Posted on 12/05/2001 6:23:16 PM PST by 2nd_Ammendment_Defender
What is the Militia? A writer in a prior issue of “The Firing Line” purported to know. He told the readers it refers to citizens eligible to vote.
Well, not quite. It’s much more than that and has nothing to do with voting. However, he got one thing right. It’s not the National Guard, which didn’t even exist in any state for about 150 years after we became a nation.
Look carefully at the U.S. Constitution, and the writing of the Founding Fathers, and you’ll see that every able-bodied male at least 17 years of age is automatically in the militia. By subsequent extension of rights granted to women by the 19th Amendment, ratified August 26, 1920, all women attaining the age of 17 also are automatically in the militia.
The very specific definition exists in the current United States Code [10 U.S.C. 311 (a)]. This is what that states:
“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.”
The U.S. Code further divides the militia into two classes: The organized, and the unorganized militia. The organized militia is viewed in the USC as the National Guard and Naval Militia, and the unorganized militia that consists of “…all members of the militia who are not members of the National Guard and the Naval Militia.” [10 U.S.C. 311 (c)].
Here’s where things get interesting. Take U.S. versus Miller, 307 U.S. 174, for example. It’s a case that was decided by the U.S. Supreme Court in 1939. This is the only case in which the Supreme Court has had the opportunity to apply the Second Amendment to a federal firearms statute. Without going into details of the case and all the legal jargon involved, suffice to say that the court concluded that for the keeping and bearing of a firearm to be constitutionally protected, the firearms should be a militia-type arm. Not a hunting or sporting competition gun, but a militia-type arm.
The case also made it abundantly clear that the militia consisted of “all males physically capable of acting in concert for the common defense” and that “when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” The court implicitly rejected the view that the Second Amendment guarantees a right only to those individuals who are already members of an organized militia with access to arms beyond the normal use of civilians.
Thus we can conclude several points from all of the above:
1. The militia is at least all citizens between the ages of 17-45. That does not preclude the voluntary membership by persons much older. As a historical review of the American Revolution will disclose, there were many patriots of advanced age into their 70s and 80s who stood at Lexington and Concord and fought in militia units throughout that war of independence.
2. The militia is composed of the above persons who are NOT members of any organized military group.
3. The militia may possess the same small-arms weaponry as regular soldiers. That, of course, included semi-automatic firearms. Yes, they had been invented and were in use long before the American Revolution – even Rogers and Clark carried them on their journey west. Thus, the very shoulder arms that the frontiersmen used to fight off the Indians, then the British (as well as to obtain game for food or to defend their homes against criminals) are what the unorganized militia are allowed to possess.
4. It would appear that many, if not most, of the anti-firearms regulations in recent years, particularly since the ascension to the throne by our current politicians, are in violation of the U.S. Constitution, the U.S. Code and case law.
***
All military agencies throughout the world, including our own, define an “assault weapon” as a military firearm with either selective or full-auto capability. None, including our own military, consider ANY firearms without selective-fire capability to be an “assault weapon.” It is only our state and federal legislators who have decided in the latter half of the 20th century to rewrite the dictionary. Thus, the word “militia” has joined the ranks of other words to which the socialist left have given pejorative connotations. No longer is a militiaman a patriot, a hero, a citizen soldier. He now is a dangerous psychopath capable of mass murder.
So how does one overcome that negative and grossly erroneous image that the media and our leftist leaders have successfully promulgated about the word, “militia?”
Take the high road. Go on the attack. Become and “official” militia member. Wait, don’t you realized that announcing you are a member of a militia can lead to your arrest by the local gendarmes? Yes, that’s what can and probably will happen. Why? Because police also have been indoctrinated with that concept of the word, “militia.” Many arrests have been made around the country on the basis of “conspiracy” laws. Under legal definition, conspiracy consists of two or more persons acting in unison to commit a felony, or in California, a misdemeanor.
The assumption now uniformly held is that anyone joining a “militia” group is intent upon committing a felony. The key word here is “group.” This may sound pretty basic buy needs to be explained to the neophyte – a conspiracy cannot be committed by an individual which explains the large bumper sticker on the rear bumper of my car.
In 2-inch-high, black type (known in the newspaper profession as War Type because such huge letter are rarely used, such as in “WAR DECLARED” or “WAR OVER”) I have printed two words. They are “BENICIA MILITIA.” But you have to get up close to see the tiny, 6 point agate type at the end of the bumper sticker. Readable only from a foot or less away, that portion says “of one.” The driver of a passing car (say, a BATF, CIA, or police car, for example) would assume the driver to belong to an organized (feared and dangerous, yeah!) militia group. Again “group” is the operative word here, since a militia “of one” cannot legally in and of itself be an organization.
I live in a town of about 28,000 people. I am known all over town as “that fellow with the BENICIA Militia bumper sticker.” It opens the door constantly – in the market, at the post office, shopping, at restaurants – to an explanation, much as I’ve done here. If nothing else, it gets many citizens to thinking about this once-great nation’s rapid descent into a socialist hell. And it puts police on notice that I fear my government and am not afraid to be a patriot.
This explains the whole Second Amendment and says it all to me. But how hard is the Second Amendment to understand?
"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."
It could be written in stone, Amendment 2: Keep Your Damn Hands Off the Guns! and they'd argue the definition of the word "gun" or "damn."
(Great post.)
not true, on a couple of counts. first, there were no autoloaders at the time of the american revolution or for some time thereafter. second, the author has apparently confused george rogers clark with lewis and clark.
dep
Wasn't one of the first lever action the yellow boy the first near semi-automatic? I think it was invented around the Civil War.
dep
No military on the planet carries semi-automatic firearms as general issue. The really primitive ones may not have graduated to the AK-47 yet, but I doubt it. They issue selective fire weapons, either semi and full automatic, or semi and burst (ususally 3 round) fire. Some have all three semi, burst, and full auto, as selections.
Therefore it followes that the part of the NFA purporting to tax and regulate (i.e. infringe upon) the right to keep and bear machine guns, and many short barrelled shotguns too, is clearly unconstitutional. It is *really* too bad Miller didn't have a BAR or Thompson rather than a ratty old shotgun to which a hacksaw had been taken.
dep
Otherwise, I agree with most of the substance of your comments but disagree with the extension of the militia to women. Nothing in the original Constitution prohibited women from voting, and many women voted in the late 1700's and early 1800's. In spite of women's exercise of this right at that time, the Founding Fathers did not see them as part of the militia. Men and women were created to occupy different roles in the home and in society. While women have used force to defend home and family during emergencies, military service is generally incompatible with the woman's role.
I make this point because I think your argument depends too much on the militia aspect of the Second Amendment. The part about the militia is an explanation for the main clause of the amendment, but the right to keep and bear arms does not depend on one's being in the militia. A writer whose name I've forgotten (maybe J. Neil Shulman or something similar) drew an analogy to illustrate this point very well. He asked what if the First Amendment were broken into parts and part of free press said this:
An educated electorate being necessary to the security of a free state, the right to own and read books shall not be infringed.
Would that mean that only people with a certain level of education would be allowed to own books? Would it mean that only those enrolled in classes and furthering their education would be allowed to own books? Would it mean that only school books or only recreational (sporting) books would be legal for average people to own? Would it mean that only registered voters, the electorate, could own books?
One could play with these questions for hours, but the point is the same. When we look at the same wording in a different context, we see that being in "a militia" is not necessary for one's right to own a gun to be protected.
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