The law governing militias in the United States

[Bartholomew Roberts]

This thread is a spin-off topic from the discussion that was started here:
http://www.thehighroad.org/showthread.php?p=2849059#post2849059

The purpose of this thread is to discuss both the original intent of the founders and modern law governing the militia. Topics of discussion are law governing militia, whether private militias are protected by the Constitution, and who is authorized to control the militia.

 

[.38 Special]

IMO, the issue is fairly straightforward.

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 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.

 

[velojym]

That's pretty much it. The only reason to introduce/promote legislation now
would be to limit our ability to perform as the real militia. They've already done much to limit that, between the '34 and '68 Victim Disarmament acts, as well as the multitude of others before and after.

 

[cropcirclewalker]

I know some say that Presser proves that one is only allowed to belong to a state sponsored militia, but 2 things come to mind.

1) Presser happened in Illinois. Even worse, it happened in Cook County, Illinois. What is wrong with this picture?

Is there anybody out there who can provide insight into whether there are any non socialist, corrupt states that prohibit assembling, associating and drilling with arms without a permit?

2) Considering that all males meeting the criterium are in the militia, is there any way for a state to circumvent that portion of the law and get members of the alleged "private milita" (which is made up of members of the real militia) to fall into the exemptions as listed in section 313 of title 32?

I don't know, but I suspect that section 313 removes, physically handicapped, mentally deficient, conscientious objectors and perhaps active members of the (acknowledged dangerous standing army). Just guessing.

I suspect that the largest outcry would arise if and when .gov decided to redefine the militia as signed up members of the National Guard. That would drive a stake into the heart of the 2a for many.

Then again, maybe not.

 

[jlbraun]

I still think that local municipalities should have local armories full of M4s, MP5s, SAWs, mortars, artillery, the whole bit, just like in Israel. Just-sign-here, and here's your weapon. Do bring it back, please.

 

[.38 Special]

TITLE 32 > CHAPTER 3 > § 313

§ 313. Appointments and enlistments: age limitations


(a) To be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45, or under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age.
(b) To be eligible for appointment as an officer of the National Guard, a person must—
(1) be a citizen of the United States; and
(2) be at least 18 years of age and under 64.

 

[Bartholomew Roberts]

If you haven't read the earlier thread, please don't respond to this one. The whole point of this thread is to continue a topic that was causing the other thread to go off topic. Now this thread is headed the same way because people are jumping in without having followed the earlier discussion linked above.

I know some say that Presser proves that one is only allowed to belong to a state sponsored militia, but 2 things come to mind.

It isn't just Presser. The U.S. Constitution says just that in Article I section 8:

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

Forming a private militia denies the State its Constitutionally authorized power to appoint officers and train the militia. It further circumvents the whole concept behind civil control of the military. Even the standing army is subject to the control of our elected civil governments. Allowing the creation of private military units outside that control short-circuits our process of government instead of securing it.

States may allow or even encourage private militias if the elected civil government chooses to do so (and 22 states do allow it); but the Constitution clearly reserves the power to do that to the states.

 

[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:

"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

 

[DBabsJr]

The only reason to introduce/promote legislation now
would be to limit our ability to perform as the real militia. They've already done much to limit that, between the '34 and '68 Victim Disarmament acts, as well as the multitude of others before and after.

I agree. The Defense Authorization Act of 2007 amended Section 333 of Title 10 USC from:

§ 333. Interference with State and Federal law

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

To:

Sec. 333. Major public emergencies ; interference with State and Federal law

`(a) Use of Armed Forces in Major Public Emergencies - (1) The President may employ the armed forces , including the National Guard in Federal service, to--

`(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--

`(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and

`(ii) such violence results in a condition described in paragraph (2); or

`(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).

`(2) A condition described in this paragraph is a condition that--

`(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

`(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

`(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

`(b) Notice to Congress- The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority.'.

Is the removal of militia from the code something to be concerned about?

 

[cropcirclewalker]

That other militia string was started by a troll and got jumped into by a bunch of chest thumpers vs the statists. It made me sad to see how many took his bait.

