"Recall the Militia" reference.

[madmike]

Once when I was on active duty, I saw, read with interest, and noted something to the following effect:

That if SHTF while I was on leave, I was to report back to my unit, or

To the nearest active duty installation, of mine or another branch, or

The nearest Guard or Reserve unit, of mine or another branch, or

The nearest recruiting or MEPS station, or

The nearest US Post Office, where personnel on leave, retired officers, IRR members would form a unit, and "recall the militia to active duty."

It was eminently sensible, and yet another nail in the coffin of the theory that the National Guard is the Militia.

I cannot for the life of me find it in current Army Regs, AF Instructions or USC.

Anyone remember this or have any ideas?

 

[S.P.E.C.T.R.E.]

I'd be very interested to see an original source as well. However, almost everyone realizes that the National Guard isn't the militia, it's just a convenient lie concocted by the anti-gun juggernaut.

Doesn't the National Guard answer to the Federal Governement anyway?

 

[Jeff White]

The militia as defined in the militia act of 1792 and further laws answers to the government too. A state militia can be ordered into federal service.

The militia is part of the government. The laws establishing a militia really just provide a means for conscription in an emergency.

I don't think anyone except for the antis believes the National Guard is the militia although by some state laws it is the organized militia.

Jeff

 

[another okie]

According to federal law, the national guard is the organized portion of the militia. The rest of us are the unorganized portion of the militia.

Title 10, United States Code, 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.

 

[legaleagle_45]

According to federal law, the national guard is the organized portion of the militia. The rest of us are the unorganized portion of the militia.

You are forgetting 32 USC 109(c)... without which, the whole National Guard set up would be unconstitutional. (Which it may be anyway).

 

[AZAndy]

Ya know, all this talk about what the word "militia" meant to the people who wrote the Bill of Rights makes me a little nervous. I'm 51 years old. Does that mean I shouldn't have guns anymore? That would really harsh my mellow. I'm all for fairly strict interpretation of the Constitution, but not when it doesn't go my way.

 

[legaleagle_45]

I'm 51 years old. Does that mean I shouldn't have guns anymore?

You must now turn all your guns over to me. See 18 USC 1282 (i).

Actually, the approach you suggest is based upon a variation of the "sophisticated collective right" model of the 2nd Amend. Under the individual rights model you have to hand them over to my wife.

 

[DoubleTapDrew]

I'm 51 years old. Does that mean I shouldn't have guns anymore?

You can still have them. It just means you don't have to fight if you don't feel like it, although a lot of the 45+ year olds I know can usually outshoot the younger whipper-snappers

 

[mek42]

That Title 10 excerpt was helpful.

So, 2A probably should mean something like, "We (we being the gov't here) want to be able to have an effective population from which to draft from if needed, so we should let everybody be armed so that if we ever do need to draft we can train the draftees faster and get them to the front as quickly as possible."?

 

[Ieyasu]

Howdy Legal!

You are forgetting 32 USC 109(c)...

And yet 109(d) says:

A member of a defense force established under subsection (c) is not, because of that membership, exempt from service in the armed forces.

Doesn't that mean individual members of state defense-forces can be inducted?

And regardless of that provision why do you feel the NG system may be unconstitutional anyway?

 

[Elm Creek Smith]

Doesn't that mean individual members of state defense-forces can be inducted?

The militia of the State of Oklahoma includes those up to the age of 70. I don't think the government will induct old fogies. Me? I'm retired Army over the age of 55. I could end up as commander of the state guard.

ECS
CPT, AR
US Army(Ret.)

 

[legaleagle_45]

HI IEYASU!!!

And regardless of that provision why do you feel the NG system may be unconstitutional anyway?

First, it has nothing to do with Perpich, Uzi notwithstanding, LOL.

Second, it is something I am merely speculating on and have not really studied... but I think a viable argument might be made that the provision whereby the NG is included in the regular military chain of command might violate this portion of the Constitution:

reserving to the States respectively, the Appointment of the Officers..

The specific reasons for that clause and the background and the concerns which gave rise to that clause seem to me to indicate that the militia should be outside the regular command structure of the US armed forces. Recall, that there was some movement to have the clause read something like this:

reserving to the States respectively, the Appointment of the Officers below the rank of General...

and it was smacked down hard....

Caveat, the above is merely a half baked idea which I have not researched...

 

[Jeff White]

legaleagle_45 said;

Second, it is something I am merely speculating on and have not really studied... but I think a viable argument might be made that the provision whereby the NG is included in the regular military chain of command might violate this portion of the Constitution:

The National Guard is not in the chain of command unless it is federalized. The governor is the commander of the national guard in that state as long as it's operating under the provisions of Title 32 USC. When it is mobilized and inducted into federal service, it becomes part of the Army or Air Force under Title 10 USC.

Quote:
reserving to the States respectively, the Appointment of the Officers..

