NOTE: This commentary will be limited to the somewhat unique situation in the United States of America. It should not be seen as a reflection of the laws or customs prevalent in any other country.

Publisher's Note: This article is an analysis of the legal and the logistical possibilities as they affect the American concept of a "militia" as defined by the 2nd Amendment of the US Constitution. The Military Gazette does not take a POLITICAL stance on subjects which we cover but analyzes them from a factual, legal, and intelligence perspective. - W. R. (Bill) Collier Jr. 

One of the oft-quoted mantras about firearms in America is that the right to possess firearms is enshrined in the Second Amendment to the Constitution:

"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."

 

While seemingly straightforward, few clauses in America's foundational documents are interpreted so differently, depending upon the political views of the commentator.

On the one hand, to those who self-identify as "pro-gun", the words are blunt, and to the point: "the People" are not the Government, therefore, their right to "bear arms" neither cannot, nor should not, be limited in any way.

On the opposing side, the more rational view is that a Citizen Militia was all well and good when battlefield weaponry consisted of flintlock muskets and muzzle-loading cannons, but that modern warfare makes civilian militias moot. The less-rational "anti" view goes further, stating baldly that as the Founder's could not conceive of modern small arms - semi-automatic, magazine-fed small arms, in particular - their logic and verbiage was flawed...ignoring the fact, of course, that weapons technology is constantly evolving and changing, even at the writing of the document itself, which is why the generalized term "arms" was used, instead of "musket".

Attempts are continually made to deflect the argument in one direction or another: the Amendment only protects the "right" to hunt; or, that of self defense; or, somewhat bizarrely, that it only applies to the National Guard of the various States. Frequent attempts are made to define the terms "militia", as well as "the people", and "well regulated", most often by resorting to quoting entries in dictionaries or encyclopedias.

In fact, none of these arguments and definitions have any substantive meaning.

What matters in this question, is what the law actually says, in regards to the militia in general, or about the "arms" in question, in particular. For completely different reasons, neither side of the argument wants to resort to actually explaining the relevant laws, because of the implications to both side's most cherished arguments.

While US law at the Federal level may appear (not without justification) to be murky and Byzantine, when it comes to arms, the law is actually quite blunt and clear.

In American jurisprudence, a distinct hierarchy of law exists: the Constitution is at the top, followed equally by the various laws entered into the United States Code (the body of laws enacted by Congress), as modified by various rulings of the Supreme Court.

When discussing the Federal Militia, since the Second Amendment - while seemingly clear and concise - is hazy on specifics, it is important to find any references to the Militia in the US Code. In fact, there are precisely two references to the Militia in the United States Code: Sections 311 and 312 of Title 10, Chapter 13.

While Section 312 is not really related to arms, Section 311, however, is very specific:

 

"(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."

 

While this is definitely a typically-repetitive bit of "legalese", Subsection (b)(2) is what is important: namely, the Unorganized Militia.

While several people have, over the last twenty or so years, tried to "organize the unorganized", not many commentators have really given the subject much thought. There are several aspects to be considered in this pregnant-with-meaning section.

First, there is the rather obtuse wording in the law. In the Tenth Amendment to the Constitution, it is specifically stated that any power not specifically designated to the Federal Government is the responsibility of either the various States, or the People, at large. The wording of USC, 10.13.311 makes no provision for how the members of the Unorganized Militia are to be equipped or trained. As was once pointed out to this author, the Militia Acts of 1792 and 1793 - which were superseded, not repealed, by the Militia Act of 1903 - require the various members of the Unorganized Militia -- i.e., those who are not in the National Guard -- are required by Federal Law to arm themselves for militia duty. Obviously, this is consistent with the Second Amendment.

But what about training? Even combat - as opposed to hunting - when the Constitution was written required more training than simply knowing how to load and fire the weapon. The problem here, is one of money: the Congress simply does not have the money - for any of a host of reasons - to pay for training, and certainly not to pay tens of millions of people to train one weekend a year, much less one weekend a month.

That's what Selective Service or the National Guard is for, goes the argument.

The fault here, lies in a lack of clarity by both Congress and the Army in writing the Militia Act of 1903 (also known as the "Dick Act", after its principle advocate in Congress, Charles Dick of Ohio). Their presumption was that individuals not in the newly-designated 'National Guard' (called, in the original document, the "Reserve Militia"), would nonetheless be familiar enough with firearms in general, that they could be incorporated into the Armed Forces without undo trouble. This began a chain reaction of neglecting the material that the military relies upon for its numbers, that has resulted in the situation of today, where it is considered odd to seek any serious sort of "military-type 'combat' training" outside of enlisting in the Armed Forces.

