Right of Militia to keep and bear Arms?

[M1911Owner]

Just a perverse thought here, for the legal beagles on THR...

The "antis" take the position that, under the second amendment, only the militia has the right to keep and bear arms.

Following that argument to its logical conclusion, under federal law, most of us are members of the militia. (I'm over 45, so I'm not clear if I still qualify as a militia member.) Therefore, as members of the militia, we have have the right to keep and bear arms.

Are there provisions in the federal and Kali AWBs, and the NFA, that would allow militia members to have "assault weapons" and full-auto weapons? If so, does that right in practice actually flow to us?

 

[tyme]

That reasoning by the antis gets complicated very quickly.

In order to succeed, they have to argue that:

a) The 2nd Amendment applies only to the organized militia. Further, even though the National Guard is mostly federal, the NG is the organized militia. Otherwise, they're in trouble because there's not really any other militia-like entity to which they can point.

or

b) The 2nd Amendment is antiquated since the Government will never again need overthrowing, and because an armed citizenry wouldn't be much use against a foreign invasion, even if such an invasion were feasible. Therefore, the individual right portion of the 2nd amendment should be removed (or, more accurately, no longer exists) and judicial/legislative interpretation should ignore it.

But most often the antis avoid making any direct 2nd Amendment arguments. If the RKBA is brought up, they start screeching about US v Miller and how it clearly shows that the RKBA doesn't apply to the peasantry. I don't think there's much else to their argument, most of the time. It's all total crap. They appeal to others based on specters of blood running in schools, on playgrounds, in office buildings, and in the streets. "Tears are not arguments" -- Machado de Assis

The National Guard can dispense weapons as it sees fit. Those are national guard weapons, however, and generally cannot be possessed by individuals outside the scope of their service in the NG. There are some peculiarities; for instance, if I'm not mistaken, Cali police officers can have their duty assault rifles transferred to them upon retirement.

In general, there is no militia shield that makes militia members (i.e. members of the national guard or maybe also of a police force) immune from laws against AWs or MGs outside the scope of their militia (NG/police) duties.

 

[tcdrennen]

tyme wrote:

...There are some peculiarities; for instance, if I'm not mistaken, Cali police officers can have their duty assault rifles transferred to them upon retirement....

Not any longer - the only correct part of the 9th Circus' ruling in Silveira v. Lockyer was to declare unconstitutional the exemption in the Kali AW ban for retired/former LEOs to possess AWs with the depatrment's written permission.

They are just civilians/plebians/rabble like the rest of us so no privileges for them...

 

[Moparmike]

Remember this the next time you hear someone screeching about how the Militia is the only ones who should have guns: The Militia Act of 1792 (year?) states that "Any free white male inbetween the ages of 17 and 45 shall be considered to be a part of the militia" or something like that. Look it up and make sure.

What you should remember about that is this: Use that against them. When they point out that the militia should only have guns, say that they are against the following: non-whites, the elderly, and women. Because they just got through explicitly stating that only young white males should have firearms, wether that is for protection or otherwise.

I figure after the NAACP (and other race-rights organizations), the AARP, and NOW (and other womens' groups) are through with them, they will be about 1/10th of an inch high politically.

 

[gunsmith]

what if

we took this to court and they decide the NG is the militia?

I can't wait for the cops to find out that there toys are illegal when they retire.

 

[telewinz]

Was it EVER a "right"?

QUOTE]This document is sponsored by the United States Senate on the United States Government Printing Office web site.[/QUOTE]

In Cases v. United States, 131 F. 2d 916, 922
(1st Cir. 1942), cert. denied, 319 U.S. 770 (1943), the court, upholding
a similar provision of the Federal Firearms Act, said: ``Apparently,
then, under the Second Amendment, the federal government can limit the
keeping and bearing of arms by a single individual as well as by a group
of individuals, but it cannot prohibit the possession or use of any
weapon which has any reasonable relationship to the preservation or
efficiency of a well-regulated militia

In United States v. Miller,\4\ the Court sustained a statute
requiring registration under the National Firearms Act of sawed-off

