Militia Act of 1792
RKV suggested a reference to the original militia statute adopted by the First Congress might be interesting, with regard to showing what "militia" meant to the framing generation. Here's the Militia Act of 1792, and the Calling Forth Act. The former's relevant portion is:
"An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States.
I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside....
That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes."
The Act remained on the books until 1903, when the Dick Act replaced it with the language now found in 10 U.S. Code sec. 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."
David you are most kind. A point that I suggest should be noted. Gun laws (like the Militia Act) in the founding period required ownership of military grade weapons by citizens, by contrast, modern gun laws seek to disarm the citizens (the unorganized militia) in favor of the police, National Guard (aka the organized [or select] militia) and the Army.
Posted by: RKV at June 22, 2005 07:19 PM
I have always wondered why no one in recent years has taken up a lobbying campaign in Washington, DC, to re-enact in some kind of way the Militia clauses of the Constitution. Not out of duty, but out of financial gain.
From how my non-lawyer eyes see it, there are two sources of potential lobbying dollars defined in the Constitution as it relates to national defense: the Army/Navy clauses, and the Militia clauses.
Without a doubt, there are lobbyists galore in DC pining for a part of the billions allocated under the Army/Navy clauses. There isn't a single lobbyist that I know of that advocates spending on the Militia side.
Now I know the main reason for that is the Militia clauses have been inactive since 1903, but they are still a valid part of the Constitution. I would think there could be millions of dollars out there that could be used/siphoned off in some kind of way under the Militia clauses in today's homeland security environment, if only a group would work for them within the confines of the Congressional appropriations process.
--Poshboy, Washington, DC
Posted by: Poshboy at June 23, 2005 10:40 AM
"Gun laws (like the Militia Act) in the founding period required ownership of military grade weapons by citizens...." You can see gobs of colonial and early Republic militia statutes here.
Posted by: Clayton E. Cramer at June 29, 2005 01:35 PM
"Gun laws (like the Militia Act) in the founding period required ownership of military grade weapons by citizens...."
The rifles of the period were the same rifles that would be used for hunting and sport. If citizens were expected to own "military grade weapons", why where cannon not mentioned? Perhaps it was intended that the militia would be a ready force for quick local deployment; with the military available for the heavy firepower.
Besides, if citizens are expected to own "military grade weapons" where does it end? How about a MK 15 Phalanx home security system?
Posted by: Kenny R. Brown at September 13, 2006 11:51 PM
John Montgomery Newell was captain of his militia company at Bronston KY in 1816. His dad and governor Isaac Shelby both served at the Battle of King's Mountain in 1780. They knew first hand of the difficulties of an all volunteer self-equipped unit. Kentucky passed laws to supplement the militia with funds from land sales. Wayne Co and others enrolled all property owners by the militia company they supported. JM Newell, a vet of the War of 1812 with Micah Taul, drilled his company and encouraged consistent uniform rifles, bullets, bayonets, etc providing to those who could not afford to equip themselves.
Posted by: Fred Weyler at August 2, 2008 11:25 AM
In reply to Mr. Kenny Brown above: I would like to point out sir that it is a VERY good thing that the drafters of our articles of government did not share your views; as we would have had to contend with a British-controlled New Orleans for much of the 1800's and perhaps even in to the modern day.
I would point out to you that the drafters of the Constitution did indeed intend for private citizenry to have access to artillery and other heavy weapons; as of course the citizens of a representative and free nation must necessarily be able to exercise some military autonomy in defense of their communities (either from external aggressors or internal, as the case may be with a tyrannical government).
The founders, at least those of whom looked upon the federal beast with a jaundiced and suspicious eye, never intended to create a central power-elite in the halls of the federal government vested with a total monopoly on military force. As that psychotic little Red-Commie dwarf Mao said, "Political power grows from the barrel of a gun".
But back to the issue I alluded to earlier, I would point out that General Jackson's near-run but brilliant defense of New Orleans was chiefly made possible due to the numerous pieces of dug-in artillery at his disposal, and the finely trained artillery-men at his command.
And may I ask, sir, do you know from whence many of those cannons and well-trained crews came from? Why, from Jean Lafitte of course, a private... ahem... entrepreneur of a sea-borne nature that contributed large numbers of men to the defense of the embattled city, provided guns and crews for several artillery companies, and offered highly trained and very well regarded artillery-men for the American war effort on land and at sea.
If it were not for his privately owned ships of war, trained crews, and extensive collection of military hardware, then the near-run defense of New Orleans would have easily turned in to an unfortunate rout of the American forces.
As an aside, our constitution even has provisions for hiring private ships of war to supplement our naval forces in times of war.
If you study the civil war, you will quickly find that at the beginning most of the standing militias and state defense forces in the South were equipped by the donations made by local businessmen. Private charity and public service by upstanding citizens provided a significant portion of the military hardware used by the South in the opening days of the war. And yes sir, those private men were perfectly able to go out and buy their own damned canons, if they were able to scrape together through donation and charity the enormous amount of money required.
It was not until the late 1930's that the federal government even entertained the idea of restricting private access to weapons. If you actually read the findings in U.S. v. Miller, and note that neither the defendant nor his attorney showed up for the trial, you will quickly realize precisely what the justices meant when they said: "We have been shown no evidence that would lead us to conclude that a short-barreled shotgun is a military weapon, and hence cannot conclude that it is protected by the second amendment." The justices believed, rightly, that the private citizens of our nation had a right to possess military weapons.
But you bring up an interesting conjecture, the question: "How should this bit of historical background and political theory influence our modern world?"
Well, I tend to trust my fellow man to pilot dangerous machines past me at immense speeds day in and day out. If I'm willing to let Grandma send her Lincoln Continental screaming down the interstate carrying with her enough potential kinetic force to turn a small cow (or a gaggle of school children) in to a chunky red mist, then I don't see how much more harm could be done by letting her play with an M203 grenade launcher on the Fourth of July.
Also, being a strong adherent to laissez-faire politics, I can't say I'd have any objection if Bill Gates wanted to spend the lion's share of his fortune just so he could park a fully-loaded F-15 fighter jet on his lawn. And, sir, since you pointed out the downright disturbing possibility that your neighbors might start installing Phalanx air and missile defense systems on their property, I have to ask, do you live near so many multi-billionaires that this would even be a physical possibility? Arguments that touch upon the absurd, such as the threat of privately owned nuclear weapons, are easily countered by the simple reality of economics. Any person who could afford to produce or purchase a weapon of mass destruction would likely be able to purchase the nation in which you reside (or at least several of your less-prosperous neighbors). In that event, practicality would dictate that said persons could do more damage to you and your society by buying your politicians and media organizations *coughSOROSBUFFETcough*, pardon me... allergies acting up again.
My point is that all in all, we and our fellow citizens trust each other daily around devices which could be used towards evil ends. We trust, in these circumstances, because these devices are not inherently evil, and while capable of great destructive force if misused (capable in some instances of crippling entire communities, as evidenced by the case of a disgruntled man who went on a rampage with a bulldozer) these devices are powerful tools to bring about the goals of our society.
Frankly, sir, I'd rather live in a free society based upon the principles of trust and duty than a paranoid and furtive totalitarian society based upon the shared fear that some individual might misbehave.
I doubt I'd find much difference in running from a lunatic with a bulldozer than I would running from a lunatic with a tank.
Posted by: Chris at January 27, 2009 08:59 PM