Since I don't knowingly feed the trolls I did not respond although I tried to read as much of it as I could stomach.

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

Forming a private militia denies the State its Constitutionally authorized power to appoint officers and train the militia. It further circumvents the whole concept behind civil control of the military. Even the standing army is subject to the control of our elected civil governments. Allowing the creation of private military units outside that control short-circuits our process of government instead of securing it.

We got us a quandary here.

The militia is defined as all able bodied males within a certain age range and not otherwise excluded by section 313. (herinafter referred to as, "All able bodied males")

Now, therefore, we can substitute the phrase 'all able bodied males" anywhere we see the phrase "the militia" appears, so lets see how it looks.

To provide for organizing, arming, and disciplining all able bodied males, 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 all able bodied males according to the discipline prescribed by Congress.

Now, that may seem strange. When it is put that way.
I conform to and fall within the militia act definition.

Congress has not organized me.
They have not disciplined me.
Mostly agredgieous they have not armed me.

Additionally, the state has not trained me nor appointed any officers that lead me.

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. You may attempt to denigrate my statements, but as an example............

Cities have fire departments. They are charged with the responsibility of providing fire protection.

Time passes.

Your house catches fire. The alarm goes in. Can it be a crime for your neighbors to gather together and attempt to fight the fire until the "Authorized" fire dept shows up to push in the walls and wet down adjoining structures?

Of course not.

The Militia is the citizenry and lacking any "Authorized" training, arming, diciplining and organizing, it up to the willing citizenry to fill in the voids.

There you have it. No more quandary.

If the State and their Statists would do their job, we, the citizenry would not have to.

 

[Marshall]

That other militia string was started by a troll

And why is he a troll? Because he thinks the guys in the article are a joke and jeopardizing our RKBA? I agree with him and I'll promise you, I'm no troll.

 

[Jeff White]

cropcirclewalker,
I hardly believe the political climate in Chicago in the 1880s was the same as it is today.

The law is quite clear and has been quite clear since the constitution was ratified that the militia, both the organized and unorganized militia is a force that is under the control of the elected government.

The beauty of Presser and the reason it's important to us now is that while it said the government had the power to regulate military organizations, it did not have the power to disarm the people, because the people are required to be be armed and available to serve in the militia.

Basically you may keep and bear arms. But if you and your neighbors band together and form a paramilitary organization, you are subject to having your paramilitary organization regulated or even outlawed.

No government can long survive if it doesn't have sole control of military force within it's borders.


Jeff

 

[Bartholomew Roberts]

The militia is defined as all able bodied males within a certain age range and not otherwise excluded by section 313. (herinafter referred to as, "All able bodied males")

No, the unorganized militia is defined that way. The unorganized militia is the pool from which the organized militia is drawn. The unorganized militia represents the population that the state has the authority to compel to serve in the militia.

The Militia is the citizenry and lacking any "Authorized" training, arming, diciplining and organizing, it up to the willing citizenry to fill in the voids.

If the State and their Statists would do their job, we, the citizenry would not have to.

Maybe if fire departments had a history of insurrection and rebellion in attempting to remove the elected civil governments, your analogy might have more relevance. Private militia groups DO have that connection. Shays Rebellion in 1787 was a great example of this (and ironically enough, it was put down by the state contracting with a private citizen to suppress it).

The elected civil government is the one in charge of the militia. If you feel that it is not executing its duties under the Constitution properly, you should change the elected government. You don't get to unilaterally decide that your thoughts on the matter are superior to the electorate and assemble your private militia accordingly. This violates the entire premise behind our form of government that military power is subject to the elected civil authority.

For that matter, if somebody wanted to form a private group to protect the Constitution, they would be a lot better off carrying voter registration sheets and doing door-to-door campaigning than they would running around the woods with their rifles playing soldier (not that any of the examples I saw in that link were going to be running much).

 

[cropcirclewalker]

Mr. White said;

I hardly believe the political climate in Chicago in the 1880s was the same as it is today.