One of the main reasons driving the current rise of militia groups is that, based on the historical record, most rational people realize that some sort of training in modern combat and/or survival is essential, even if it is "just in case"...This is where the next question, that of actual weapons allowed in the hands of the People, comes into play. A common misconception among the "pro-" side of the argument is that all gun control laws are invalid and illegal on their face. In fact, nothing could be further from the truth.

Again, the law is surprisingly clear on this point.

In 'Aymette v. the State of Tennessee', 1840, the Tennessee Supreme Court ruled that the 'bearing of arms' referred only to its military connotation, in relation to "the common defense", and implied that certain weapons may not fall into this category. In United States v. Miller, 307 U.S. 174 (1939), the United States Supreme Court, citing Aymette, ruled in part that,

 

"...In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense..."

 

The machinations of Miller, 1938 aside (which is a story, in itself), that phrase, "...part of the ordinary military equipment...", is, too, heavily pregnant with meaning. The frankly questionable lack of basic technical firearms knowledge on the Court's part aside, the ruling specifically states that, for a weapon to be considered to fall under the protection of the Second Amendment, it must at least be comparable with whatever the United States military is using at the time.

If that does not currently include an AR-15, the author would dearly like to know what does.

However, there is a flip-side (well, three, to be exact) to this concept:

 

  1. If, legally speaking, the right to bear arms applies only in terms of the national (e.g., "common") defense, then States certainly retain the right to regulate arms at other times -- thus, a State requiring a license to bear a concealed weapon - or any weapon, for that matter - for any purpose other than 'the common defense', such as hunting or self-defense, is perfectly reasonable.
  2. "Ordinary military equipment" implies that equipment that a common soldier would be expected to carry -- while this would certainly include a rifle of a type in common use, as well as handguns (else, why is the military still issuing them?), what about explosive grenades? Or one-man-portable machine guns? Remember, technology advances constantly...What it does not imply, is the "right" to buy something like a tank, or an artillery piece -- or even an atomic bomb, as certain sections of the "anti-" side of the argument breathlessly imply.
  3. In effect, under the Supremacy Clause (Article Six, Clause 2 of the Constitution), this renders virtually all firearms laws defined as "anti-gun" - at all levels of government, from Federal to municipal - void on their face.

 

...Cue the "squealing brakes" sound effects -- where the heck did #3 come from?

While the Supremacy Clause has been roundly abused over the years, no one seriously disputes the ultimate supremacy of the Federal Government's role in "providing for the common defense"...And that brings us back to a fundamental aspect of the question that the various militia groups of today, as well as firearms owners in general (to say nothing of the anti-gun community), are not considering.

At the heart of the American Federal System of government, is the concept that the various States of the Union are actually independent nations, in a governmental sense, who have voluntarily surrendered portions of their sovereignty -- such as the ability to sign binding treaties with foreign powers, as well as the ability to make war independently, among others -- to the Federal Government, for the betterment of the whole.

Pertinently, all States have the undisputed right to maintain their own military forces (the National Guard, Air National Guard, and various "official" State Militias, like the Texas State Guard), exclusive of the Federal Government. However in time of war, or some serious national distress, all of those forces are to be placed at the discretion of the Federal Government, commanded by the person of the President, acting in their role as Commander In Chief.

This is an immutable law, at the heart of American system.

Thus, while a State may decide that it does not want anything more than its National Guard formations, that State has no power to restrict the operation of the Militia of the United States, as described in USC, Title 10, Chapter 13, Section 311, quoted above. It may certainly regulate what its citizens do with firearms in any other context, but it cannot bar them from bearing arms in connection with the common defense.

For those who desire to laugh at "country bumpkins, out playing army", the author cannot do more than point to the latest news reports of citizen militia forces in daily combat around the world. Untrained troops die in large numbers in war. The better the training beforehand, the better the soldier's chances of survival should actual shooting start.

Although it should be self-evident, it must be stated: you cannot train with a weapon if you do not possess that weapon.

But is that all there is to the question? Not at all.

Citizen Militias in the United States have a very poor - and very much undeserved - reputation. In speaking to most members of various groups, an inquiring person may detect what they perceive as a varying (and usually, very high) level of hostility and distrust towards the Federal Government, a hostility that - to the uninitiated - may seem to swerve into extreme 'conspiracy theory' paranoia.

