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Saved by the Militia:
I though some might appreciate a link to my September 18th, 2001 Guest Comment on National Review Online entitled, Saved by the Militia: Arming an army against terrorism. Here is how it began:
A well-regulated militia being essential to the security of a free state. . . ." The next time someone tells you that the militia referred to in the Second Amendment has been "superceded" by the National Guard, ask them who it was that prevented United Airlines Flight 93 from reaching its target. The National Guard? The regular Army? The D.C. Police Department? None of these had a presence on Flight 93 because, in a free society, professional law-enforcement and military personnel cannot be everywhere. Terrorists and criminals are well aware of this — indeed, they count on it. Who is everywhere? The people the Founders referred to as the "general militia." Cell-phone calls from the plane have now revealed that it was members of the general militia, not organized law enforcement, who successfully prevented Flight 93 from reaching its intended target at the cost of their own lives.

The characterization of these heroes as members of the militia is not just the opinion of one law professor. It is clearly stated in Federal statutes. Perhaps you will not believe me unless I quote Section 311 of US Code Title 10, entitled, "Militia: composition and classes" in its entirety (with emphases added):
"(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."
This is not to score political points at a moment of great tragedy, though had the murderers on these four airplanes been armed with guns rather than knives, reminders of this fact would never end. Rather, that it was militia members who saved whatever was the terrorists' target — whether the White House or the Capitol — at the cost of their lives points in the direction of practical steps — in some cases the only practical steps — to reduce the damage cause by any future attacks.
Here is how it ended:
A well-regulated militia does not require a draft or any compulsory training. Nor, as Alexander Hamilton recognized, need training be universal. "To attempt such a thing which would abridge the mass of labor and industry to so considerable extent, would be unwise," he wrote in Federalist 29, "and the experiment, if made, could not succeed, because it would not long be endured." But Congress has the constitutional power to create training programs in effective self-defense including training in small arms — marksmanship, tactics, and gun safety — for any American citizen who volunteers. Any guess how many millions would take weapons training at government expense or even for a modest fee if generally offered? [snip]

Rather than make war on the American people and their liberties, however, Congress should be looking for ways to empower them to protect themselves when warranted. The Founders knew — and put in the form of a written guarantee — the proposition that the individual right to keep and bear arms was the principal means of preserving a militia that was "essential," in a free state, to provide personal and collective self-defense against criminals of all stripes, both domestic and foreign.

A renewed commitment to a well-regulated militia would not be a panacea for crime and terrorism, but neither will any other course of action now being recommended or adopted. We have long been told that, in a modern world, the militia is obsolete. Put aside the fact that the importance of the militia to a "the security of a free state" is hardwired into the text of the Constitution. The events of this week have shown that the militia is far from obsolete in a world where war is waged by cells as well as states. It is long past time we heeded the words of the Founders and end the systematic effort to disarm Americans. Now is also the time to consider what it would take in practical terms to well-regulate the now-unorganized militia, so no criminal will feel completely secure when confronting one or more of its members.
Horatio (mail):
Two Questions:

1 - I am over 45. Does this mean I am not a member of the unorganized militia, and can be deprived of the right to keep and bear arms?
2 - Given that Section 311 of US Code Title 10 uses the word "male", what about a woman's right to own firearms?
9.11.2008 7:06pm
JNHeath (www):
I'm sorry, but the passengers who banded together and took action on Flight 93 were not a "militia". They were not even a "posse". Citing the federal militia statute here sounds like point-scoring off of a tragedy to make a very tangential RKBA argument seven years ago.