By their actions ye shall know them. They're no different now than they were then.

The law is quite clear and has been quite clear since the constitution was ratified that the militia, both the organized and unorganized militia is a force that is under the control of the elected government.

The beauty of Presser and the reason it's important to us now is that while it said the government had the power to regulate military organizations, it did not have the power to disarm the people, because the people are required to be be armed and available to serve in the militia.

It is obvious to me that our rulers wished that we would just forget about the militia. It doesn't fit their scheme.

The law is quite clear and has been quite clear since the constitution was ratified that the militia, both the organized and unorganized militia is a force that is under the control of the elected .gov.

[sarcasm]Anybody that has attended one of the many drills that they have with their .gov provided weapons could attest to that. [/sarcasm]

No, they want us to forget about it. They want us to forget that the standing army that they raised to do their world conquest is constitutionally limited to a 2 year time frame (good ole art. 1 section 8)

I chuckle when I remember how the Union Army invaded Missouri back in 1861. They came up the Missouri River, confiscating privately owned firearms and when they got to Jefferson City (the capitol of MO) the duly elected legislature had escaped to Arkansas to avoid imprisonment.

Yes, until that time they had remained in the union. They had declared a position of "Armed Neutrality" and had told both the Union Army and the Secessionist Rebels to stay the heck outa Missouri. We did not want to get involved in this fight.

So, anyway, the MO legislature, whilst in Arkansas, voted to secede.

Consequentially, the Union appointed a new legislature and governor and commence to occupy the state.

Article. IV.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Read it and weep.

So, anyway, General Sterling Price leader of the Missouri Militia got himself mixed up with the Union Army in August (I think) of 1861 up there in Lexington (a Missouri river town maybe 70 miles east of KC) and a battle ensued.

Sometimes referred to as "The Battle of the Hemp Bales", cause back then it was still legal to grow hemp (I yam told it makes good rope)

The union contacted KC and told them to send the Kansas Militia post haste to assist in their defence.

When the Kansas Militia got to the state line (Kansas and Missouri are adjacent states) they stopped. They refused to cross the state line.

The Kansas Militia maintained that they were a body of men summoned together to protect the state of Kansas.

So, now you know why .gov is trying to make us forget about the evil Militia. It is an armed body that is not interested in world conquest or empire building. The .gov that we have now is interested in international adventureism. Hard to conquer a nation of goat herders with a milita.

No government can long survive if it doesn't have sole control of military force within it's borders.

Our .gov could have sole control of the militia if they chose to.

They could have musters.
They could have drills.
They could issue weapons.
They could train and discipline.

All as laid out in the constitution. article 1 section 8

But they don't. No, they keep in place a standing army which to all is known as a danger to liberty in times of peace.

Read it and weep.

 

[thexrayboy]

No government can long survive if it doesn't have sole control of military force within it's borders.

Precisely, that is one reason why some in power fear gun owners. They fear they cannot control us, therefore we are a threat to their survival as a governing power. Solution, disarm us. Problem solved.

 

[Bartholomew Roberts]

No, they want us to forget about it. They want us to forget that the standing army that they raised to do their world conquest is constitutionally limited to a 2 year time frame (good ole art. 1 section 8)

Not true. Appropriations to support a standing army are limited to a two-year time frame by the Constitution. The actual standing army can be maintained as long as Congress wishes and was created in 1794 when most of the people who feared it were alive to vote out the Congress that appropriated money for it. One reason the standing army has existed for so long is because it happens to be tremendously effective in fighting wars.

Sometimes in our concern with tyranny, we forget that another reason people do things or change behavior is because they way they were doing things wasn't working well for them (the express powers under the Articles of Confederation being a nice example).

After all, just the training for my military job was 18 months of full-time instruction. It is kind of hard to maintain that level of training or capability without a standing military force of some kind.

 

[Marshall]

Our .gov could have sole control of the militia if they chose to.

They could have musters.
They could have drills.
They could issue weapons.
They could train and discipline.