Unfortunately the hostility, and even paranoia, towards the Federal Government and various other groups perceived as "Left-wing", politically, by the groups in question is well-deserved.

Beginning in the 1980's, the calls for ever-stricter gun control began to grow ever more shrill and hysterical, calls that were actively encouraged by a Press hungry for the Next Big Story. These calls quickly descended to the level of fabricating non-terms (such as "Assault Weapon", for one) for their shock effect. The result was an ever-darker portrayal of anyone who had anything to do with weapons in general, and firearms in particular, as people who were potentially dangerous not only to themselves, but to the general population of the planet.

The Federal Government - as well as several State, and many Local governments - in most cases, simply piled fuel onto the fire, lumping "patriots", "militias" and "gun owners" into the same category as 'white supremacists' and murderous religious cults, culminating in the issuance of the "Project Megiddo" document, in 1999, that specifically stated these accusations, all of which had little to no foundation, whatsoever, as unadulterated "fact".

To the "American on the street", who simply read the Constitution and felt that they should do more for their country, this strange attitude was seen as abusive, bizarre, contradictory, insulting and threatening to them, in the extreme. Coupled to a spate of arrests in the 1990's and 2000's of "potential terrorist militias", such as the so-called "Viper Team" and the "Hutaree Militia" where most, if not all, of the conspiracy and sedition charges were ultimately dismissed, was seen - not unreasonably - as a series of attempts at direct and pointed intimidation by various government agencies, directed against patriotic Americans as a whole.

In this, the United States Government, at nearly every level, appears to have deliberately alienated the largest group in the nation that it could rely upon in time of dire need.

This is not hyperbole.

As just a single example, prior to the attacks of September 11, 2001, little serious consideration was given to the possibility, security or effect of a major, dedicated, physical attack on the power grid of the United States. While a few security professionals did warn of the grid's vulnerability, this author among them, their numbers were very few, and they were not, for the most part, taken seriously.

However, as seemingly random shooting events at power stations in California began to increase in number, an almost palpable fear began to set in, as members of the government began to understand both the ramifications of a major, successful attack on the grid, and on the essential impossibility of the government to protect that fundamental lifeline of the nation, in any meaningful way -- there are simply not enough troops and police, even if all Reserves and National Guards were called up full-time, and all active duty troops overseas were recalled, to effectively guard even a significant percentage of power transfer station, to say nothing of the power lines themselves. Such a task would require literally millions of people to undertake...

It has been said that the "American Solution" to any problem is to throw money at it, until it goes away. There is some truth in this. What planners and advisers need to consider, is that most of the militia groups in the United States do not simply acquire weapons and ammunition, but try to assemble - usually unsuccessfully, for lack of clear guidance - the "tail" to support themselves, at least for a time. The cost of matching funds for militia units and individuals is almost laughably small, especially when the individuals themselves are making the initial purchases of supplies.

But this question goes much deeper.

Any organized force is a multiplier of effort, over a simple disorganized mass. It s for this reason, that the National Guard and occasionally the active military are called upon to assist in major-disaster relief efforts: other organizations, from churches and individuals to the Red Cross and FEMA, simply do not have the integrated and integral capabilities of the military...And there are literally tens of millions of Americans who would happily and openly step into a role as a renewed - and armed - 'Civil Defense' organization.

Were it not for the bizarrely hostile reactions of their own government to the very idea of the concept.

The substantial fear of armed, equipped and hostile political and sectarian armies, of the type that have long plagued the rest of the world, is a very valid and real one. Yet, the continual demonization of a vast mass of individuals over the actions of an unassociated few - a mass that, on balance, is more than willing to defend the country using their own funds and equipment - even as threats, both internal and external, are increasing daily, is an untenable position to bitterly cling to.

The Federal Militia of the United States is a vast and completely untapped resource, a resource which, even if left to its own devices, is capable of rendering serious aid to all levels of government in times of both war, terrorist attack or natural disaster; a force whose monetary costs to improve their capabilities are microscopically small, is something that the Federal Government can no longer ignore.

The militia within the United States can be self-policing, alerting and identifying real internal threats within its nascent structure to authorities on a timely basis; it can protect vital areas of the country from asymmetric attack; and can materially and significantly assist in relief efforts, among many other functions -- but only if the government embraces it, something the Government should have been doing all along.

The process is a simple one to implement -- but only a truly dynamic, non-partisan leadership will be able to harness this resource, by ending the entrenched and ongoing demonization against it.

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