Thursday, June 21, 2012

Still more on the Unorganised Militia

The fact that this is a subject for discussion demonstrates how obsolete and irrelevant the Second Amendment is to modern US society.-

First off, the term unorganised means not organised, which should clue in someone with half a brain that it might be a ridiculous proposition to say it confers any rights and privileges--even without a knowledge of military history (in particular that relating to the National Guard/Militia) or law.

Let's take Joseph Story comment about the dislike for militia discipline in his 1833 Commentaries on the Constitution (3:§ 1890) :
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
While I sometime think that a trained chimp could practise law, it becomes quite obvious that it does require some skill. In the same way you couldn't pick up the great highland bagpipe and start playing "Scotland the Brave" or some reel, you cannot just pick up a legal document and understand what is going on.

In this case, people glom on to 10 USC 311 (2) about the "unorganised militia", but that is sometimes glossed with this statement: "that is, anyone who would be eligible for a draft"

The next course in legal research is to see how the topic is addressed in other law if there isn't an explanatory notation.

Ala. Code § 31-2-5:
The unorganized militia shall consist of all able-bodied male resident citizens of the state and all able-bodied resident males who have declared their intention to become citizens of the United States, between the ages of 17 and 45, and of such other persons, male and female, as may, upon their own application, be enlisted or commissioned therein, subject to any existing law, who are not serving in any force of the organized militia and who are not on the state retired list.
(Acts 1957, No. 592, p. 829, §3; Acts 1973, No. 1038, p. 1572, §5.)

Ala. Code § 31-2-48: Manner of Ordering out Unorganized Militia; Organization; Appointment of Officers.
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.
Ala. Code § 31-2-49: Draft of Unorganized Militia.
If the unorganized militia is ordered out by draft, the Governor shall designate the persons in each county or city who are to make the draft and prescribe rules and regulations for conducting the same, which shall conform as nearly as possible to the selective service machinery that is now or may hereafter be provided for by the government of the United States in a national crisis.

N.Y. MIL. LAW § 7 : NY Code - Section 7: Draft of unorganized militia
1. Whenever it shall be necessary

in case of invasion, disaster, insurrection, riot, breach of the peace
or imminent danger thereof or to maintain the organized militia or any force thereof at the number required for public safety or prescribed by the laws of the United States, the governor may call for and accept from the unorganized militia as many volunteers as are required for service in the organized militia or he may direct the members of the unorganized militia or such of them as may be necessary to be drafted into the organized militia or any force thereof.
2. Whenever it shall be necessary in case of invasion, disaster, insurrection, riot, breach of the peace, or imminent danger thereof, the governor many direct the members of the unorganized militia or such of them as may be necessary to be drafted under such regulations as he may prescribe into the active service of the state, to serve as directed by
Indiana: IC 10-16-6-2
Classes of militia
Sec. 2. 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.
Ma.Gen.Laws § 33-3 Organized and Unorganized Militia
Section 3. The militia shall consist of two classes, namely, the organized militia, composed and organized as provided in this chapter, and the remainder, to be known as the unorganized militia. The unorganized militia shall not be subject to duty except in case of war, actual or threatened, invasion, the prevention of invasion, the suppression of riots, and the assisting of civil officers in the execution of the laws.
Ma.Gen.Laws § 33-55 Unorganized Militia; Method of Impressing into Service
When necessary to call out any part of the unorganized militia for duty, the commander-in-chief shall issue a proclamation directed to the mayors or city managers and selectmen, who shall forthwith, by written order or oral notice to each individual, or by proclamation on their part, appoint a time and place for the assembling of the unorganized militia in their respective cities and towns, and shall then and there draft as many thereof, or accept as many volunteers, as are required by the order of the commander-in-chief, and shall forthwith forward to him a list of the persons so drafted or accepted as volunteers.
Unorganized Militia; Power of the Governor - Mich. Comp. Laws Section 32.555
32.555 Unorganized militia; power of the governor.
Sec. 155.

The governor may order into the defense force any members of the unorganized militia in case of riot, tumult, breach of the peace, resistance of process, or for service in aid of civil authority, whether state or federal, or in time of public danger, disaster, crisis, catastrophe or other public emergency within this state.

History: 1967, Act 150, Imd. Eff. June 30, 1967
Section: Previous 32.523 32.525 32.527 32.529 32.531 32.533 32.551 32.555 32.559 32.563 32.567 32.571 32.575 32.579 32.581 Next
Last modified: February 20, 2012
For a survey of this topic see:

But, the state laws show that the Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia is exactly what I say it is--a draft pool used to supplement the organised militia.

We can then go to case law to see how the courts have addressed this concept:

U.S. v. Warin, 530 F.2d 103 (6th Cir.)
The fact that the defendant Warin, in common with all adult residents and citizens of Ohio, is subject to enrollment in the militia of the State confers upon him no right to possess the submachine gun in question. By statute the State of Ohio exempts "members of ... the organized militia of this or any other state, ..." (emphasis added) from the provision, "No person shall knowingly acquire, have, carry, or use any dangerous ordnance." Ohio Revised Code § 2923.17. "Dangerous ordnance" is defined to include any automatic firearm. O.R.C. § 2923.11. There is no such exemption for members of the "sedentary militia." Furthermore, there is absolutely no evidence that a submachine gun in the hands of an individual "sedentary militia" member would have any, much less a "reasonable relationship to the preservation or efficiency of a well regulated militia." Miller, supra, 307 U.S. at 178, 59 S.Ct. at 818. Thus we conclude that the defendant has no private right to keep and bear arms under the Second Amendment which would (p.107)bar his prosecution and conviction for violating 26 U.S.C. § 5861(d).

United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977)
7...However, as in his search and seizure argument, appellant attempts to avoid the seemingly dispositive nature of the case law by arguing a factual distinction. He contends that, even if the second amendment is construed to guarantee the right to bear arms only to an organized militia, he comes within the scope of the amendment. He points out that under Kans.Const. art. VIII, § 1, the state militia includes all "able-bodied male citizens between the ages of twenty-one and forty-five years . . . ." He further points out that he is a member of "Posse Comitatus, a militia-type organization registered with the state of Kansas."

8. The purpose of the second amendment as stated by the Supreme Court in United States v. Miller, supra at 178, 59 S.Ct. 816, was to preserve the effectiveness and assure the continuation of the state militia. The Court stated that the amendment must be interpreted and applied with that purpose in view. Id. To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. This lack of justification is even more apparent when applied to appellant's membership in "Posse Comitatus," an apparently nongovernmental organization. We conclude, therefore, that this prosecution did not violate the second amendment.
US v. Rybar, 103 F.3d 273 (3d Cir. 1996),
Rybar's invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to "the preservation or efficiency of a well regulated militia," as required in Miller, 307 U.S. at 178, 59 S.Ct. at 818. Nor can claimed membership in a hypothetical or "sedentary" militia suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976).
United States v. Hale, 978 F.2d 1016, 1020 (8th Cir.1992)
Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103.
I repeat, legally, the fact that one is a member of the Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia confers no rights or privileges.
This is why revisionist Second Amendment jurisprudence tries to remove the language:
A well regulated militia being necessary to the security of a free state,
from the process.

The Second Amendment is irrelevant to modern society ff one sees that the right to keep and bear arms is related to service in a well-regulated militia (that is the body established under Article I, Section 8, Clause 16, and no other purpose, since no other purpose is explicitly mentioned in that text. Unless, it can be shown that there is "some reasonable relationship to the preservation or efficiency of a well regulated militia", the Second Amendment is irrelevant to the issue.

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