Do they not?

It seems the Miltia Act of 1903 pretty much ended up with the gov having control.

The Militia Act of 1903, also known as the Dick Act, was the result of a program of reform and reorganization in the military establishment initiated by Secretary of War Elihu Root following the Spanish-American War of 1898 after the war demonstrated weaknesses in the militia, as well as in the entire United States military.

The ultimate result of the Act was the creation of the modern National Guard Bureau which is the federal instrument responsible for the administration of the National Guard. Established by Congress as a Joint Bureau, of the Departments of the Department of the Army and the Department of the Air Force. It holds a unique status as both a staff and operation agency.

United States Senator Charles Dick, a Major General in the Ohio National Guard, sponsored the 1903 act, which gave Federal status to the militia. Under this legislation the organized militia of the States was required to conform to Regular Army organization within five years. The act also required National Guard units to attend 24 drills and five days annual training a year, and, for the first time, provided for pay for annual training. In return for the increased Federal funding which the act made available, militia units were subject to inspection by Regular Army officers, and had to meet certain standards.

And it (organized militia) has grown into what it is today.

http://en.wikipedia.org/wiki/Militia_Act_of_1903

 

[cropcirclewalker]

Not true. Appropriations to support a standing army are limited to a two-year time frame by the Constitution. The actual standing army can be maintained as long as Congress wishes and was created in 1794 when most of the people who feared it were alive to vote out the Congress that appropriated money for it. One reason the standing army has existed for so long is because it happens to be tremendously effective in fighting wars.

Word smithery in action.

Article 1, Section 8...

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Which might have made sense if the framers hadn't followed that phrase with

Clause 13: To provide and maintain a Navy;

I know that I am not the sharpest tool in the box, but for a simple country boy like me it appears that the framers wanted to limit the time that we had to suffer the prescence of a standing army.

Navy is a defensive instrument. Marines can fight ground defensive operations. Marines are in the Navy.

I apologize for the Halls of Montezuma but I think the shores of Tripoly was fighting pirates which was justified.

As I stated before. A standing army in times of peace were understood to be dangerous to liberty.

Granted, we are a warlike people. We love to make war. We are good at it. We might have well as been Vikings. Kill and Conquer, it's our way of life.

In 231 years of our republic we have not gone 25 years without being in a war with somebody.

That is what the framers were trying to stifle when they limited paying for armies for more than 2 years.

A standing army is bad.

A militia is good.

We have been suckered into thinking the opposite.

 

[Bartholomew Roberts]

I know that I am not the sharpest tool in the box, but for a simple country boy like me it appears that the framers wanted to limit the time that we had to suffer the prescence of a standing army.

The Revolutionary War lasted from 1776-1783. Do you really believe the same people who fought it intended to limit the time we could have a standing army to two years?

The Founding Fathers were quite concerned about the danger to liberty represented by a standing army. Despite that, many of the same people who ratified the Constitution also voted to create a standing army in 1794.

A standing army is bad. A militia is good.

A standing army is dangerous to freedom; but it is also a lot more effective in war. Even in the Revoutionary War, the success of the militia was mixed. Today when technology is used to multiply force effectiveness, that is going to be even more true than it was in the past.

 

[gc70]

I know that I am not the sharpest tool in the box, but for a simple country boy like me it appears that the framers wanted to limit the time that we had to suffer the prescence [sic] of a standing army.

Maybe James Madison, who was one of the Founders, can shed light on the question (from the Federalist no. 41).

How could a readiness for war in time of peace be safely prohibited, unless we could prohibit in like manner the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation.
.......
Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies, is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added.

A standing army was accepted as a necessary, but potentially dangerous, tool to be viewed and managed with caution.

 

[Lucky]

Bartholomew Roberts

The unorganized militia is the pool from which the organized militia is drawn. It is the organized militia that is subject to state authority; but it does logically follow from this that the state can stop the unorganized militia from organizing on its own contrary to the state's authority to name officers and train.

I think that's the crux of the problem, right there.

