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:

• Table of Selected State Militia Laws

Meet Presser v. Illinois, 116 U.S. 252 (1886)

I am amazed at how much the Second Amendment debate is held in ignorance: in particular, this case should be front and centre.

I should add that as long as the "civic right" interpretation of the Second Amendment is out there, this is still a valid case.  In fact, while the Heller-McDonald line of cases said this may no longer be applicable, the fact that the court said that "to drill or parade with arms, without, and independent of, an act of Congress or law of the State authorizing the same" would relate to public order means that this is a very relevant case to a world where people want to openly carry arms in public.

Facts:

Herman Presser was part of a citizen militia group, the Lehr und Wehr Verein (Instruct and Defend Association), a group of armed ethnic German workers, associated with the Socialist Labor Party. The group had been formed to counter the armed private armies of companies in Chicago.

The indictment charged in substance that Presser, on September 24, 1879, in the county of Cook, in the State of Illinois, "did unlawfully belong to, and did parade and drill in the city of Chicago with an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license from the Governor, and not being a part of, or belonging to, 'the regular organized volunteer militia' of the State of Illinois, or the troops of the United States." A motion to quash the indictment was overruled. Presser then pleaded not guilty, and both parties having waived a jury the case was tried by the court, which found Presser guilty and sentenced him to pay a fine of $10.

In December 1879, marched at the head of said company, about four hundred in number, in the streets of the city of Chicago, he riding on horseback and in command; that the company was armed with rifles and Presser with a cavalry sword; that the company had no license from the governor of Illinois to drill or parade as a part of the militia of the State, and was not a part of the regular organized militia of the State, nor a part of troops of the United States, and had no organization under the militia law of the United States.

Presser claimed the law violated his rights under the Second Amendment.

Holding: 

"Unless restrained by their own constitutions, state legislatures may enact statutes to control and regulate all organizations, drilling, and parading of military bodies and associations except those which are authorized by the militia laws of the United States."

The Presser Court said:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

The Court emphatically disposed of Presser's argument that there exists a right to assemble, drill, or march in a militia independent of authorization by state or federal law:

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 word, as I have been saying all along, you do not belong to a "Constitutional Militia"  unless you belong to an actual serving organisation which is organised under Article I, Section 8, Clauses 15 & 16 of the United States Constitution.  As per Article VI, Clause 2 of the United States Constitution, that body is the National Guard: whether you like it or not.

In fact, reading Presser, it's pretty clear that the "unorganised militia" argument is seriously nonsensical from a legal point standpoint.  There is no basis for claiming that a reserve pool with no obligation of service (hence Unorganised, Sedentary, reserve, inactive,  general or other term indicating INACTIVITY Militia) has any "right" to arms.

This is especially true if your unit was not created by act of congress and under some form of governmental control.

I would also add that local governments are probably on good ground in strictly regulating open carry rallies by combining this case with the comment in Heller that:

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).

Additionally, as I pointed out before the First Amendment protect peaceable assembly.  Any armed group is not "peaceable" in any realistic sense of that word.

Why do people keep trying to say being a part of the "unorganised militia" gives them any sort of "right"?

Come on, people, how seriously stupid are you?  I mean it shouldn't take too much brainpower on your part to figure out if something ISN'T ORGANISED that it might not be very useful.

Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia, has always been unorganized and untrained and being a part of that body gives you fuck all in terms of a "right".

Seriously, is that too hard a concept for you people to come to grips with, or is it because your IQ is below normal that you figure you must be "normal" in some way?

And while you have glommed on to 10 USC §311(b)(2) because it say you are part of some sort of militia, you haven't grasped that the actual implementation of that law is found in the various state call out provisions.

Here are some examples:
New York:

New York Military - Article 1 - § 6-A Organizations and Volunteers From the Unorganized Militia:
§ 6-a. Organizations and volunteers from the unorganized militia. To the extent permitted by the constitution of the United States, the governor may, at any time, order, authorize or recognize such organizations of the unorganized militia, or of designated classes thereof, or of volunteers therefrom, as he may deem to be for the public interest, and may prescribe therefor such parts of the regulations governing the organized militia as may be applicable thereto or establish such regulations therefor, or both, as he may deem proper. The governor may, at any time, provide for the separate organization, or authorize the enlistment in organizations of the unorganized militia, of persons volunteering for such service, not otherwise subject to military duty under section two of this chapter.

In short, the unorganised militia is just that, unorganised.  It is an inactive component of the militia--its role is to provide manpower should the militia not have enough members, or need to replenish its strength.

It is the equivalent of saying that being subject to the draft makes one a member of the serving military.

Then again, you lot seem to think Ted Nugent is some form of super patriot, which might explain why you belive the sort of bullshit that being a part of the "unorganised militia" makes you anything other than a fool when you try to say that you are actually a serving member of any serious military force.

or claim any military duties, obligations, or rights based upon that status.

The militia of the state shall be divided into the organized militia, the retired list and the unorganized militia, which together shall constitute the state military forces. The organized militia shall be composed of: an army national guard and an air national guard which forces, together with an inactive national guard, shall comprise the Alabama National Guard; the Alabama Naval Militia; and the Alabama State Guard, whenever any such force is organized by the Governor pursuant to existing laws. The National Guard, army or air, shall consist of such organizations and units as the commander in chief may from time to time authorize to be formed, all to be organized in accordance with the laws of the United States affecting the National Guard, army and air, and the regulations issued by the appropriate Secretary of the Department of Defense. - See more at: http://codes.lp.findlaw.com/alcode/31/2/31-2-3#sthash.2hhEPhwG.dpuf

The militia of the state shall be divided into the organized militia, the retired list and the unorganized militia, which together shall constitute the state military forces. The organized militia shall be composed of: an army national guard and an air national guard which forces, together with an inactive national guard, shall comprise the Alabama National Guard; the Alabama Naval Militia; and the Alabama State Guard, whenever any such force is organized by the Governor pursuant to existing laws. The National Guard, army or air, shall consist of such organizations and units as the commander in chief may from time to time authorize to be formed, all to be organized in accordance with the laws of the United States affecting the National Guard, army and air, and the regulations issued by the appropriate Secretary of the Department of Defense. - See more at: http://codes.lp.findlaw.com/alcode/31/2/31-2-3#sthash.2hhEPhwG.dpuf

Good guys with guns or.....

You make the call.