In USA Today.
"Even short of revolutions and coups, the militia had a different character in ordinary law enforcement than professionals possess. If called upon to enforce an unpopular law, or to enforce the law in an oppressive or unpopular way, the militia could drag its feet and fail to perform. (In this sense, the militia was like a jury, which is free to acquit even a guilty defendant if it thinks conviction would be unjust. In fact, Yale Law Professor Akhil Amar has likened the militia to jurors with guns because, like the jury, it was an institution made up of the people, through which the government must act, and one not susceptible to the kinds of corruption besetting professional institutions)."
"But although the militia survives in vestigial form in the statute books, as a functional institution, it no longer exists. For law enforcement, the militia has been replaced by professional police, with SWAT teams, armored vehicles and Nomex coveralls; for military purposes, the militia has been replaced by the National Guard, which despite a thin patina of state control is fundamentally a federal military force."
"But this departure from the system the Framers set up has encouraged more intrusive law enforcement at home, and more military action abroad. So I'll ask you: If a well-regulated militia is necessary to the security of a free state, then are we insecure? Or unfree? Or both?"
PJ Tattle has a few thoughts.
I've received several emails pointing out that, with regard to statements that the current health care bill is the first to require citizens to purchase something, the 1792 Militia Act required every male of military age to have a musket and ammunition, which was roughly equivalent. So indeed it is not unprecedented, altho most of its backers would not want to invoke requirement that every male of military age prove they had at least one gun!
UPDATE: one of the comments states that Prof. Saul Cornell wrote that the Militia Act was abandoned, on a date two years before it was passed. I didn't recall reading this anywhere, contacted him, and he doesn't recall having written it, either, and thinks it likely that someone else is being confused with him. Could the commenter take a second look and see what it was?
Robert Churchill, an EXCELLENT historian (we cited him several times in our Heller brief), has out a new book on the militia movements. I put it in the plural because he documents how the recent movement fits into the long term historical context. The title is "To Shake Their Guns in the Tyrant's Face: Libertarian Political Violence and the Origins of the Militia Movement."
UPDATE: Here's the U of Michigan Press description page.
Amazon listing is right here.
Was inspired to a separate post by a comment from J. Norman Heath, who indeed wrote "the" article on the issue, "Exposing the Second Amendment" 79 U.Det. Mercy L.R. 39 (2001). He examines early Supreme Court decisions, and concludes that the Court left the States with very little in the way of power. Maybe some, if Congress did absolutely nothing. But once Congress acted, no matter how inadequately, its power became near-absolute, with States able at most to enforce the Federal legislation (and some Justices thought even that was too much).
Remember that historically the militia was to be the mainstay of national defense. As Madison said in Federalist 46, we'd have 25,000 troops at absolute max (in practice, we had more like a thousand or two), and 600,000 militiamen. The standing army would hold off an invader until the militia could rally and do the real fighting. You wouldn't want part of your main defense establishment carrying .65 muskets and others .75 caliber, or one part trained to one drill book and the other trained to another that had different orders, one organized into 1600 man regiments with two battalions and another with 1000 man regiments and no battalions (OK, so they had that in the Civil War, regular vs. volunteer regiments).
Question: might the unorganized militia today be in the state that the Court mentioned when it said that a different case would be presented if Congress entirely failed to act? At the moment, Federal legislation defines who is in the unorganized militia, and as I recall provides for its calling out, but gives it no standards for armament, officers, organization, or training.
USA Today reports:
"Facing tighter budgets, law enforcement agencies across the country are increasingly turning to civilians to respond to some calls that sworn officers and deputies are usually responsible for.
That means people calling 911 to report a traffic accident, a burglarized home or a stolen car may be greeted by a civilian in a polo shirt instead of a gun-toting officer.
"It hasn't been universally adopted throughout the country. But most areas have at least thought about the alternative and are more open to it now because of the economy," said Richard Brady, president of the Palo Alto, Calif.-based Matrix Consulting Group that has worked with more than 250 law enforcement agencies.
The idea of using civilians, who require less training and are less expensive than sworn officers, to respond to minor police calls has been around since the late 1980s."
