The law governing militias in the United States

[ConstitutionCowboy]

In Context

Congress shall have power: 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;

OK. Congress was granted power to provide for organizing, arming, and disciplining the militia. That means to pay for it and/or arrange to git'er'done. Next it mentions control and command(governing) what ever portion of the militia the United States(the Union) wants to employ. Next comes the reserving of the appointment of officers and authority of training per Congress's will to the states - respectively, meaning "[/i]in that order.[/i]" Hmm, "In that Order". Congress must call for the militia to be organized, armed, and trained(disciplined) first, then it must pony up the money and prescribe the discipline to be followed. Then the states must appoint the officers and see that the training is carried out. Cool. Nothing in this would prohibit Joe Citizen from training himself - along with a bunch of his friends - to become proficient in the finer techniques of battle and soldierly discipline without leadership from the state or funding from the United States. Such funding and authority from the United States and the state being absent does not make training and disciplining illegal or unconstitutional.

Joe Citizen and friends have not come between the power of Congress and the state to organize, arm, and discipline the militia, or to officiate over it. Until Congress does call for the militia, the authority for the state to appoint officers hasn't come into fruition. The organized militia, known as the National Guard, didn't come into being until Congress called for it. Anyone in the National Guard is subject to the governance of Congress and the appointed officers, but not you and me as long as we are not in the National Guard(Note: The National Guard is a portion of the militia in the employ of the United States.) The authority of the states to choose officers has not been breached by these people who are training and disciplining themselves. If Congress calls for the militia to be fully engaged, then these people training and disciplining themselves must, by the Constitution, fall in line with the constitutional provisions.

Don't forget this point: Congress has been granted power to yadda-yadda-yadda. It hasn't been granted THE power. Therefore, Congress does not have any exclusivity on gathering, training, and disciplining people for service in the militia. The states have been forbidden to gather and keep troops without the consent of Congress, but we the people have not been forbidden, nor can we be forbidden without a constitutional amendment granting that power to Congress. There is no United States law forbidding anyone from training and disciplining themselves nor do we need permission from Congress like the states.

I would go so far as to say any state law to the contrary of, or which could interfere with, the afore mentioned would be unconstitutional. The security of the United States and of the several states depends upon a ready supply of well regulated(trained and armed) citizens. Any such state law would also be afoul of the Second Amendment.

Our force of arms is the only tool we have to guarantee for ourselves that our elected and appointed officials will adhere to the Constitution. Therein lies our only hope for freedom from tyranny, to own property, to reap what we have sewn, and to pursue happiness. Don't ever shy away from making it clear to those who would muck it up. A little arming and training will go a long way to making your intentions and convictions undeniably clear.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood

 

[Bartholomew Roberts]

Here is an article on private militias written for the 1996 University of Pennsylvania Law Review and hosted by that notorious anti-militia organization, the Second Amendment Foundation, that summarizes some of these issues:

http://www.saf.org/LawReviews/Polesky1.html

If Congress calls for the militia to be fully engaged, then these people training and disciplining themselves must, by the Constitution, fall in line with the constitutional provisions.

Well, it is certainly an interpretation unlike any I have read before. Do you have some support that the interpretation you give is the one the founders intended? It seems your interpretation relies heavily on the fiction that the state cannot exercise any control over the militia unless they are called into service by Congress. How exactly is a state militia supposed to act as a check on a standing army if the state has no control over them until they have been federalized?

 

[Lucky]

Oleg won't let me use THR to seize control of the government and enact my enlightened regime

Touche

So, essentially, if a 'militia' acted as a group of individuals training, that's unregulatable, but if they announce that they're doing it as a formal group it falls under state jurisdiction?

 

[ConstitutionCowboy]

Three Answers:

Well, it is certainly an interpretation unlike any I have read before. Do you have some support that the interpretation you give is the one the founders intended? It seems your interpretation relies heavily on the fiction that the state cannot exercise any control over the militia unless they are called into service by Congress. How exactly is a state militia supposed to act as a check on a standing army if the state has no control over them until they have been federalized?

Bart,

Good question, and it has three answers. One is that the state can get permission from Congress - Article I, Section 8, Clause (3).


The second is if actually invaded or in such imminent danger as will not admit of delay - also in Article I, Section 8, Clause (3). That imminent danger can come from - yes, reason three:


The third is if those at the Union level decide to turn our country into a dictatorship, all bets are off.


All three answers are the reason the Second Amendment was created to protect the Right to Keep and Bear Arms. It's quite simple, cut and dried, to the point, uncompromising, and worth standing on that hill to protect.