[[Page 1194]]
shotguns. After reciting the original provisions of the Constitution
dealing with the militia, the Court observed that ``[w]ith obvious
purpose to assure the continuation and render possible the effectiveness
of such forces the declaration and guarantee of the Second Amendment
were made. It must be interpreted with that end in view.''\5\ The
significance of the militia, the Court continued, was that it was
composed of ``civilians primarily, soldiers on occasion.'' It was upon
this force that the States could rely for defense and securing of the
laws, on a force that ``comprised all males physically capable of acting
in concert for the common defense,'' who, ``when called for service
. . . were expected to appear bearing arms supplied by themselves and of
the kind in common use at the time.''\6\ Therefore, ``n the absence
of any evidence tending to show that possession or use of a `shotgun
having a barrel of less than 18 inches in length' at this time has some
reasonable relationship to the preservation or efficiency of a well-
regulated militia, we cannot say that the Second Amendment guarantees
the right to keep and bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of the ordinary
military equipment or that its use could contribute to the common
defense.''\7\
Since this decision, Congress has placed greater limitations on
the receipt, possession, and transportation of firearms,\8\ and
proposals for national registration or prohibition of firearms
altogether have been made.\9\ At what point regulation or prohibition of
what classes of firearms would conflict with the Amendment, if at all,
the Miller case does little more than cast a faint degree of
illumination toward an answer.
\8\Enacted measures include the Gun Control Act of 1968. 82
Stat. 226, 18 U.S.C. Sec. Sec. 921-928. The Supreme Court's dealings
with these laws have all arisen in the context of prosecutions of
persons purchasing or obtaining firearms in violation of a provisions
against such conduct by convicted felons. Lewis v. United States, 445
U.S. 55 (1980); Barrett v. United States, 423 U.S. 212 (1976);
Scarborough v. United States, 431 U.S. 563 (1977); United States v.
Bass, 404 U.S. 336 (1971).
\9\E.g., National Commission on Reform of Federal Criminal Laws,
Working Papers 1031-1058 (1970), and Final Report 246-247 (1971).

 

[Graystar]

Are there provisions in the federal and Kali AWBs, and the NFA, that would allow militia members to have "assault weapons" and full-auto weapons?

Normally such laws have exemptions for military and law enforcement. I've personally have never seen an exemption for the militia.

Then again, the militia doesn't need one because of the 2nd Amendment.

 

[Thumper]

Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Miller's incompetent attorney couldn't find a trench gun in an arms room somewhere with the barrel shortened? Or did Miller croak too fast...I can't remember?

Anyway...the antis that point at Miller prove themselves to be parrots who obviously haven't read the decision for themselves.

Miller clearly takes the Individual interpretation.

I want my SAW.

 

[geekWithA.45]

As a practical matter, this line of reasoning generally leads to jail.

IIRC, it's been tried a couple of times. In one case, an RKBA activist in (Arkansaw? Tennessee?) built a class III automatic firearm, claimed membership in the unorganized militia, and demanded to be arrested so he could have his day in court.

They obliged, and It didn't work.

I think it was a fairly low level state judge who went ahead and said that membership in the militia was irrelevant. It was certainly not the correct ruling, and I don't know where this thing went on appeal, but the message is pretty clear: in some jurisdictions, the courts won't let an inconvenient thing like 2A be an actual restraint on the powers of government.

Fortunately the courts are more upright in other jurisdictions.....for example, it was court action striking down handgun registration and licensure in the late 1800, early 1900 in Vermont that noted such schemes were abhorent to the state constitution....and viola! "Vermont Carry", which I might point out was not a legislative result.

 

[Old Fuff]

Gentlemen (and all others).

It is true that the “anti’s†like to claim that the Second Amendment applies to the “Militia†which is the National Guard, and therefore does not protect any individual’s right to “bare arms.â€

Gun Right advocates point to the Militia Act of 1792 as evidence that this isn’t true. They are right to a point, but it isn’t quite the right answer. While this federal statute, signed into law by president George Washington is the basis of the Militia of the United States (and an important document everyone should read) it has been replaced by subsequent laws passed at later dates.

At this time the Militia of the United States is defined in the U.S. Code/Title 10/Section 311. It can be found at the following link, and you should bookmark it.

http://www4.law.cornell.edu/uscode/10/311.html

What you will find is the current statute (United States Law) that defines what the "Militia" is. The statute reads as follows:

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > Sec. 311.

Next

Sec. 311. - Militia: composition and classes

(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


Obviously the Militia of the United States is not limited to the National Guard alone.

What about an individual right to "keep and bare arms?" You will find that the Founding Fathers who wrote the Constitution and Bill of Rights had plenty to say about individual rights. However, so far as I know not one of them left any written opinion saying that "the people" should be barred from owning arms. But a lot of what they said was in a militia context, because frankly with few exceptions, everyone is part of the Militia. In other words, "The People" were the Militia, and as such were required to provide their own arms and ammunition. Obviously they couldn't do this if they were not allowed to have arms.

The problem is that our current-day judicial system is filled up with left-wing liberal judges who interpret the Constitution and statutes by what they think they “should say,†rather then what they “do say.â€

Left-wing liberals like to talk about "power to the people" - except when it comes to having arms. If you know any males, who are citizens of the United States (or intend to be), and are between the ages of 17 to 44 you can drive them up a wall by pointing out that they too are Militia members with an obligation t “bare arms.â€

 

[Henry Bowman]

Thumper - Miller didn't have an attorney at the Sup. Ct. level. The attorney had successfully defended Miller at the trial court and appeal level. The client disappeared (may have died by then) and the .gov appealed to the Sup. Ct. with only their side of the argument. If our grandparents had known the long lasting implications of that case . . .