Sounds like a plan to me. In my life, I've reported a burglary, an attempted one, and a theft from a car. In all. I had likely fingerprints. In no case were they able to actually send an officer, or to take the prints (even when, in two of the cases, I offered to bring the material to be fingerprinted down to the central police station). I assume it was simple overload: too many thefts and too few folks to investigate them.
An interesting historical find. A roster of (I would gather) State-issued militia weapons. The militia traditionaly turned out with whatever they had, but given the supply problems created by the Civil War, it looks as if State governments issued militiamen whatever they could find.
Austrian, British, Prussian and US muskets, smoothbore and rifled, in a variety of calibers, shotguns both single and double barrel, Burnside cavalry carbines, 800+ "squirrel guns," and one so obscure I'd never heard of it, the Delvigne or Garibaldi musket (so named although it was an Austrian design). Data on that arm here.
There's a bill that has been introduced in AZ to create a volunteer state defense force, under State control. Here's the story.
Hat tip to Robert Gallagher of 2nd Watch.
Professors Glenn Reynolds and Brannon Denning have a William and Mary Bill of Rights Journal article on the subject, well worth reading.
The core theme is that the communitarians (who seek to revive the sense of community, as separate from government and from the isolated individual, a popularized version being Hillary Clinton's "It takes a village to raise a child") tend to be anti-gun because it's, well so nasty. But in fact, throughout most of American history, communitarianism centered around the compulsory militia. It wasn't people without callouses turning out to build Houses for Humanity, it was most of the adult male population turning out, with firearms, to organize, drill, and prepared for group defense if the worst should come to pass. (The professors have an interesting invented dialogue, which I'll put in extended comments). It's a good read, and I'd urge downloading it.
From the City Journal. A few segments:
"For the last 40 years, government policy in Britain, de facto if not always de jure, has been to render the British population virtually defenseless against criminals and criminality....
On April 21, for example, even the Observer (one of the bastions of British liberalism responsible for the present situation) gave prominence to the official report into the case of Anthony Rice, who strangled and then stabbed Naomi Bryant to death.
Rice, it turned out, had been assaulting women since 1972. He had been convicted for assaulting or raping a total of 15 women before murdering Naomi Bryant, and it is a fair supposition that he had assaulted or raped many more who did not go to the police. In 1982, he grabbed a woman by the throat, held a knife to her, and raped her. Five years later, while out of prison on home leave, he grabbed a woman, pushed her into a garden, held a knife to her, and raped her for an hour. Receiving a life sentence, he was transferred to an open prison in 2002 and then released two years later on parole as a low-risk parolee. He received housing in a hostel for ex-prisoners in a village whose inhabitants had been told, to gain their acquiescence, that none of the residents there was violent; five months after his arrival, he murdered Naomi Bryant. In pronouncing another life sentence on him, the judge ordered that he should serve at least 25 years: in other words, even now the law has not quite thrown away the key."
[Hat tip to Don Kates}
It's a 2001 article, but still worth reading.
According to there is a UN meeting relating to gun control laws set for later this month.
I've been doing some research on the legal origins of the two, and found some tidbits.
The present federal definition of militia (10 USC 311) as including all able-bodied males 18-45, and women in the Guard, divided into the Organized Militia and the Unorganized Militia, originates in the Dick Act of 1903 (32 Stat. 77): "the militia shall consist of every able-bodied male citizen .... who is more than 18 and less than 45 years of age, and shall be divided into two classes--the organized militia, to be known as the National Guard of the state ... and the remainder, to be known as the Reserve Militia." (Note effect on the NG=militia argument: the NG is only part of the militia). Certain federal benefits were granted, but only to NG units.
The 1903 Act retained the power of the President to call out the militia (including the unorganized) in event of invasion, insurrection, or to execute the laws of the Union (the three purposes for which it could be called out under the Constitution).
Then came foreign troubles -- first, the raids of Pancho Villa. In 1912, the Attorney General ruled that the militia (including the Guard) could not be sent outside the US. The three constitutional allowances for calling up the militia had been selected to include only things do-able inside the US. So how do you use the Guard for foreign duty?
The 1916 Act, 34 Stat. 166, 210-11, provided for simply drafting the National Guardsmen, and provided that upon being drafted their service as militia were terminated. That was done in WWI, to the great discontent of the Guard, since units were broken up. (Note the effect on NG=militia: in this case, the moment the Guard were called up, they ceased to be even part of the militia). The 1916 Act also created the concept of "federal recognition" of Guardsmen; to be eligible for federal benefits a Guardsman had to be accepted by federal authorities. (The 1920 Act, 41 Stat. 759, 784, fixed a problem created--namely, the NG ceased to be state militia when called up, which meant that when the war was over they were done with their NG duties even if their NG enlistment had not run out. The 1920 Act provided that States could require that they finish their enlistment). Note again the effect on NG=militia; from 1916-1920 Congress asserted the power to simply, and permanently, remove Guardsmen from state militia status.
Then came the 1933 Act, 48 Stat. 153, 155. This provided that NG officers were to be commissioned in the Army of the US, and that the NG of the US "shall be a reserve component of the Army of the United States...." Officers of the Guard were to be appointed by the President (the Constitution says appointment of militia officers is reserved to the States). It allowed NG officers to be terminated by a board appointed from the Army or NG as the Secretary of War might direct. The Militia Bureau of the Dept of War was renamed the National Guard Bureau. Drafting of Guardsmen was replaced by a Presidential power to call up Guard units, which would then cease to be part of the NG of their state.
In short: pre-1903, National Guard had no particular Federal legal status as such. It was a title of certain units (which became popular title for organized militia after Lafayette's visit to the US in the 1820s, he having organized units by the name in France). 1903, it is recognized, but only as part of the militia of the US. 1933, it really becomes part of the Army.
10 U.S. Code sec. 311 gives the legal definition of the federal militia.
(a) says the militia of the US consists of all able-bodied male citizens (or who have declared their intent to become citizens), age 17-45, and of female citizens who are member of the National Guard.
(b) says the classes of the militia are the organized militia, the National Guard and Naval Militia, and the unorganized militia, which is all other militia members.
But a bit of research shows retirement age for the Guard is well above 45. In 2005, the Senate approved a measure to lower the retirement age from 50 from 60. Neither of those are mandatory retirement ages, just ones at which (with 20 years' service) it is possible.
It would appear to me that the National Guard thus includes persons who are not members of the "militia of the United States."
Hmm.... and here's an indication that you can enlist in the Guard if you are are permanently admitted to the US and requested permanent residence. I don't know if that requires declaring an intent to become a citizen.
(Via Instapundit)--Wired has an interesting report on uses of the internet to notify people and schools of events around them, ranging from disasters to 911 dispatches. The ideas (already in place in some locales) enable you to be informed, with customizable standards (severity, your location -- you might want to hear of minor stuff within a mile of you, and only major stuff beyond that).
Add in a little connectivity and organization, and you might just see a high-tech militia system reviving.
(Via Legal Eagle) The Boston Globe is reporting a brewing conflict over the National Guard. As part of the next round of military base closings, the Pentagon proposes to relocate several NG air units to bases outside their own States. PA, Ill. and other States have sued or are preparing to do so, and the US is of course defending against it. The State's arguments appear to be based on the position that, if the NG is part (at least part) of their militia, they ought at minimum to be asked before it is moved to a different state.
The Federal position here underscores the point I've made before -- the NG is definitely not the functional equivalent of the Framers' "Militia." The functional attributes of that (the attributes which the Framers cited as the reasons for the institution) were that (a) it was composed of all the people, or at least almost all, and (b) it was primarily governed by State officials, not Federal ones.
The Militia Act of 1792 (in effect until 1903) required essentially every male of military age to own a musket or rifle and ammunition. I recently found some of its legislative history (beginning in 1790) and it is interesting. Major themes were (1) what to do about people too poor to own a gun? (2) If we have the federal government just give issue them guns, wouldn't that let the federal government disarm them at a later date? (3) Various States let Quakers out of militia service if they pay a fee. Should we let them off the fee, or would that be a benefit to one religion (they neither serve nor pay), and how do we make up the lost revenue? Here's a few samples (From 2 Jos. Gales, Debates and Proceedings in the Congress of the US (1834) p. 1851 ff:
Mr. Parker observed ... it must be well known that there are many persons who are so poor that that it is impossible they should comply with the law. He conceived, therefore, that provision should be made for arming such persons at the expense of the United States....
Mr. Fitzsimmons [objected to a provision requiring drill 4-5 times annually] As far as the whole body of the people are necessary to the general defense, they ought to be armed, but the law ought not to require more than is necessary; for that would be a just cause of complaint.
Mr. Jackson said, that he was of the opinion that the people of America would never consent to be deprived of the privilege of bearing arms. Though it may prove burdensome to some individuals to be obliged to arm themselves, yet it would not be so considered when the advantages are justly considered. Original institutions of this nature are highly important. The Swiss Cantons owed their emancipation to their militia establishment....
Mr. Parker said, that in Virginia there is a law, which provides that poor persons, not able to arm themselves, should be equipped at the expense of the State. In every State there are doubtless many persons, who ought to be provided for by the General Government; and if they are not the law is rendered impractical....
Mr. Sherman said, ... There are so few freemen in the United States who are not able to provide themselves with arms and acoutrements, that any provision on the part of the United States is unnecessary and improper.
Mr. Vining ... asked by what means minors were to provide themselves with the requisite articles? Many of them are apprentices. If you put arms into their hands, they will make good soldiers, but how are they to procure them?....
Mr. Wordsworth ... asked the gentlemen who favorered the motion what was the extent of their wishes? The motion appeared at first to be in favor of poor men, who are unable to purchase a firelock; but now it seems minors and apprentices are to be provided for. Is there a man in this House who would wish to see so large a portion of the community, perhaps one-third, armed by the United States, and liable to be disarmed by them? Nothing would tend more to excite suspicion and arouse a jealousy dangerous to the Union.
[Motion to amend act to change "provide himself" with arms to "shall be provided." Objection that it would "leave it optional with the States, or individuals, whether the militia should be armed or not. The motion was lost by a great majority."]
[Motion to strike section requiring conscientious objects to pay a penalty]
Mr. Burke ... This, he said, was called the land of liberty ... and yet we are going to make a respectable class of citizens pay for aright to a free exercise of their religious principles...
Mr. Wilkinson [asks] ... but who are the militia? Such men, he presumes, as are declared to be so by the laws of the particular States, and on this principle he was led to suppose that the militia ought to consist of the whole body of citizens without exception ... he did not anticipate an abuse in the power of exemption on the part of the States....
Mr. Burke [proposes exempting Quakers, those religiously scrupulous, stage-drivers, and teachers] "but their pupils, the students in colleges and seminaries of learning, should not be exempt; youth is the proper time to acquire military knowledge."
Mr. Jackson ... averted to the exemption of Quakers provided in the bill. He said that the operation of this privilege would make the whole community Quakers ... He enlarged upon the obligations which every man owes to society to afford his personal services to assist and defend the community; protection and service are reciprocal. Those who are exempted ought to pay a full equivalent on every principle of justice and equity...."
I'd previously discussed the relationship of the National Guard to the concept of militia (see here, and here, and here). Here I'd like to take a functional approach: what did the Framers see as the critical features of the "militia," and how well does the present NG match up to them?
We start with Madison's Federalist 46. Madison is answering fears that the Army Clause will permit Congress to establish, and perhaps use oppressively, a standing army. Madison responds that the militia is the protection against that. He attributes two key features to the militia:
1. It is officered by men chosen by State governments, not the Federal.
2. It is so large that it can defeat the any army that Congress could raise. He estimates the militia would outnumber the largest possible army by 25:1. " It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops."
Others of the period would have added:
3. It comprises the entire community, not just the "young and ardent" (Letters from the Federal Farmer) who might be inclined to adventure and ambition (remember that in 1789 a 45 year old had outlived the average lifespan and was probably a grandfather) and
4. It includes (in fact, in classical republican theory, should be limited to) landowners who have the most to lose and nothing to gain from military rule.
It looks to me as if the present NG comes nowhere near meeting 1, 2, or 3, and does an inadequate job at best of 4. So the NG is not, in a functional sense, fulfilling the role that the Framers desired for a militia. We might go farther: at the moment, its main functions are serving as a reserve component of the military, and providing manpower for war overseas (which, as I've pointed out, was specifically NOT a militia function -- it could only be called out to repel invasion, suppress insurrection, and execute the laws of the Union, three objectives that can only be met inside the US).
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."