Woody

"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the 'High Powers' delegated directly to the citizen by the United States Constitution, Amendment II....A law cannot be passed to infringe upon it or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision, Cockrum vs State of Texas, ---- 1859

Seems some of the states did consider the 2A binding upon the states. I still do.

 

[Werewolf]

Based on the law posted by the OP and the way anti's have misinterpreted the militia part of the 2nd Amendment I am really surprised that they haven't tried to use it to take guns away from men over the age of 45 and women.

 

[ConstitutionCowboy]

Werewolf

Based on the law posted by the OP and the way anti's have misinterpreted the militia part of the 2nd Amendment I am really surprised that they haven't tried to use it to take guns away from men over the age of 45 and women.

Won't work. The second Amendment has not been, nor can it be, preempted by ANY law. 'Course, that wouldn't stop them from trying, would it!

Woody

 

[Werewolf]

Won't work. The second Amendment has not been, nor can it be, preempted by ANY law. 'Course, that wouldn't stop them from trying, would it!

Woody

I imagine there's a whole lot of folks living in places like D.C., Chicago, NYC, MD, CA etc that would disagree that the 2A can't be preempted by any law because it most assuredly has been.

 

[ConstitutionCowboy]

Werewolf,

No doubt. But, that does not make it legal or Constitutional.

Woody

 

[gc70]

...but we the people have not been forbidden, nor can we be forbidden without a constitutional amendment granting that power to Congress.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Constitution does not give the federal government authority to prohibit private militias, nor does it deny such authority to the states. As previously noted, 28 states have used their constitutionally reserved authority to legally prohibit private militias.

 

[GRIZ22]

Article I, section 8 authorizes the state militias (National Guard) and the requirement of the Federal government to equip and train them. No where is anything repeated in the Constitution. If you say it once you don't have to say it again. The militia referred to in the 2A is the unorganized militia. There are commas between the militia, security, and right of the people to keep and bear arms. Any grammar guide will tell you a comma is a separation of thought. The right of the people to keep and bear arms has nothing to do with the militia.

 

[Aguila Blanca]

When our rulers abrogate their responsibility it falls to the people to fill in the gaps until our rulers recognize the error of their malfeasance.

Minor technicality. In general I agree with you. But ...

"Malfeasance" means "doing badly" (not to be confused with"misfeasance," which means doing incorrectly)

Not doing is "nonfeasance."

 

[ConstitutionCowboy]

The Constitution does not give the federal government authority to prohibit private militias, nor does it deny such authority to the states. As previously noted, 28 states have used their constitutionally reserved authority to legally prohibit private militias.

Interesting point, but when you consider that the Tenth Amendment, before it reserves powers not delegated to the Union to the states or the people, it excepts powers that have been forbidden by the Constitution to the states to be included in those reserved powers. One such exception would be power to infringe upon the Right to Keep and Bear Arms. Another exception would be power to make law respecting the Right of the People to Peaceably Assemble as protected in the First Amendment as applicable to the states by the Fourteenth Amendment.

I do not believe the states have any power reserved to them to prohibit the formation of any armed civilian assembly. I believe it would be unconstitutional.

Woody

[p] There is no "difference" between gun control and gun rights. Gun control seeks to put bounds upon, and possibly elimination of, our inalienable Right to Keep and Bear Arms. Don't be led astray with the inference that it is "gun" control or "gun" rights. The rights in discussion are rights of the people. Guns are inanimate objects; tools of freedom and self defense, primarily. Dehumanizing the discourse tends to lessen the impact if discussion were to be directed at the right being infringed, and attempts to remove it from the strict scrutiny of the Constitution. B.E.Wood [/p]

 

[glummer]

Bart

No, the unorganized militia is defined that way.

No, the militia is defined that way.

Title 10 U.S.C. 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 ...

 

[glummer]

hugh damright

I think the intent of militia is related to the right to alter/abolish government. If we think of everyone as being part of a giant US Militia, then it would seem to follow that we all have a right to rise up as one and take over the US. But that is a false view, as explained by Federalist #39:

Fed 39 refers only to the form of the government, not to any efforts to rise up against it. It is unlikely that any rebellion against tyranny would follow the rules laid down by the tyrant.

 

[hugh damright]

Fed 39 refers only to the form of the government, not to any efforts to rise up against it.

I think it does refer to the right to rise up against government. It says that in a national government the people have a right to rise up and alter/abolish government, but that the people of the US have no such right because the US is not a national government.

"Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles." -FEDERALIST #39

It is unlikely that any rebellion against tyranny would follow the rules laid down by the tyrant.

Tyrants don't lay down rules of rebellion, they deny the right. We made up our own rules, and our rule is that the majority of Virginians have a right to alter/abolish Virginia government, but the majority of Americans do not have a right to alter/abolish US government. Or are you telling me that you personally believe that the US is a national government i.e. a State and that the people of the whole US have a right to rise up as one and take over the US government?

 

[gc70]

Interesting point, but when you consider that the Tenth Amendment, before it reserves powers not delegated to the Union to the states or the people, it excepts powers that have been forbidden by the Constitution to the states to be included in those reserved powers. One such exception would be power to infringe upon the Right to Keep and Bear Arms.

Powers denied the States by the Constitution are specifically listed in Article I, Section 10 and the right to keep and bear arms is not listed therein.

Another exception would be power to make law respecting the Right of the People to Peaceably Assemble as protected in the First Amendment as applicable to the states by the Fourteenth Amendment.

Federal Constitutional rights were not binding on the States prior to the 14th. The due process clause of the 14th has been used to selectively require States to honor most Federal Constitutional rights.

The courts have not used the 14th to 'incorporate' the following Federal Constitutional rights: the Second Amendment right to bear arms, the Fifth Amendment right to an indictment by a grand jury, the Seventh Amendment right to a jury trial in civil lawsuits, and the Sixth Amendment's implicit command that a criminal jury can consist only of twelve members and must reach a unanimous verdict.

I do not believe the states have any power reserved to them to prohibit the formation of any armed civilian assembly.

The Constitution does not grant the Federal government authority to prohibit private militias.
The Constitution does not specifically deny the States authority to prohibit private militias.
Therefore, the States can legally prohibit private militias, as 28 States have done.

 

[ConstitutionCowboy]

gc70

States are not forbidden to select who you will marry in the Constitution, either.

Obviously, you do not believe that the Second Amendment protects the right of the people to keep and bear arms. Calling the rights we have as federal constitutional rights is the problem. Our rights do not come from the Constitution. They are ours by the simple fact that we are alive - a fact of life, as it were. All the Constitution does is protect them. Besides, by your interpretation, the only place that the Second Amendment would protect the RKBA would be in Washington, DC, or other territory belonging to the United States.

Answer this: What good is it to have a right protected at the Union level but not at the state level? And what of the Supremacy Clause in Article VI? What of the oath every judge in every state must make binding them to the supremacy of the Constitution? And, what of the requirements in Article I, Section 8, Clauses (15) and (16)? If a state forbids its citizens to keep and/or bear arms, where would that ready supply of armed citizens necessary to form a militia come from - at a moments notice - when imminent danger or invasion will not admit of delay?

And how would you answer that the Second Amendment does not limit its prohibitions to the Union as the First Amendment did prior to the Fourteenth? And, where did the Supreme Court get the power to incorporate or ignore any portion of the Constitution? The Supreme Court has no such power to interpret or ignore anything in the Constitution. The Supreme Court must obey the Constitution just like Congress, the Executive, the States, and you and me.

The First Amendment is the only amendment in the "Bill of Rights" with language specific to the Union: "Congress shall make no law..." None of the rest are specific to Congress. After all, it's all about rights of the people. They don't change no matter what level of government you live under.

Woody

"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the 'High Powers' delegated directly to the citizen by the United States Constitution, Amendment II....A law cannot be passed to infringe upon it or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision, Cockrum vs State of Texas, ---- 1859

Seems some of the states did consider the 2A binding upon the states. This was some years before the 14A, too.

 

[Marshall]

Anyone have SCOTUS's e-mail so we can send them this link and have them weigh in?

Seriously, this is very interesting reading.

 

[ConstitutionCowboy]

Just A Side Note:

Picture this: The East Coast gets invaded, prime target, New York City. A force of a hundred thousand or so appears on the shore and starts marching toward Central Park, shooting everyone they see along the way. There is not one law abiding citizen(all the elites with arms picked up and fled at the first sign of trouble) with any arms to help the police. In fact, the only appreciable arms are in the hands of criminals. Would they help? Not until they've looted everything of value! In fact, the criminals would only add to the chaos. Central Park would become the bivouac and the Astoria the headquarters.

Now picture the same scenario with the RKBA uninfringed. The hundred thousand invaders would be met at the shore by somewhere around a million armed civilians - the militia. The looters wouldn't be quite so lucky, either.