 

[GigaBuist]

Old Fuff,

Thanks for the follow up information. I know we're all against the "it's just for the military/militia" argument here but many people think this actually makes sense. Using the argument (as somebody else mentioned) that taking the "militia only" stance doesn't make for a very popular opinion when you inform the anti that that would mean all women not in the USA must be entirely unarmed and can't (ok, that wouldn't bother them)... but women's rights groups would throw a fit if you tried telling them they can't hunt with their own longarm. Most anti's I know are women... I must remember to bring that up if anybody ever spouts off about the militia clause again.

"Well, if that's your idea -- then I CAN own my AK-47... but you can't. How do you like them apples?"

As an aside,
How in hades do we have a law that states the MILITIA is men 17-45 when you must be 18 to even buy a rifle or ammunition?

 

[Old Fuff]

GigaBuist::

I brought this up once with a very anti-gun feminist, and she was outraged - not about the gun issue, that went over her head - but rather that she, as well as other women are excluded.

On the Constitutional aspects. The Constitution delegates certain powers to the Federal Government, and reserves all others to the States, or to “the people.†One of the Federal “powers†relates to the authority in “organizing, arming and disciplining the militia.†(See Section 8/15 &16)

While U.S. Code/ Title 10 authorizes the unorganized militia it does not specifically provide for arming it. Obviously and historically members are expected to arm themselves. You are right in your thinking that members of the unorganized militia should have a clear right to arm themselves with appropriate militia weapons. The rub is that today’s liberal courts and judges probably wouldn’t see it that way. There are some lower court decisions that were never reviewed by higher courts, and the Supreme Court in particular, that have said that based on the Supreme Court decision in the U.S. vs. Miller case (1939) the National Guard is “the militia.†The trouble is, U.S. vs. Miller never mentions the “National Guard†but does cite 18th century militia laws that specifically say that members are to supply their own arms and ammunition. The Militia Act of 1792 went further by specifying the particular kind of small arms that should be used.

So to answer your question, if we ever get the right kind of judges and courts, not the sorry examples we have now, and somebody brings a case based on these issues we might see some anti-gun laws thrown out.

(Da Fuff is so mean, and so tough (and so disorganized) dat he don't need no AK-47. You may refer to him as "U.S. Unorganized Militia, Ret.".)

 

[GigaBuist]

OK, so the unorganized militia has basically fallen by the wayside. Anybody that's a member of one is largely regarded as a nutjob that wants to be paramilitary. Is there anything we can do to get rid of this notion and make an unorganized militia a not unheard of thing anymore?

I'm thinking local county militia's that are on call for the local PDs or something... to help with search and rescue type stuff. Nothing fancy, but a loosely organized militia that can be contacted by the local PD with one or two phonecalls and net them 20-30 people (I don't think you'd get more than that -- and there's like 500,000 people in my county).

Just a thought.

 

[JPM70535]

Over the years i have read and re-read the 2nd amendment, and every time I do, I wonder if I am the only one who sees a different way to interpret what is stated, particularly as regards the following, "A well regulated Militia being necessary etc, etc, the right of the people to keep and bear arms SHALL NOT BE INFRINGED! In my view, assuming that as per liberal dogma, the National Guard is the Militia, WHO REGULATES, (CONTROLS, RESTRAINS, KEEPS IN CHECK, OVERSEES) THEM? The word regulated could be easily replaced by any of the others. using this premise as to the meaning of regulated, the answer just seems to jump out at me. THE PEOPLE, whos right to keep and bear arms regulate the Militia. Carry this one step further. 200 years ago the term Militia could just as easily have referred to the Continental Army. Having just defeated one oppressive military,(British army) Our founding fathers would have been paranoid about the possibility of the Continental army becoming simply a replacement for the British army, would have gone to great pains to insure that THE PEOPLE always had the means at their disposal to regulate the Militia, and if necessary, remove it.

Go ahead and burst my bubble if you must, but it gives me great pleasure to READ 2A THIS WAY

 

[Old Fuff]

JPM70535:

No, in my view you are reading it correctly. The Founding Fathers did not trust a large standing army, and believed the best security lay in a "militia" made up of every able-bodied man. The principal that armed citizens could and would protect their freedoms is as true today as it was then.