I appreciate the point, however, about an active vs. passive citizenry. Gary Hart's book _Minuteman: Restoring an Army of the People_ made a fine argument consistent with Randy's above. The early social scientists, centered in Englightenment Edinburgh, published excellent tracts on the social and political importance of the militia system, see my article in the Journal on Firearms and Public Policy. And Massachusetts had a lively and illuminating debate about the importance, and constitutionality, of the state enrolling black militia in the 1850s. The relationship of governed to sovereign, through armed service, is an old and honored subject. The events and consequences of 11 Sept. 2001 are a good reason to study and reflect on historic writings about the difference between a traditional definition of "citizen", where membership in the polity is inextricably bound with the responsibility and right to defend it, vs. the modern conception of "citizen" as a client of the state who pays for services. But there must be better ways to introduce such a noble subject than to exploit our emotional response to the events of seven years ago and pin the title of "militia" on a handful of airline passengers placed in a desperate, impossible, situation .
9.11.2008 7:10pm
Eric (mail) (www):
Well Horatio, I'm pretty sure that the US Code can't override the US Constitution. The Amendment doesn't say anything about men, it says people. It also says nothing about age, it says people. Based on that reading, plus our most recent Supreme Court ruling, I think you and the lovely women of the US are safe.
9.11.2008 7:11pm
DCH (www):
I am not sure that any armed group defending American interests qualifies as a United States Militia.

As this is not just a militia, but the Militia of the United States I think it requires direction from the State or a representative of the state to actually qualify. As the passengers did not receive state sponsorship or state direction and acted independently, I do not think they could be called a Militia of the United States.

Further, if any non-National Guard female passengers assisted, would they be in a different class than the male passengers? I don't think so. I prefer to call both classes Heroes and avoid the militia argument.

I think the well-regulated aspect is challenging -- I think that our current militia is not particularly well-regulated or maintained and that perhaps this is an area we could improve. However, when you organize and train a group of civilians to use weapons, you have to realize that it does cause an opportunity cost (lost time they could be producing things to support our economy which in turn supports our formal military), and that it disemminates both arms and weapon knowledge to the general public, which is usually an un-needed skill, especially when compared to learning every method to avoid a situation where you would need a gun in the first place.

I still think that the Second Amendment simply grants the right to arms unconditional of the Militia element.
9.11.2008 7:13pm
Eric (mail) (www):
DCH:
However, when you organize and train a group of civilians to use weapons, you have to realize that it does cause an opportunity cost


But, if it is voluntary organization/training then the marketplace is self selecting the appropriate use of the volunteer's time. They have elected to choose one opportunity cost over another. I see no issue here.

... and that it disemminates both arms and weapon knowledge to the general public, which is usually an un-needed skill ...


Well, who says? Is that your considered opinion? I happen to disagree. I think the lack of arms and weapons knowledge today is a major downside in our civil society. Any thing to substantiate that, other than your opinion?
9.11.2008 7:19pm
JNHeath (www):
Eric,

The US Code can't override the Constitution, but the Constitution gives Congress the power to write the Code. And the Constitution notably does not give states the power to define militia enrollment, beyond appointing officers, and even that probably within qualifications defined by Congress. As in "Don't Ask Don't Tell."

Some have argued theoretically that the 2nd Amendment is a provision which protects state authority to arm citizens that the states define as militia. But I have yet to see the proponents of this argument (the Collective Model) adduce a shred of evidence for such a theory. E.g. J. Steven's conclusory footnote 20, pp.19, cites no evidence for a rather remarkable proposition, that the states have the power to create 50 different militia standards, and Congress lacks the supremacy to create a uniform system of national defense according to its own best judgment.
9.11.2008 7:20pm
Bruce:
I don't get why it's significant that everyone is a member of the militia. So the militia butters toast in the morning, and they mow their lawns, and they occasionally take over plane flights. So what?
9.11.2008 7:22pm
iambatman:
Wonderful. Congress should pass more statutes vaguely authorizing people to do what they rationally should do anyway when death is imminent and they would be immune from enforcement of contrary legislation in order to support bloggers' political opinions.
9.11.2008 7:26pm
crane (mail):
...it disemminates both arms and weapon knowledge to the general public, which is usually an un-needed skill, especially when compared to learning every method to avoid a situation where you would need a gun in the first place.

Sure, you can ignore self-defense and devote your time to avoiding violent situations. But sometimes the violence finds you, and then you're SOL.

Just recently, Philadelphia had an incident where a man was beaten up by a total stranger on the train for no apparent reason, and in the sight of several other people. The attack lasted several minutes, but nobody tried to intervene.

