at times. You're right, I have no clue what or who you are. Since you choose to be anonymous, you will either have to enlighten us every time so that we know how awed we need to be that you're sharing your great wisdom. Or just get used to it. It's part of being anonymous.
      As I mentioned, the rate of homicide and other violent crime have been declining over a long period of time. One Anon has claimed in the past that this decline now makes armed self defense unnecessary. And you claim that gun deaths have constantly risen. You're either contradicting yourself or someone else.
      The number of gun deaths has risen, however the increase is mainly in the area of suicides. Something I have no interest in trying.

    8. Being anon does not excuse your outright lies and dishonesty, or are you only honest if you know a name of the comments you respond to? You do seem to have a certain response depending on who you are addressing. Just more proof of how dishonest you are.

    9. "Being anon does not excuse your outright lies and dishonesty, or are you only honest if you know a name of the comments you respond to? "

      Being Anon does however facilitate you not having to be accountable for your past comments. If I say something inaccurate, it can be cited, and then I have to answer for it. You however can easily avoid it. Yes, I did notice you didn't answer my question as to whether you made that statement. It wasn't a rhetorical question.
      You also have certain signature responses depending on you are talking to. That is why I mentioned that earlier comment. It sounded just like you.

    10. Now that you have made the same mistake multiple times, I call bullshit on you.

  2. No, It's pretty obvious that you didn't read the Heller Decision. It says nothing about private armies being a "right".

    As Justice Stevens pointed out in his dissent:

    "The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."

    So, saying the Second Amendment protects an "individual right" is a nebulous statement--what exactly is the scope of the right protected?

    Anyway, to have a private right to a personal army under the United States constitution would require an act of congress.

    Or, in the case of being authorised by the State, it could enact legislation which would allow for a private militia unit, but not an army (only the feds can have an army, see Article I, Section 8, Clause 12). But, there would still need to be legislation.

    Anyway, you seem to neglect that the right announced in Heller and McDonald is a very limited one which is that law abiding citizens can own handguns and use them in their homes. These decisions are actually much more favourable to those seeking to regulate guns than those wanting an expansive right to own weaponry.

    Here is the actual holding from Heller:

    In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

    You show a common mistake from those who are ignorant of what the actual decision really said:

    " Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Heller at 54-5

    Which has as a footnote (26):

    "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."

    I dislike the Heller decision because it flies in the face of the rule of law and violates the Constitution: on many different levels.

    But, I know that is a statement which is far above your paygrade.

    1. Heller's influence is increasing over time. Recent decisions have used Heller to extend the right of arms outside the home. It was cited in Moore vs. Madigan which brought permitted carry to the state of Illinois. It is also having an affect out west, with Peruta vs. San Diego County. Still haven't heard anything on a possible appeal for that one.
      And then of course, there is Palmer vs. DC. As for private militias, I'm not terribly concerned about them. If their goals or activities are illegal, eventually someone seems to report these illegal activities, and its taken care of.

    2. Not concerned about the illegal activities of illegal militias?
      Nothing less than an Okee Dokey for these killers to do what they want. You are truly more than a gun loon.

  3. The "militia" is the National Guard.

    These are the guys that have to leave home and family to fight for our nation. As we have just seen in the two latest, unjust wars.

    Militia = National Guard.

    Problem with that?

    1. Except that the national guard wasn't around when the militia idea was first formed. The national guard is fairly new concept in the grand scheme of things.

    2. Interesting history note fore you, Junior--the militia couldn't be sent overseas (or even over the border to Mexico), so when military adventurism was desired, a voluntary army had to be established.

      It was chafing against this speed bump that led those who wanted to engage in various wars to form the National Guard as a hybrid--a militia whose members were all, by law, required to join the Federal Army and thus be able to be ordered abroad in spite of that pesky Constitutional restriction.

      Got a problem with our wars? Advocate for the dissolution of the National Guard and a return to well regulated militias of the states--Same guys can form the cores of these militia units, but they won't be susceptible to federalization except to repel invasion or suppress insurrection.

      Feds can still prescribe the discipline, organization, and armament, as congress is authorized to do in the Constitution, to ensure that these units are still well trained in case they are needed to defend the country, or in case individual members volunteer to join the Army and fight in a war they perceive as just.

      Such adherence to the Constitution would also highlight the Constitutional problems with the draft--not just a matter of involuntary servitude, but a matter of, in effect, calling up members of what law defines as the "unorganized militia" and forcing them to fight abroad when a militia call up is not authorized to be used in such a way.