The Militia

From TitanoWiki

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive."--Noah Webster

1 What is the Militia?
2 Constitutional References
3 Militia References
4 Constitution Resources

What is the Militia?

“If you wish to converse with me,” said Voltaire, “define your terms.” So let us then define our terms as we embark on this discussion.

Two quick definitions of the Militia

Armed forces raised locally to protect the citizenry, and may be called upon to serve in a wider conflict as happened in the American Revolution and Civil War.

A group of men who drilled on a regular basis and were considered the community's first line of defense to protect the community as a whole. In most communities, the militia elected its own officers, and the quality of militia varied from community to community. Until late in the Revolutionary War, these men wore civilian clothes to the battlefield.

How is The Militia defined in the Constitution of the United States of America?

While the Constitution is not precisely specific as to the exact definition of The Militia, one has to consider the custom, intent, and usage of the language used at the time of the Ratification. One place where the Militia is specifically mentioned is the Second Article in Amendment to the Constitution:

The Bill Of Rights - Amendment 2 - Right to Bear Arms. Ratified 12/15/1791.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

The Militia is also mentioned in the Constitution at Article One Section Eight (Powers of Congress) at clause Fifteen and Sixteen:

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

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;

To know the meaning and intent of what the Militia was envisioned to be, one should know the prevalent thinking among the Framers. Any number of quotes are sufficient. Some Framers like John Adams leaned toward more government control of the Militia, others away from it. A prevalent view of the day is perhaps best attributed to Tench Coxe:

Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. --Tench Coxe in The Pennsylvania Gazette, 20 February 1788

Is The Militia the National Guard?

Yes, and no. The National Guard is part of The Militia, but that's not the whole story. Just as every grandfather is a man but not every man is a grandfather, so too is the National Guard part of The Militia, but not every Militia is the National Guard.

While many commentators, pundits, and even Congressmen and Adminsitration officials have described The Militia to be one and the same as the National Guard, there is a crucial distinction. This distinction is clearly delineated by none other than the Senate of the United States of America itself, when, in it's 1982 Report on The Right To Keep And Bear Arms, it states this:

That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for the organizing, arming and disciplining the Militia".

The quote "raise and support armies" is directly from the Constitution, specifically Article One Section Eight clause Twelve. The "Provide for the organizing, arming and disciplining the Militia" quote is likewise directly Constitutional, found at Article One Section Eight clause Sixteen. The next sentence from the Senate Report more fully fleshes out the distinction:

This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions."

Read that carefully again: "Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia..." The National Guard, as the domain of the national Congress and under the authority of the Executive, is not limited in its deployment as the unorganized Militia is. One need only look to the 1999 operation in Kosovo and today in Iraq to see that the National Guard can and is deployed overseas. The constitutional militia, in contrast, can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions."

This next sentence from the Senate Report should forever clear up any misunderstanding in the reader's mind:

The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec. 311(a)

Read that again, and note that the National Guard was specifically intended to avoid status as the constitutional militia...

We then logically consult Title 10 (Armed Forces) of the United States Code, section 311 [1]:

10 USC §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.

Am I in The Militia?

Are you able-bodied? Are you male? Are you aged 17 to 45? Are you now, or have you made a declaration of intention to become a citizen of the United States? ...If you are, then you are in The Militia of the United States, by Law. The only question then is: Are you in the organized militia or the unorganized militia? The answer for the vast majority of us who do fit the requirements of 10 USC §311, is that we comprise the unorganized militia.

What about that exception?

Good question. Title 32 of United States Code, section 313 states [2]:

10 USC §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.

As you can see from the Code, the exception has only to do with proscribing limitations of the National Guard, which according to 10 USC §311(b)(1) concerns the organized militia. There is no apparent exception for the unorganized militia, who can be Lawfully called upon "to execute the Laws of the Union, suppress Insurrections and repel Invasions".

What about my State laws?

Another good question. Let us consider for example the Constitution for the State of Arizona. The Militia is defined at Article Sixteen, Section One[3]:

Section 1. The militia of the state of Arizona shall consist of all capable citizens of the state between the ages of eighteen and forty-five years, and of those between said ages who shall have declared their intention to become citizens of the United States, residing therein, subject to such exemptions as now exist, or as may hereafter be created, by the laws of the United States or of this state.

And further, at Article Sixteen Section Two, the organized Militia is defined[4]:

Section 2. The organized militia shall be designated "The National Guard of Arizona," and shall consist of such organized military bodies as now exist under the laws of the territory of Arizona or as may hereafter be authorized by law.

Finally, the Arizona Constitution at Article Sixteen Section Three describes the relation of the Arizona militia to that the of the United States[5]:

Section 3. The organization, equipment, and discipline of the national guard shall conform as nearly as shall be practicable to the regulations for the government of the armies of the United States.

Consult your State Constitution to understand the composition of your local Militia. While you are at it, you might want to research into what, if anything, your State and National Congressmen have done "To provide for organizing, arming, and disciplining the Militia," and if they have done nothing ask them why not.

So what does this all mean?

It means that for the most part what you hear out of the mouths of the pundits, commentators, and the uninformed that the Second Amendment does not protect individual possession of Arms but really means the National Guard is misinformation at best. When someone uninformed makes the claim, it can hopefully be written off as ignorance of the subject. When someone who knows better makes the claim, well, I leave it to you, the reader, to come to your own conclusions of why such a claim would be made.

It is clear then that the customs, usage, and intent of the language of the Constitutional Framers was that a 2nd Amendment guarantee of the Right to Keep and Bear Arms was not intended solely to mean a National guard that can be ordered by a Congress, but a distributed Right retained by the People. Again, from the Senate Report:

Finally, the individual rights interpretation gives full meaning to the words chosen by the first Congress to reflect the right to keep and bear arms. The framers of the Bill of Rights consistently used the words "right of the people" to reflect individual rights — as when these words were used to recognize the "right of the people" to peaceably assemble, and the "right of the people" against unreasonable searches and seizures. They distinguished between the rights of the people and of the state in the Tenth Amendment. As discussed earlier, the "militia" itself referred to a concept of a universally armed people, not to any specifically organized unit. When the framers referred to the equivalent of our National Guard, they uniformly used the term "select militia" and distinguished this from "militia". Indeed, the debates over the Constitution constantly referred to the organized militia units as a threat to freedom comparable to that of a standing army, and stressed that such organized units did not constituted, and indeed were philosophically opposed to, the concept of a militia.

Let's revisit part of that last sentence one more time. The framers "stressed that such organized units did not constituted, and indeed were philosophically opposed to, the concept of a militia."

The National Guard is NOT the unorganized constitutional Militia, nor should it be. Richard Henry Lee cautioned against the reliance on a select militia, when in his pamphlet Letters from a Virginia Farmer to the Republican [6] he wrote:

"by modeling the militia. Should one fifth or one eighth part of the people capable of bearing arms be made into a select militia, as has been proposed, and those the young and ardent parts of the community, possessed of little or no property, the former will answer all the purposes of an army, while the latter will be defenseless."

As if to emphasize this point, the Senate report[7] concludes with the statement:

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.

Don't let anyone bullshit you on this ever again.

Constitutional References

Article One Section Eight Clause Twelve of the Constitution for the United States of America grants power to the Congress "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;"
Article One Section Eight Clause Sixteen of the Constitution for the United States of America grants power to the Congress "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;"
Article One Section Eight Clause Fifteen of the Constitution for the United States of America grants power to the Congress "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"
Article Two in Amendment to the Constitution for the United States of America states that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed".