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Any precedent for militias owning banned weapons?

Discussion in 'Legal' started by p35bhp09, Mar 2, 2006.

  1. p35bhp09

    p35bhp09 Well-Known Member

    This is an unimportant question, just something I was wondering. Anti's continually say the second ammendment is not an individual right. If that's so, can a group of people get together, form a "well trained trained militia" and own banned weapons? If there is anything wrong with this question feel free to delete-moderators.
  2. k_semler

    k_semler member

    USC Title 10, Subtitle A, Part 1, Chapter 13, Section 311

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

    (b) The classes of the militia are -
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
  3. Maxwell

    Maxwell Well-Known Member

    The anti's current idea of militia (a volunteer army for emergencies, or one made up of the whole body of citizens) is a police force, national guard, and/or federal troops (paid and trained professionals).

    In which case... yes, they own a number of NFA banned weapons.

    By the Antis theory a group of militia can be formed and arm itself and everythings ok... until a group forms up and arms itself for something they dont agree with (Lets say right to lifers, fanatic cult members, or neo-nazis).

    I think the fuzzy grey line is this is that the group somehow have the states blessing or be into torching animal testing labs or something.

    As far as true militia in historical sense, they owned cannons and (if Im not mistaken) even warships. Stuff that was well beyond simple self defense weaponry.
  4. Jeff White

    Jeff White Moderator Staff Member

    The Militia is not a private army.

    From the first legislation after the revolution, (Militia Act of 1792) to today, the militia has always been part of the government. It has always been a force comprised of normal citizens who would be called into service by the elected government in times of crisis.

    The purpose of the militia is to provide the elected government with a ready force. Private armies are not allowed. See Presser v. Illinois. In Presser, the US Supreme Court essentially ruled that the second amendment said that the government couldn't prohibit the possession or bearing of arms, but it could regulate and outlaw private, unsanctioned military organizations. The case (from the 1870s) came out of an issue where Presser wanted to parade his unit through Chicago and the governor refused to permit it.

    The militia is not (and never has been) a check on elected political authority. It is a tool that is available to the elected political authority.

  5. Maxwell

    Maxwell Well-Known Member

    The Militia defined?

    A privately owned army is not allowed, but a militia is a volunteer army.
    Maybe nows the time for me to ask; If you and your buddies gather for war games on the weekend as an organized group, is that a militia or private army?

    So far as I understand this:
    Those who want to can gather on their own time (freedom of assembly anyway) and train on their own dime. They do not need the governments permission to form, do not need a uniform, but they do not have the authority to launch an attack on their own and should fall under the governments direction when called. The government also retains the right to disband a militia(?).

    Which leads me to ask if theres such a thing as a legitimate licensed milita still in existance?
  6. Hawkmoon

    Hawkmoon Well-Known Member

    A "licensed militia"? The Militia Act doesn't say anything about licenses.

    Jeff White, you raise some good points, but I think you are incorrect in concluding that the militia "is not (and never has been) a check on elected political authority." Remember that the original Militia Act was written at a time when Americans did not trust the national government to have standing armies. The militias (plural) fell under the purview of the states, and were available to the states to act as a check on the Federal government.

    That was, indeed, one of the cornerstones of the original concept of this country. The idea was to limit the power of the government by ensuring that the People had the guns, NOT the government.
  7. R.H. Lee

    R.H. Lee Well-Known Member

    How can 'ownership' of weapons be apportioned to a group? Is the group a legal entity such as a corporation, LLC, or government agency? For example, a police department can own weapons and will retain ownership no matter how much the personnel turn over. But a PD is a government agency with defined lawful powers, a continuing budget, and accountability.

    I guess it depends on what you define as a 'militia'. If it's just a bunch of loose knit people getting together without some formal organizational structure, then no, you probably can't have 'group' ownership.
  8. Jeff White

    Jeff White Moderator Staff Member

    The Militia Act of 1792 authorized the President of the United States to call out the militia.
  9. Jeff White

    Jeff White Moderator Staff Member

    The fact that the founders gave the president the power to call out the militia to suppress insurrections doesn't suggest to me that they thought of the militia as anything but a force that was available to the elected authority.

    The so-called modern militia movement has totally misread the history of the militia in the US. The militia has never in the history of the United States been a check on any political power.

    Maxwell said;
    In my opinion that would be a private army. The militia is part of the government and unless it is organized and sanctioned under the laws of the state and under the command of the elected government it would be a private army.