I'd say the public needs to have more knowledge of arms and weaponry, and more importantly a sense of duty to use it to help fellow citizens.
9.11.2008 7:34pm
Jon Roland (mail) (www):
Confusion in our time arises from the idiomatic usage in the Founding Era of the same word to refer to both an activity and those engaged in it, and "militia" is one such term. There are many others, and such usage persists to this day, but most people don't even notice it.

It helps to understand the original meaning to substitue the phrase "defense activity" for "militia" wherever it appears.

There are different classes of militia in the sense of those engaged in it:
1. Those are are engaged in militia, at any level, includuing merely setting a good example by obeying the law.
2. Those required under penalty of law to respond to a militia call-up.
3. Those who actually respond to a call-up, whether required or not.

All this is discussed at the following pages:
1. Constitutional Defense
2. Constitution blog 1
3. Constitution blog 2
4. A Discourse of Government with Relation to Militias, Andrew Fletcher (1698)
9.11.2008 7:35pm
Horatio (mail):
I'm pretty sure that the US Code can't override the US Constitution.

OK - then switching topics (and I don't mean to hijack this thread), can you show me the Constitutional Amendment that overrides Article 1 Section 10 of the US Constitution that states "No State shall...make any Thing but gold and silver Coin a Tender in Payment of Debts..."
9.11.2008 7:35pm
Eric (mail) (www):
Shrugs, no State did that. That section is "Powers Prohibited to the States", IIRC.

That said, I think the 9th and 10th Amendments prevent the US Congress from creating fiat money. But the Supreme Court doesn't agree.
9.11.2008 7:39pm
DCH (www):
Eric:

Nope, just opinions, it is not an issue I am very emotionally attached to, but I do think it does make some reasonable sense that when you disemminate what is essentially the knowledge on effective killing to the general public, it will get to both those who will use it defensively and those who will use it offensively. This argument then leads to values judgments which I do not think have any sort of final conclusion and just have philosophical positions. Alternatively, it can lead to citing the Trent Lott study or similar and citing that an armed society is a polite society, which ends in an argument that violence could all be sociological factors anyways and that guns are not related. I do not think there is strong proof for either argument and I think opinions and philosphical positions are the last stop on that train of thought.

If it is voluntary, you may be correct about Market Allocation, I was approaching it a bit differently and thinking that part of being Well-Regulated required a bit more organization than "Meet at Bill's, BYOG". You may also be incorrect as Market Allocation is dependent on Rational Actors and we could argue that perceived threats to security may cause irrational actors to allocate more time than necessary to the practice of Marksmanship, i.e. The Reds May Be Coming so I will spend more time preparing for combat. In these instances a Militia may fulfill the utility of granting security, but that security is from an imagined rather than real threat.
9.11.2008 7:40pm
Frater Plotter:
Bruce --

The point is that the militia don't merely "occasionally take over plane flights", but rather that the militia occasionally act in the national defense, as exemplified on Flight 93. Nobody had to "call up" the militia to prevent the terrorists from using that airplane to blow up the White House or the Capitol. The unorganized militia acted to prevent the attack, on its members' own will and initiative ... and at a time when official, "organized" response was not competent to prevent the attack.

As Mr Barnett noted, the Army, police forces, and organized militia cannot be everywhere. But the unorganized militia, pretty much by definition, are everywhere. The better the unorganized militia are equipped and prepared to act in the national defense, the safer we all are.

One lesson of 9/11 is that when the excrement interferes with the rotating blades, the government cannot protect you. Ironically enough, the militia of Flight 93 protected the government (the terrorists' intended targets) on a day when the government failed to protect the citizenry in New York.
9.11.2008 7:40pm
BlackX (mail):
<blockquote>
As this is not just a militia, but the Militia of the United States I think it requires direction from the State or a representative of the state to actually qualify. As the passengers did not receive state sponsorship or state direction and acted independently, I do not think they could be called a Militia of the United States.
</blockquote>

What is "this"?

The Code as quoted uses lower case for "militia". I don't get the distinction you're trying to make. Seems to me that one is a member of the militia just by meeting the qualifications. And whence comes the idea that state direction or "sponsorship" is necessary?