Blogging will be a bit light today--Clayton Cramer is coming over to be filmed for the documentary--but here's an interesting law review article on the Perpich case (written before the Supreme Court ruled. He notes that the lead-up to the case began when governors objected to their NG units being called to federal service for training missions in South America. The statutes then permitted a governor to block federal call-up for foriegn service in peacetime. Congress amended the law to provide that no governor could object based on the nature of a training mission.
The author notes:
The current system is characterized by federal control over almost all facets of the Guards. There is almost no area of operation in which the Guards are not constrained by federal control. The Officering Clause has been completely vitiated by the 'federal recognition' system: no unit receiving federal funds or support may place an officer in its table of organization unless that officer has been federally recognized. Federal recognition, which means the officer must meet standards identical to federal active duty officers, must also be 'renewed' upon promotion in rank or position. This scheme supplants the state's role in choosing and installing state officers, for no state's Guard can accomplish federally mandated missions without making use of federal funding and support.
State control in administering matters such as training, personnel, logistics, doctrine, and military justice has been eliminated by a system of federal conditional spending. This purse string has been used to put the states in a 'catch-22' situation¾retain autonomy and lose funding or accept funding and submit to federal control. In addition, legislation prohibiting the states from keeping 'troops' except as directed by the President has been read to apply to the militia. Although the term 'Troops' in the Constitution was probably intended to apply to standing armies, this seemingly unfounded application of the prohibition to the militia means that even if the states could afford to maintain their militia in accordance with federal standards without federal assistance, they would be forbidden to do so. Moreover, today the state National Guards are organized into federal divisional structures requiring the maintenance [Page 344] of state units that have no purpose other than to support a national defense strategy. For example, what possible use could a state have for a Military Intelligence Battalion whose primary mission is to collect and analyze tactical and strategic battle information?
This state of the law ignores important interests of the states. Specifically, it prevents states from independently, and some would say effectively, administering a state institution to meet state requirements. In addition, the states are now forced to participate in and contribute to a foreign policy with which they may vehemently disagree, and the development of which the Constitution denies them any meaningful political mechanism to change. In a more general sense, however, the current law prevents the states from legitimately acting as states. It intrudes upon that zone of governmental activity presumably reserved to the states in our federal system. Such harm to the states becomes crucial when analyzing the constitutionality of the current statutory scheme.Posted by David Hardy · 6 April 2005 11:16 AM
I found this Cleveland Advocate article (Oct 9, 1920) in the Library of Congress online collections. Apparently some Guardsmen formed a lynch mob, and the local government had to "call out the militia" to stop them.Posted by David Hardy · 5 April 2005 12:10 PM
Norman Heath's article on militia laws and pre-emption raises an interesting point regarding original understanding. It's not so much how early Americans understood the Second Amendment, as evidence of how they didn't understand it, namely as aimed at the Congressional power over militias.
[Update: Norman Heath emailed me to point out that his thesis goes beyond issues of original understanding. Rather, we can reason (1) the question is whether the Second Amendment protects rights of individuals to arms, or rights of States to maintain a militia free of federal interference; (2) from the earliest days of the Republic, and into modern times, the courts made clear that States have no constitutional right to have their militias free of federal interference; ergo (3) the State right theory has nothing to support it, and we are left with the individual rights approach.]Posted by David Hardy · 2 April 2005 01:16 PM
A bit of research into the legal background of the National Guard can be revealing.
There is of course the modern 10 US Code §311, which defines the unorganized militia of the U.S. as essentially all males 18-45 and certain women, and the organized militia as essentially the National Guard. There are also various State statutes (Arizona's defines the state militia to include women as well as men).
10 U.S.C. §311 dates from the Dick Act of 1903, which repealed the Militia Law of 1792, and first wrote the term "National Guard" into law. The Guard as we now know it (dual enlistment: members of State National Guard units required to enlist in the U.S. Reserves) dates from the Army Act of 1940. (Why dual enlistment? In 1912 the Attorney General ruled that NG units could not be sent outside the US, because they were part of (note "part of") the militia, and the Constitution allows the militia to be called up only for domestic purposes -- to repel invasion, suppress insurrection, and execute the laws of the Union. As a result in WWI Guard units were broken up and members drafted into regular Army units as individuals, an inefficient operation and one displeasing to the Guard).
So let's take a look at the legislative history of those statutes....