    More then half of the states have laws prohibiting private military or paramilitary training. There are provisions of the Patriot Act that would suggest that this could also be in violation of federal law.

    Militias aren't licensed. They are formed and organized according to law. They belong to the government. The law, both state and federal outlines how the militia is organized, how officers are appointed and who they answer too. It is a government organization. According to current federal law, the National Guard is the organized militia and all citizens who are not members of the regular armed forces or the National Guard between 17 and 45 are members of the unorganized militia. The unorganized militia is addressed at the state level by the various laws pertaining to how it's organized. Several states have state guard or defense units that exist and drill. Any other organization would be a private army.

    That pesky language about calling out the militia to suppress insurrections in all the laws from 1792 on certainly should put the popular notion expressed by many that the militia is a check on the elected government. they are there to suppress insurrection, not be the insurrection.

  10. Maxwell

    Maxwell Well-Known Member

    A private army would be if someone paid me and a bunch of people to fight.
    A militia is a volunteer group who chooses a leader, that then submits himself to the leadership of that state. So besides buying weapons and training, you cant march without the govenors say.

    If anyone who collects weapons and studies combat is a private army to be attacked by the patriot act...


    ...These terrorists better watch their step!

    Militias are temporary and sort of sound like a large social gun club by modern day standards. Its supposed to respond to a clear chain of command and be under the control of the state. Its not allowed a private agenda.
    Its still the armed and trained citizens who hold the threat of revolution over their government. The militia is just an avenue by which we can serve the elected government in times of crises.

    Sort of like the handle by which they can pickup a bag of scatterd toy soldiers and put them into play.

    Ok, my first attempt was a bit clumsy, Ill try rephrase it.
    If I should form a "militia" with my friends (in the consitutional sense, not NG and not a private army), exactly how does the state come to reckonize us as an official resource?

    Do we just slide our business card across the table at the govenor?
    "In emergencies dial 555-1234! have guns, will travel".

    It seems they know how to relate to other volunteer groups that build houses or feed the homeless, but do they still organize with groups that provide security?

    Attached Files:

  11. bogie

    bogie Well-Known Member

    Now, I may be a little slow, but I'm sort of wondering what a "banned" weapon is?
  12. Jeff White

    Jeff White Moderator Staff Member

    Maxwell said;
    No, there are laws that govern the militia who is in the militia, who can cal it up, how it is organized into units, how the leadership is selected. It is not a volunteer group that chooses it's own leaders. Most states have some form of a law like this one (from my state, Illinois):
  13. Jeff White

    Jeff White Moderator Staff Member

  14. Jeff White

    Jeff White Moderator Staff Member

  15. Jeff White

    Jeff White Moderator Staff Member

    As you can see, everything is already specified by law. Any military organization not covered by this law in Illinois would be considered a private army, not the militia. I think you'll find that most states have laws like this on the books, some of them dating back into the 1800s.

  16. Jeff White

    Jeff White Moderator Staff Member

    Maxwell said;
    I would suggest that you do what many of the officers in the state militias did before the passing of the Dick Act which was the beginnings of the National Guard as we know it today. Donate a lot of money to the party, become politically connected and pals with the governor or adjutant general of the state you live in.

  17. LoadAmmo

    LoadAmmo Well-Known Member

  18. Jeff White

    Jeff White Moderator Staff Member

    It depends on how the authorities look at a group of friends getting together, wearing camouflage and shooting guns. The right to peaceable assembly does not include gathering together as an unauthorized military unit and bearing arms.

    Most states have some form of this law:
    More then half of the states have legislation that was pushed by organizations like the Southern Poverty Law Center in the early 1980s during the big survivalist movement that prohibit paramilitary training and they are so poorly worded that you could twist almost any group shooting session to fit the definition of paramilitary training. I don't know that anyone has ever been prosecuted or even arrested for violating those laws, but they do exists. I do know that people have been prosecuted on the federal side for the violations of the Patriot Act provisions about providing training for terrorist organizations.

    Laws permitting the government to regulate military training were upheld by the United States Supreme Court in Presser V. Illinois in 1886. You have the right to assemble and you have the right to keep and bear arms, but combine the two and you could be in trouble.

  19. Graystar

    Graystar Well-Known Member

    The answer is no, there is absolutely no legally available recognition of any kind for a private militia as an organization. You would simply be a bunch of people.

    By definition, the militia is the fighting force of a state, and is under the control of the state. It is of the people and controlled by the people, and it exist to provide service for the people.

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