I immediately thought of how many of the lower-case militia on April 19 were acting quite independently and without state sponsorship. Just as presumably most or all of those who acted on Flight 93 were.

Now I'm not clear on what would constitute a militia action as opposed to an action where some or all of the members were militia. But I would think, at the very least, it would be an action in defence of country, which the Flight 93 action certainly was.
9.11.2008 7:52pm
James Gibson (mail):
I wish everyone to note that the militia can't be obsolete; That is if this country intends to have a military draft. Regardless of the political bunk one gets from the Selective Service bureau, we are not conscripted from the "Grand Body Populace." As was debated in the 1814 Congress (recognised in the SCOTUS ruling of 1918 on the draft)we have always conscripted troops for the Army from the militia. Per section 75 of the 1916 National Defense Act, following the conscription of the National Guard, men from the unorganized militia will be formed into reserve battalions, commanded by the ROTC and JROTC cadets. These men would then be transferred to regular Army units to replace men killed or injured to maintain force strength. Further, if congress approves, the Battalions can be formed into entirely new Army Divisions to expand the size of the force.

In addition, when the Guard is conscripted, under Federal law as amended in 1940, the States can activate a State Defense force to replace the guard in its state functions. These State troops have in the past been made up of retired guardsmen (Horatio take note), men too old for government service (the draft) and JROTC cadets in their senior year of high school (one year too young for federal service). I state in the past because until 9/11, the last time State Defense forces were activated was the Korean war.

Officially the size of a SDF is not limited by Federal law, but since World War two the States have limited the war-time size to 1/2 the size of their Guard units. This was because under Federal law the government will only supply enough arms to equip a force 1/2 the size of the guard (the States are such cheapskates). One should note however that Federal arms supplied must first be declared substandard or obsolete to Federal needs. Thus, if there are no such arms in Federal store there will be no arms supplied. Further, as occurred in WW2, if the government needs arms they can and will appropriate SDF arms for Federal service. Thats why in WW2 California SMR companies were called rifle/shotgun: the Fed seized all California Springfield 1903 rifles for Federal service.

One function of State Defense troops is to secure any Federal National Guard arms left in the State. Since 2002 the California State Military Reserve has been performing this required function as the Guard has been in Afghanistan or Iraq. Of course it performs these functions at its federally required "peacetime" strength of 1/10th wartime because to raise the force to full size requires a declaration of war by Congress. Further, the SMR members are not armed, per a State law requested by the Police in 1989 that bars the SMR from bearing arms unless Congress declares war. This has prevented the SMR members from buying arms as technically allowed by the Assault weapon law as members did during the Korean war when neither the Fed or the State provided arms.

In short, we have a definition of militia which is still used in Federal law for conscription. We also have State militia forces allowed by federal law that can supplement or replace the Guard during time of war. But in peace time (no declaration of war), under Federal law we cannot have anything other then the Guard and the cadre strength SDF. Further the Police have insured that the force cannot be armed unless war is declared and when they can be armed they are restricted by a combination of Federal military codes and State gun laws to essentially the Arms of the civil war.

Yes, we can have a universal militia system like the old 1792 Act tried to make. But we would have to change a number of laws and face down a number of special interest groups to accomplish this. Show me a politician willing to try.
9.11.2008 7:58pm
Sarcastro (www):
Wow that article made me feel Manly and Rugged and proud to be an American.
9.11.2008 7:59pm
ohwilleke:
The notion that these folks were acting in their capacity as a militia is utter tripe.

Unarmed people who happen to cooperate on an ad hoc momentary basis, without any direction from anyone, to stop people from hijacking their plane do not a militia (or even a posse) make.

Either a militia or a posse pre-supposes some connection to state actors, generally by armed people. Moreover, the notion that these individuals saw themselves as defenders of national security, as opposed to merely defending themselves and others from a particularlize criminal act is question. The notion of a "war on terrorism" is largley a post-9-11 conception, and argument has no legal validity in absence of the AUMF enacted after the fact. Peacetime hijackers had repeatedly and always, prior to 9-11 been tried as criminals in the United States, rather than subjected to military justice.