Both scenarios would be over in less than a day - even in the first scenario - because the military would eventually make short order of the invaders. But, I'd be willing to bet the loss of life, and looted and destroyed property would be less in the second scenario.

We'd better start adhering to the protections in the Second Amendment, even in New York City.

Woody

 

[gc70]

Obviously, you do not believe that the Second Amendment protects the right of the people to keep and bear arms.

When debate fails, just slander the other party?

Actually, I am a firm believer that the Second Amendment prohibits the Federal government from infringing on the people's inherent right to keep and bear arms.

Answer this: What good is it to have a right protected at the Union level but not at the state level?

The obvious answer is that it is the conceptual foundation of our republic. The Federal government should not meddle in some things; local populations should determine how those things are addressed in their respective states.

There are some things state legislatures should decide rather than having Nancy Pelosi stuff federal decisions down our throats.

Seems some of the states did consider the 2A binding upon the states.

No, but some states exercised their reserved power to specifically recognize the people's right to keep and bear arms in their respective state Constitutions.

 

[gc70]

States are not forbidden to select who you will marry in the Constitution, either.

Correct, although I'm fairly sure the Supreme Court would use the 14th to stomp any such state law in short order.

However, it is informative to note that as late as 1964, there were still 19 states that had laws prohibiting the marriage of people of different races.

If that is not enough of a shocker, consider the much-ballyhooed "separation of church and state" in the Constitution. Actually, the last established church in the U.S. was Congregationalism, the official religion of Massachusetts until 1833.

[Sorry to seem to veer off-topic, but it is essential to discuss the interplay of the powers of the federal and state governments to understand the law governing militias.]

 

[ConstitutionCowboy]

gc70

I didn't slander you.

No, but some states exercised their reserved power to specifically recognize the people's right to keep and bear arms in their respective state Constitutions.

How do you account for the Supremacy Clause and the fact that the judges in every state are bound by oath to regard the US Constitution as the supreme law of the land, with anything contrary in the laws or constitution of the states notwithstanding?

Whether it is in the constitution of the states is immaterial. The Second Amendment is a part of the US Constitution, and therefore, supreme law of the land. And, it doesn't matter whether each, any, or all levels of government are mentioned. In fact, NO level of government is mentioned. It protects a right of the people.

Woody

As the Court said in Boyd v. United States:

"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."

We should not wait solely upon the Court to protect our rights for us, but should take an active part in protecting them as well.

 

[gc70]

I didn't slander you.

You may be correct. Your accusation that I do not believe the Second Amendment protects the rights of the people to keep and bear arms may be libel. I am not certain whether something said on the internet is legally considered published or spoken.

How do you account for the Supremacy Clause and the fact that the judges in every state are bound by oath to regard the US Constitution as the supreme law of the land, with anything contrary in the laws or constitution of the states notwithstanding?

Article 6, Clause 2 only deals with "anything contrary" in state law. Article 1, Section 10 prohibits any state from granting titles of nobility. If a state passed a law to create titles of nobility, there would be a direct conflict between the Federal and state law and the Federal law would prevail. Only when a conflict exists does the Supremacy Clause allow the Federal law to trump state law. As long as there is no conflict between Federal and state laws, they coexist peacefully.

The Second Amendment of the US Constitution prohibits the Federal government from infringing on the people's right to keep and bear arms. State governments (New York and California come to mind) can infringe the heck out of the right to keep and bear arms without being in any way in legal conflict with the Second Amendment... because the 2nd has not been incorporated to apply to the states.

 

[ConstitutionCowboy]

gc70

If that is not enough of a shocker, consider the much-ballyhooed "separation of church and state" in the Constitution. Actually, the last established church in the U.S. was Congregationalism, the official religion of Massachusetts until 1833.

That is why the restrictions in the First Amendment WERE specific to Congress. Massachusetts was not the only state with a state sponsored or official faith, and those states didn't want Congress messing with their religions, or preempting them with an "official" national religion. Even the phrase "separation of church and state" is a misquote and is out of context with Jefferson's statement. He said in part and in context:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. (Bold emphasis mine)

Here is a link to a transcript of the whole letter.

Woody

 

[gc70]

That is why the restrictions in the First Amendment WERE specific to Congress.

It is not just the 1st Amendment. See the bottom of this link for a list of landmark cases incorporating the 4th through 8th Amendments, none of which begin with the phrase "Congress shall make no law..."

The amendments comprising the Bill of Rights are restraints on the Federal government. Through incorporation, most of them are now also restraints on state governments.