Now I'd like to use the Attorney General's memoradum from 2004 to explain why I think your logical preumption is incorrect. http://www.usdoj.gov/olc/secondamendment2.htm#2c

SIZE="1"](talking of the collective-right view)[/SIZE]
"On their interpretation, the "people" to which the Second Amendment refers is only the "people" in a collective, organized capacity as the state governments, or a small subset of the "people" actively organized by those governments into military bodies. "People" becomes interchangeable with the "State" or its "organized militia.""

(hole lot of big words here!)
"This argument misunderstands the proper role of such prefatory declarations in interpreting the operative language of a provision. A preface can illuminate operative language but is ultimately subordinate to it and cannot restrict it."

Wholly apart from this interpretive principle, this argument also rests on an incomplete understanding of the preface's language. Although the Amendment's prefatory clause, standing alone, might suggest a collective or possibly quasi-collective right to a modern reader, when its words are read as they were understood at the Founding, the preface is fully consistent with the individual right that the Amendment's operative language sets out. The "Militia" as understood at the Founding was not a select group such as the National Guard of today. It consisted of all able-bodied male citizens. The Second Amendment's preface identifies as a justification for the individual right that a necessary condition for an effective citizen militia, and for the "free State" that it helps to secure, is a citizenry that is privately armed and able to use its private arms.


So you see not only are people to be allowed to own their arms, they are to be able to use them, meaning that training is an enshrined right.

 

[Bartholomew Roberts]

Lucky, why do you think a DOJ memo supporting the individual right to keep and bear arms somehow supports a right to form a private militia? In fact, the DOJ memo, makes the same distinction I just did between the unorganized militia (the people) and the organized militia (the National Guard).

The memo says that in order to have an effective organized militia, the individual RKBA must be guaranteed to the unorganized militia. It is basically a revamp of what the Presser opinion said that Jeff White quoted to you earlier.

You appear to be assuming that I am saying individuals cannot train with their firearms and that is not what I am saying. I am saying individuals may not organize themselves into private self-selected militias outside the authority of the state government.

 

[Lucky]

So it's agreed, people have a right to own military weapons (and others) and they have a right to train and become proficient with them.

But who gets to decide what level of organization is allowed? You? The gov't? How many people assembling is too many? How much social structure will be allowed? What communications are allowed between members?

Basically, what is to stop you from declaring that every person wearing camo and shooting a milsurp rifle is subject to State militia laws?

 

[JohnBT]

"A standing army was accepted as a necessary, but potentially dangerous, tool to be viewed and managed with caution."

Exactly, and therefore a limit of 2 years was put on the appropriation of money to support it and then they'd have to re-vote and re-appropriate more money for the following 2 years. And so forth. It's pretty straightforward.


"Basically, what is to stop you from declaring that every person wearing camo and shooting a milsurp rifle is subject to State militia laws?"

What is to stop B. Roberts from declaring that? Nothing, although I don't think he holds an elected federal office and I don't think his decisions carry the weight of law. I could be wrong, maybe he's the man.

John

 

[Bartholomew Roberts]

But who gets to decide what level of organization is allowed? You? The gov't? How many people assembling is too many? How much social structure will be allowed? What communications are allowed between members?

Depends on what the state law is (because that is to whom the Constitution delegates the authority). If citizens feel that these rules are unjust, they can change the elected government to one that they think is better. The important part is that whether a state decides to prohibit private militias entirely or encourage private militias and support them, that decision represents the will of the people through their elected representatives. This is what our form of government is all about.

Which brings us to another point, even the rights in the Constitution are only as good as the people they protect. No paper can guarantee you your freedom if you don't take part in the political process. If these private militias really wanted to defend the Constitution, they would be endorsing candidates, donating to campaigns and walking the precincts for their candidates. Nobody likes to hear that because it isn't near as adventurous as getting all geared up with your guns and running around with your gun-toting friends; but it is true all the same.

Basically, what is to stop you from declaring that every person wearing camo and shooting a milsurp rifle is subject to State militia laws?

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