Further, if everyone is a member of a militia, or even if every armed person is a member of a militia, what distinguishes a militia from a criminal gang, and why are criminal gangs not tried by military tribunals.

I have to join in calling the original post nothing more than A cheap effort "to score political points at a moment of great tragedy." It is nothing more and nothing less.
9.11.2008 8:22pm
Crunchy Frog:
James Gibson: as the AUMF has been deemed a declaration of war in all but name, could not the state of California staff the SMR at full wartime capacity provided it wished to provide the funds to do so (insert laughter here) and give it real weapons?

Of course, nothing would stop the national govt from then federalizing the weaponry...
9.11.2008 8:38pm
RKV (mail):
"Any guess how many millions would take weapons training at government expense or even for a modest fee if generally offered?" About as many as now practice marksmanship, except for those who live in areas where the 2nd Amendment is actively suppressed (unconstitutionally I might add) as in Chicago and New York City.

"I think it requires direction from the State or a representative of the state to actually qualify." 10 USC 311 (nor 313) does not require direction from the state for individual membership in the unorganized militia.

"I think that our current militia is not particularly well-regulated or maintained" The missions of the militia are defined in Article 1 Section 8 of the Constitution and no, given the unconstitutional limits which now exist on the right to bear arms the militia cannot be said to be "well-organized" (i.e. mission capable). One of the three statutorily defined missions of the militia is to "repel invasions." Unless and until the repeal of FOPA (Hughes Amendment to be specific) and the repeal of the NFA, perishingly few American citizens own the arms suitable for the mission (i.e. M16s or SAWs).

Mr. Gibson - well said.

All - the Swiss system as currently operating appears similar to the original public meaning (in modern form). Something like that is what it would take to return to a militia system in the US.
9.11.2008 8:39pm
ChrisIowa (mail):
ohwilleke:

Unarmed people who happen to cooperate on an ad hoc momentary basis, without any direction from anyone, to stop people from hijacking their plane do not a militia (or even a posse) make.


Before the Civil War there were numerous militias organized under the auspices of the various state of Iowa. In Iowa these were accepted into the Union army each as a group. (I am most familiar with Iowa but the indications I've seen is that this was the case elsewhere.) These militias were well trained in drill, but did not train in the use of firearms, and their acceptance into the Union Army had to be delayed until arms could be rounded up. So being unarmed apparently does not prevent being a militia.
9.11.2008 9:13pm
Andy Freeman (mail):
> Of course, nothing would stop the national govt from then federalizing the weaponry...

Not if CA or the good people of CA (as individuals) provided it.

The NG is a federal creature because the feds pay for it, even if they do organize it along state lines and delegate to governors. (Of course, said delegation can be revoked.)
9.11.2008 10:04pm
Cornellian (mail):
Interesting point above re difference in application of the Second Amendment to men versus women, since women weren't members of militias. Any originalists have a comment on this point?
9.11.2008 10:05pm
yclipse (mail):
As is my (perhaps peculiar) wont, I went in search of the source, expecting it to be some statute passed at around the time of the Founding. I was wrong. LII's notes feature discloses the source as statutes dated 1956, 1958, and 1993. Does that mean that there are no pre-1956 statutes specifying this definition? And, I wonder, what led Congress to adopt this formulation in 1956?
9.11.2008 10:53pm
Jon Roland (mail) (www):
Cornellian (mail):

Interesting point above re difference in application of the Second Amendment to men versus women, since women weren't members of militias. Any originalists have a comment on this point?

You are confusing the general militia (everyone having a social duty to defend the community) with the mandatory militia (the subset subject to penalties for failing to respond to a call-up). Women (and children, and officials) are in the general militia (in the sense of those who engaqe in militia the defense activity), but not the mandatory militia. Don't expect the Founders to make the distinction explicit. In those days words were used with multiple meanings that were to be filtered by context.

The Second Amendment was more about defense activity than those who might engage in it. Substitute "defense activity" for the word "militia" wherever it appears and the meaning will emerge.
9.11.2008 11:47pm
Jon Roland (mail) (www):
Andy Freeman:

The NG is a federal creature because the feds pay for it, even if they do organize it along state lines and delegate to governors.