The specific reasons for that clause and the background and the concerns which gave rise to that clause seem to me to indicate that the militia should be outside the regular command structure of the US armed forces.

Officers are appointed by the governor. They hold a dual commission. A state commission and then they are federally recognized if they meet the educational and other requirements of the active component for the rank they are appointed to.

Everyone who enlists in the guard enlists as a member of that states national guard and a reserve of the Army or Air Force.

The National Guard is a nearly 100% federally funded force totally under control of the governor of the state it's in until it is mustered in active federal service.

It's totally constitutional, the laws were written and passed when congress actually cared if what they did was constitutional or not. See Title 10 and Title 32 USC.

Jeff

 

[legaleagle_45]

Jeff White wrote:

The National Guard is not in the chain of command unless it is federalized.

Obviously, you are more knowledgeable in this area than I, which is why I put whole bunches of weasel words such as "caveat", "might" and "half baked" in there. The idea was merely my musing while reading the debates on the Constitution in Philly, the debates in the various state ratifying conventions and the debates on Knox's militia plan submitted to the 1st Congress. The primary reason for looking at those material was 2nd Amend research and not to analyze the current NG. However, and with that said, the problem I mention still arises when the militia is federalized and perhaps espescially when federalized... The framers intended a seperate and independent military force to off set the federal armed forces. I see no constitutional problem with the "dual enlistment" provision so long as the NG remains outside of the regular command structure of the Armed Forces at all times. The appointment of officers was a big inducement which overcame many objections to federal involvement in the state militias and the power over them when federalized. However, and under current law, when the NG is federalized there are officers not appointed by any Governor who are actually in charge of the NG.

It's totally constitutional, the laws were written and passed when congress actually cared if what they did was constitutional or not. See Title 10 and Title 32 USC.

The placement of the NG within the regular command structure of the US armed forces occured in the 1950's I think.. (another weasel word because I am not positive).... either then or with the Passage of the Dick Act following the Spanish American War... or the amendments thereto that occured immediatly before WWI (1916?) or in the aftermath thereof ....

 

[Jeff White]

Obviously, you are more knowledgeable in this area than I, which is why I put whole bunches of weasel words such as "caveat", "might" and "half baked" in there.

I spent 20 years of my 28 year 11 month active duty career in the Active Guard Reserve Program as a trainer for Infantry and Artillery units. I had to deal with these issues when it came to state active duty call ups and sending Guardsmen overseas.

The framers intended a seperate and independent military force to off set the federal armed forces. I see no constitutional problem with the "dual enlistment" provision so long as the NG remains outside of the regular command structure of the Armed Forces at all times. The appointment of officers was a big inducement which overcame many objections to federal involvement in the state militias and the power over them when federalized. However, and under current law, when the NG is federalized there are officers not appointed by any Governor who are actually in charge of the NG.

I don't believe they did. The Militia Act of 1792 and the subsequent legislation always placed the state militias subordinate to the regular Army and gave the president the power to call the militia into federal service. It's a myth that the militia was ever meant to be any check on the federal government. Many of the same men who wrote the constitution, wrote and passed the militia act of 1792. Somewhere in the archives here is a long thread discussing the militia where I posted the various laws from the formation of the country to the present.

The states are still free to form their own militias. State defense forces are the modern equivalent. The reason those programs aren't bigger in the states that have them is because the states pay 100% of the cost of them.

Jeff

 

[ctdonath]

all this talk about what the word "militia" meant to the people who wrote the Bill of Rights makes me a little nervous. I'm 51 years old. Does that mean I shouldn't have guns anymore?

That's why the 2nd Amendment says "...the right of THE PEOPLE...", not "...the right of THE MILITIA...". The first clause ("well-regulated militia") plainly refers to a subset of the second clause ("the people"). The Constitution does NOT define the militia per se - it grants Congress the power to do so, drawing those obligated to serve from an armed general populace (which, BTW, may be the only ones left to defend the town after "the militia" has left to fight elsewhere).

Some court case (don't recall offhand) clarified that the National Guard is part of the standing army, which is Constitutionally separate from the militia per se.

Anyone contending "you're not part of the militia, therefore you can't have guns" is aiding & abetting our enemies. Why do they choose that course?

 

[Ieyasu]

I don't think anyone except for the antis believes the National Guard is the militia although by some state laws it is the organized militia.

Jeff, based on your subsequent comments, why do you appear to disagree that the NG, when not in the service of the federal government, is a part of a well-regulated militia. Can you clarify?

 

[Ieyasu]

Some court case (don't recall offhand) clarified that the National Guard is part of the standing army, which is Constitutionally separate from the militia per se.

Not quite. Perpich v. US DOD http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=496&invol=334 held that the NG when in the service of the states is a militia, but becomes a part of the armed services when called into federal service. Enrolled members wear two-hats. Also, as other posters have noted, the U.S. code states the NG is a part of the militia.