What we have been doing is taking the liberal's own argument concerning the Second Amendment vs. "the Militia" and turning it against them. If they want to argue that only the militia has a right to keep and bare arms then we can point out that for most practical purposes the militia is indeed all of us, not just the National Guard. This isn't exactly true because I believe the Second Amendment refers to an individual right, as do the other amendments in the Bill of Rights. Never the less it will leave the liberals sputtering. I know because I've done it, and while this approach isn't perfect it's good for a start.

 

[Molon Labe]

Originally posted by GigaBuist
OK, so the unorganized militia has basically fallen by the wayside. Anybody that's a member of one is largely regarded as a nutjob that wants to be paramilitary. Is there anything we can do to get rid of this notion and make an unorganized militia a not unheard of thing anymore?

I'm thinking local county militia's that are on call for the local PDs or something... to help with search and rescue type stuff. Nothing fancy, but a loosely organized militia that can be contacted by the local PD with one or two phonecalls and net them 20-30 people (I don't think you'd get more than that -- and there's like 500,000 people in my county).

Just a thought.

Then why not start a militia group in your area? Just design a web site (using a free web server such as www.tripod.com) and advertise for members.

Because like you, I was also concerned about the present state of our unorganized militia. I wanted to demonstrate it was possible for a militia to be composed of normal, law abiding, and virtuous people, and not the stereotypical "paramilitary nutjobs" as perpetuated by the media.

So I did exactly that – I started a militia. (Visit my web site for more info.) It has been one of the most enriching things I have ever done. Not to mention that I consider it a duty.

So many patriots talk. And talk. And talk. And talk. And talk. And when we desire for something to be done, we expect others to do it.

Not me. I don’t want to be a watcher. I don’t want to talk about it. I want to be a doer.

So my advice is this: If you desire for more people to become involved in the militia, and I (obviously) share this same desire, then don’t talk about it – do something. Don’t expect "others" to do it – get off your duff and do it yourself.

I am reminded of something my seventh-grade history teacher used to say: “Take initiative. Assume Responsibility.â€

Just my two cents.

 

[Thumper]

In the language of the day, "well-regulated" meant "in good order."

Like a well regulated fuel pump...get it? Has nothing to do with Regulations (laws).

 

[WvaBill]

In the language of the day,

IIRC, the "organized militia" would have been called the select militia.

 

[Old Fuff]

Molon Labe:

The only militia that is recognized by law is the one that was created in the Constitution (Section 8/15 &16) and the Bill of Rights' Second Amendment. This is the Militia of the United States that was first created by the Militia Act of 1792. The organization you wish to form is technically called an "armed body," or in the past a “private army†and are expressly prohibited by some state constitutions. Neither have any legal standing. This observation is not met to impugn either your motives or patriotism, just lead to some understanding that might help keep you out of trouble.

 

[Molon Labe]

Originally posted by Old Fluff
The only militia that is recognized by law is the one that was created in the Constitution (Section 8/15 &16) and the Bill of Rights' Second Amendment. This is the Militia of the United States that was first created by the Militia Act of 1792. The organization you wish to form is technically called an "armed body," or in the past a “private army†and are expressly prohibited by some state constitutions. Neither have any legal standing. This observation is not met to impugn either your motives or patriotism, just lead to some understanding that might help keep you out of trouble.

With all due respect, it does not matter to me whether or not our militia is “recognized by law.†We are a group of law-abiding citizens assembled for a common purpose, which itself is an inalienable right. The government does not have the legal or moral authority to shut us down.

You are correct that some state constitutions forbid “private armies.†(Ohio is not one of them.) Most of these laws were written in the early half of the 20th century, and were targeted at businesses that created such “armies†to intimidate labor unions. At any rate, these laws have not (thus far) been used to criminalize militias.

 

[Sodbuster]

Obviously the Militia of the United States is not limited to the National Guard alone

Especially since the National Guard wasn't formed until 1917.

The US Code, in the paragraphs previously cited, at one time specified that honorably discharged members of the armed forces were members of the militia until age 60. That reference seems to have disappeared; I would guess Congress "amended" the US Code. Some state codes may still specify the honorably discharged as members of the militia until age 60.

 

[nsmike]

The Real Militia

There is an organization that does fit the concept of the Militia. In 25 states there are State Guard/Self Defense Force/Home Guard type entities. The size and activities of these units varies considerably. As far as I know none of these Units have issued weapons. The true test of the Militia argument would be if a State were to authorize Home Guard type units to equip themselfs in the manner of the old militias, where every soldier, provided their individual weapons. I am thinking of writing an essay on the subject but I have just started to read up on it.

 

[M1911Owner]

That's an interesting thought. It might even fly in Texas or Utah.

 

[tyme]

JPM, that's interesting. But the militia was clearly understood to be everyone capable of bearing arms. Arguing that the amendment provides for people (the militia plus the young and the elderly) to regulate the militia by keeping and bearing arms seems to run into a logical problem. You have the militia regulating itself.