More than that. There is dual enlistment. Every person who joins the Guard simultaneously joins the Army (or Navy or Air Force). That means that even when they function as detached state guardsmen, they are always in the military, and therefore not militia.
9.11.2008 11:57pm
Harry Eagar (mail):
Over the years, I have read a lot of silly and hysterical things about the right to have firearms, but this post is by far the silliest.
9.12.2008 1:11am
James Gibson (mail):
Crunchy Frog asked "as the AUMF has been deemed a declaration of war in all but name, could not the state of California staff the SMR at full wartime capacity provided it wished to provide the funds to do so (insert laughter here) and give it real weapons?"

Answer, "No". The regulations in Title 32 section 109 deals with the maintenance of other troops. Everything rests on the legal definition of "in Time of Peace." If the US government formally decides that we are at war then the controls on force strength is removed. But Congress will not do it and having an authorization for the use of military force is not enough. By the way, as long as Congress doesn't, its obligations to assist in the support of these troops under Federal statue is non-existent.

Also, under State law passed in 1989, the State Defense force cannot be armed unless Congress declares war. Thus, unless Congress performs the formality of making a declaration the SMR is prohibited from bearing arms even when on duty required under Federal law. And since this law was pushed by the Police unions the Sacramento legislature would have confront them if it was to change its law. Anyone other then me heard of the Prison Guards union planning to recall Arnold because they don't like his pay proposal.

Furthermore, even if one of these prohibitions is lifted, unless the Federal government supplies the arms, the State is prohibited under Federal statute from supplying automatic weapons under the terms of the Federal machine-gun act as amended in 1986. Also, under the terms of the State Assault weapon and Machine-gun laws these styles of weapons are also prohibited because the State formally declared in said laws that these weapons were not the arms of the militia. THus the State could prohibit the arms while not violating the 2nd amendment as it was viewed in 1989.

Oh, and Andy Freeman, the Federal Government can seize anything in the name of a National Emergency. The owners of seized items are paid for them in the form of money or a government IOU. Examples of this go all the way back to the Revolutionary war.
9.12.2008 4:47am
James Gibson (mail):
Oh, and I did make a mistake in my first post. The section of the 1916 National Defense act involving the formation of reserve battalions is section 79 not 75.
9.12.2008 4:50am
Happyshooter:
More than that. There is dual enlistment. Every person who joins the Guard simultaneously joins the Army (or Navy or Air Force). That means that even when they function as detached state guardsmen, they are always in the military, and therefore not militia.

Not quite. 99% of the time a guardsman is on state and federal duty at the same time, MTUAs (drills), annual training, active duty on federal orders (Iraq or being security guards in Washington or an airport).

Every once in a while, though, they are solely on state duty and thus state militia only. A prime example is in Michigan. Small lakes near Detroit surrounded by the wealthy would become weed choked. The governor would want to use guard equipment to clean it out on the cheap for her supporters, but the feds would decline to pay for AT time.

She would order a unit to state duty and do the work.

After Sept 11, the governor felt that border checkpoints were not properly staffed with inspectors, so she called guardsmen to state duty to 'assist' the federal employees. Both of these ended up being real messes, because several guardsmen were injured and unlike federal duty-- medical care was very spotty and disability pensions are not available.

What is really weird is that Michigan's Uniform Code of Military Justice only provides for a max penalty of $200 or 200 days in prison, but otherwise mirrors the federal code in all its crimes. No one has tested if a line of duty crime must be prosecuted under the uniform code as opposed to the penal code while on state duty.
9.12.2008 11:12am
Melancton Smith:
ohwilleke wrote (and a few others wrote similarly):

Either a militia or a posse pre-supposes some connection to state actors, generally by armed people. Moreover, the notion that these individuals saw themselves as defenders of national security, as opposed to merely defending themselves and others from a particularlize criminal act is question.


JNHeath wrote:

I'm sorry, but the passengers who banded together and took action on Flight 93 were not a "militia". They were not even a "posse". Citing the federal militia statute here sounds like point-scoring off of a tragedy to make a very tangential RKBA argument seven years ago.