Also see U.S. v Maryland: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=41

The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution.

 

[Ieyasu]

Legal,

Interesting thoughts. I'll get back to you on those, but JW has supplied some food for thought and my two brain cells working in parallel probably can't handle two separate trains of thought at the moment.

 

[Jeff White]

The law divides the militia into the organized militia and the unorganized militia. The National Guard is the organized militia by statute. And all able bodied men under 45 with a few exceptions are the unorganized militia. But the antis stop reading the law after the National Guard.

Jeff

 

[Ieyasu]

It's a myth that the militia was ever meant to be any check on the federal government.

When Congress was considering its first mlitia act, Congressman James Jackson (Georgia) commented on his vision of a militia:

"In a Republic every man ought to be a soldier, and prepared to resist tyranny and usurpation, as well as invasion, and to prevent the greatest of all evils--a standing army."
---"The Debates and Proceedings in the Congress of the United States," Gales and Seaton, pub., 1834 (http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=002/llac002.db&recNum=288)

Then of course there is Justice Story, "The importance of this article [the Second Amendment] will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers."

However, that being said, I don't necessarily disagree with other statements you've made concerning the relationship between the militia and the armed services.

 

[Ieyasu]

The law divides the militia into the organized militia and the unorganized militia. The National Guard is the organized militia by statute. And all able bodied men under 45 with a few exceptions are the unorganized militia. But the antis stop reading the law after the National Guard.

Fair enough. So we seem to be in agreement that the NG when not in the service of the national government is a part of the militia, right?

 

[Jeff White]

Fair enough. So we seem to be in agreement that the NG when not in the service of the national government is a part of the militia, right?

Yes there was never any doubt on my part.

When Congress was considering its first mlitia act, Congressman James Jackson (Georgia) commented on his vision of a militia:
Quote:
"In a Republic every man ought to be a soldier, and prepared to resist tyranny and usurpation, as well as invasion, and to prevent the greatest of all evils--a standing army."
---"The Debates and Proceedings in the Congress of the United States," Gales and Seaton, pub., 1834 (http://memory.loc.gov/cgi-bin/ampage....db&recNum=288)

But that was only in the debate. The Militia Act of 1792 did in fact give the President the power to call the militias into federal service. After the Militia Act of 1792 was passed, the militia's became a part of the Army. Conceivably, in the case of a governor using the militia to rebel against the federal government, the president could order them into federal service to arrest the governor. A modern example was when the Gov of Arkansas used the Guard to stop desegregation of the university, and President Eisenhower ordered the guard into federal service and used them along with active Army troops to enforce desegregation.

Washington used militia troops to put down the Whiskey Rebellion. Lincoln calling the militias of some of the border states into federal service was one of the issues that helped some state legislatures vote to secede from the Union.

Jeff

 

[ilbob]

A large part of the militia ideas was the distrust virtually all the founding fathers had of standing armies. Much better they thought that you have half trained militias that were more or less organized but could be called up fairly quickly rather then having to keep a large standing regular army.

The idea worked pretty well sometimes, and sometimes was a big mess. Overall, IMO, it worked pretty well.

I am pretty much convinced that the size of our current standing army (especially including the huge contingent of LE at all levels of government) would make the founders cringe.

 

[Ieyasu]

Yes there was never any doubt on my part.

Well, well. That is the first time I've been on THR, debating/discussing this topic, where a poster has acknowledged such. Hooray!

The Militia Act of 1792 did in fact give the President the power to call the militias into federal service.

Actually, Art 1 sec 8 of the Constitution did that. But we agree the federal government has the power to call the militias into federal service.

After the Militia Act of 1792 was passed, the militia's became a part of the Army.

The Army is separate from the militia. The Armed Services can be sent overseas. The militia cannot. The militia, when called, is a fighting force, but only for the following purposes, as specified in Art 1, sec 8 from our Constitution:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Constitutionally the militia cannot be sent to war overseas.

Conceivably, in the case of a governor using the militia to rebel against the federal government, the president could order them into federal service to arrest the governor.

Yes of course. Again we agree. However, I think you have confused the difference between a rebellion by citizens and an usurpation of power by the government.

Please re-read Supreme Court Justice Joseph Story's quote (who was a contemporary of the Founders and appointed to the Court by Madison):

The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers."

Thus, you are right, and I agree, George Washington ordered the militia to supress an insurrection. However, "[t]he Governors of Virginia and Pennsylvania were ready to call out the militia if the Federalists in Congress usurped the election of 1800 and blocked the selection of Thomas Jefferson or Aaron Burr as president." ( http://www.guncite.com/journals/lp-gwords.html#fn338 )

The fact that the militia can be called out to either suppress insurrections or act as the check of last resort against an usurpation is by no means contradictory. I'm sure you see the difference now, between an insurrection by citizens against a constitutionally elected government, and an usurpation of power by the government, right?