DCH:

As this is not just a militia, but the Militia of the United States I think it requires direction from the State or a representative of the state to actually qualify. As the passengers did not receive state sponsorship or state direction and acted independently, I do not think they could be called a Militia of the United States.


I think alot of people need to educate themselves about the origins and functions of the militia.

I doubt that the populace of a frontier community would sit around waiting for the government to initiate their defense of the community in the event of an attack.

Sure there are instances when the militia is called up and put under state control, such as in response to the Whiskey Rebellion and Shays Rebellion.

At any rate, our Constitution currently requires that the militia exists.

Remember, 'no militia, no free state'.
9.12.2008 11:25am
CCMCornell (mail):
If I wanted to learn more about a law in the US Code, like Section 311 of US Code Title 10 quoted above - how could I go about doing so? I googled it, but only found more places that quoted it.

I'd be interested in seeing when the law was passed and circumstances surrounding it, like maybe a history of the bill that it came from, debates regarding it, and so forth.
9.12.2008 11:35am
Andy Freeman (mail):
> Oh, and Andy Freeman, the Federal Government can seize anything in the name of a National Emergency. The owners of seized items are paid for them in the form of money or a government IOU. Examples of this go all the way back to the Revolutionary war.

The revolutionary war predates the 4th amendment.

The "national emergency" argument turns on their being (1) an emergency and (2) a plausible argument that seizing the stuff addresses said emergency.

The feds have enough guns.

And, if you take the pre-Heller "state's right" argument seriously, states can arm their militias as they please. If states can't arm their militias and their people can't arm themselves, whose "right to keep and bear arms" is protected? (FWIW, I think that the feds have authority over state govt militias and the second doesn't come into play for them.)
9.12.2008 12:02pm
FWB (mail):
The definition of what the militia is is not an authority held by Congress. First, if one allows that Congress may define the militia as males between 17 and 45, one must allow that Congress may define militia in any manner Congress should choose, i.e. defining the militia to be children under the age of 5 and men over the age of 80.
Second, if one allows that Congress may define "militia" then one allows that Congress may define any or all terms in the Constitution. This makes the document moot. Third, Congress is subordinate to the Constitution and according to fundamental law theory, as expressed by Hamilton, the subordinate cannot define the superior.

The power to organize the Militia does not confer the power to determine membership. The wording admits that the Militia pre-exists the Constitution and merely gives Congress the authority to take this pre-existing entity and organize those in it. Nowhere is an "unorganized" Militia supported in the Constitution. The idea that the NG is the organized part (US v Perpich, i believe) flies in the face of the discussion during the writing of the Constitution wherein it was offered three times to have a "select" militia and it was three times defeated. The concept of the Militia was that it is all persons capable of keeping and bearing arms. In current times, men and women of a wide range of ages are capable of performing the tasks, keeping and bearing Arms, required of the Militia.

We are ALL the militia, men, women, and even teens (boys as young as 13-14 served in the RW) and the government has no authority to eliminate any of us who are able to keep and bear Arms from membership.

Concerning the unconstitutionality of the suspension of any constitutional provisions under any circumstances, see Ex parte Milligan (1869).
9.12.2008 2:37pm
James Gibson (mail):
Andy, I am only noting historical facts. The government has in its history taken arms and other military supplies from both States and Individuals during previous (declared) wars. As to the Feds having enough guns, by who's standards and where are they. Records show the Clinton Administration between 1993 and 1996 disposed of 830,000 military rifles from the Federal reserve. A decade late, at the height of the Iraq war, reports were coming in of troops doing patrol duty with handguns due to a shortage of rifles.

As for the States right argument, keep in mind it works both ways: the States has the right to arm their militia as they please or not arm them as they please. As State Speaker Willie Brown stated in a public Letter in 1989, the 2nd amendment doesn't say how you are armed. Thus, Under States Right, in California the SMR is unarmed, the common militia is prohibited Assault rifles, but retired Police who have no military obligation have unlimited access to Assaults and 50 cals for their Sporting and recreational value.
9.12.2008 2:55pm