March 29, 2017

January 4, 2013

The Gun Thing, Part I: The Militia

I’ve warned my fellow conservatives in America that over the next few months we’re going to be hearing a lot of exquisitely ignorant nonsense regarding private gun ownership and the Second Amendment.

I’ve broken the nonsense down into easily-digestible bits and will be posting them here over the next several days.

The first one concerns the matter of the word “militia” in the wording of the Second Amendment. It states:

“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.”

First, what is a militia? It is *not* the same as the army of the government. A militia is composed of armed citizens; not draftees, not soldiers fighting under orders from the state.

Militias are ad-hoc by definition: They are formed at a particular time, to do a particular task. Militias have been mustered at various times throughout American history to meet a number of threats and pursue a number of missions.

The wording of 2A in no way requires every person who owns a gun to be part of a militia. Indeed, the very notion makes no sense, because again, militias are not standing armies. You can’t wake up any day of the year and just go sign up for a militia, like you can go volunteer for the US Army. Militias are mustered in response to specific threats or needs, and they disperse once the threat or need is gone.

Do not confuse “militia” as intended by 2A, with the scattered bands of armed wackos who call themselves “militias” but are really just scattered bands of armed wackos. Just because there are outlaw motorcycle gangs doesn’t mean you’re an outlaw simply because you ride a motorcycle.

Also, the phrase “well-regulated” has nothing to do with “government supervision.”

The first thing to remember is that liberals love them some government supervision of everything, down to how much soda you can buy and what kind of light bulbs you can put in your lamps, so it should come as no surprise that they read “well-regulated” and think, “Aha! This means your little militia has to be overseen and approved of by the state!”

It’s not used in this context that often nowadays, but at the time the Bill of Rights was written, “well-regulated” was used to describe something that was “functioning smoothly” or “properly functioning.” If you know what a regulator in a car engine does… that’s what they meant.

Now, read the amendment again with synonymous, modern language in place, and its meaning becomes perfectly clear to our modern ears:

“A [properly functioning] militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

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Using your own definition of a militia, are there any constraints on bringing one into existence? If a militia is not to be considered a federal entity, the natural assumption would be that it’s for a governor and/or state legislature to authorize any mobilization, meaning that the militia still exists subject to a constituted authority, just at a lower level in the federal system. The only alternative would seem to be that any local notable might do so, but that seems a trifle anarchistic.

By the same token, when does a militia become a mob, or vice versa? After all, there’s a fairly extensive literature on the role of the mob in expressing public sentiment in the colonial era, but even contemporary observers would have distinguished between mob and militia. 

As a further point of interest, does the Mississippi state constitution address the question of a militia at all?

[1] Posted by Jeremy Bonner on 1-4-2013 at 03:27 PM · [top]

Jeremy, I think all state constitutions do.


  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.

Basically the unorganized militia consists of all US Citizens under the age of 46.

From the Florida Constitution-Article X

SECTION 2. Militia.—
(a) The militia shall be composed of all ablebodied inhabitants of the state who are or have declared their intention to become citizens of the United States; and no person because of religious creed or opinion shall be exempted from military duty except upon conditions provided by law.

(b) The organizing, equipping, housing, maintaining, and disciplining of the militia, and the safekeeping of public arms may be provided for by law.

(c) The governor shall appoint all commissioned officers of the militia, including an adjutant general who shall be chief of staff. The appointment of all general officers shall be subject to confirmation by the senate.

(d) The qualifications of personnel and officers of the federally recognized national guard, including the adjutant general, and the grounds and proceedings for their discipline and removal shall conform to the appropriate United States army or air force regulations and usages.

The militia is different from the National Guard.

Under the original militia act of 1792:

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, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. 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 powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; 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.

During the Second World War the unorganized militia was used to patrol costlines because all National Guard units had been Federalized.

[2] Posted by Br. Michael on 1-4-2013 at 07:24 PM · [top]

Br. Michael - that was a very thorough going over.  I wish everyone talking about the militia on the Gun Thing: Hunting would read it.  It would have probably precluded a lot of their comments in the first place.  I’m hoping they do that soon.

[3] Posted by Seanny Rotten on 1-6-2013 at 01:33 AM · [top]

I that have read the 2nd a bit differently.  I understood the militia referenced were the organized militia and “well regulated” referenced control.  This hinges on my belief that that the true government is the people and the organized governmental bodies are the expression of what is needed to formally execute government.

I also understand arms to be anything that the military has.  In the late 18th Century it was within an individuals scope to have the current arms that the military had: rifled guns, cannons, swords, etc.

I therefore read the 2nd amendment in that light.  The people can own arms to be able to keep the formal Government in check.

For this particular reply I sign (fully and legally),

BillB LtCol USAF Retired

[4] Posted by BillB on 1-6-2013 at 12:08 PM · [top]

I’m not American, but I keep reading people suggesting the motive for 2A was/is (to quote BillB) “to keep the formal Government in check.”

But I don’t see that in the amendment.  Instead the drafters gave the motivation as “the security of a free state,” which would be consistent with a model such as Switzerland has, in which all adult men are in the militia, trained to handle their weapons, and those weapons are kept in their homes.  Canada has something similar in the Arctic, where the Canadian Rangers provide a militia-like presence.

It seems to me that if you ignore the motivation stated in 2A, the amendment would forces the state to allow everyone (even insane people, children, criminals, etc.) to keep and bear arms, and it would force the state to not infringe the right to bear arms when travelling on aircraft, when visiting the White House, and when entering a school or a shopping mall. 

That of course would be absurd, and the amendment drafters were not fools, so it seems fair to assume that they relied upon the state to judiciously interpret what that simple statement meant.  I think that opens the door for a model such as BillB proposed, in which the state exerts control over the militia.

[5] Posted by Michael D on 1-6-2013 at 08:10 PM · [top]

Michael, you have several things wrong, one of which will be addressed in an upcoming post in the series, and that is the intention of the founding fathers with 2A. If you read their writings on the rationale for the amendment, you’ll see very clearly that they intended it to allow citizens to throw off their own government, if need be.

The other is where guns might reasonably be carried. While no law can reasonably be assumed to be absolute such that people can expect to carry into the White House, schools and shopping malls are perfectly reasonable. The reason those places have invited shootings lately is precisely because the shooters know they can expect no one in them to be armed.

As to whether the founders intended for the state to exert control over militias, I’m afraid that couldn’t be further from the truth, as their writing very clearly explain.

[6] Posted by Greg Griffith on 1-6-2013 at 10:04 PM · [top]

I suppose I should add, just in case it’s not clear: The second amendment is very pointedly not about defending the current government in all its forms, no matter how good or vile. It was very clearly intended to help the people, should it come to that, to shoot the ones running the current government should it become unbearable.

[7] Posted by Greg Griffith on 1-6-2013 at 10:09 PM · [top]

The following sounds very anti-democratic: It was very clearly intended to help the people, should it come to that, to shoot the ones running the current government should it become unbearable.

Do I need to explain why? If the constitution invites armed special-interest groups to overthrow the elected government by force, then it is inviting “institutionalized revolution” (to borrow a communist phrase).  If this is not for special-interest groups, but rather for “the majority” then how the will of the majority be determined if the government is oppressive? (i.e. how could a free election be held to resolve to overthrow the government by force?)  The only possible value might be to make the government uneasy about cancelling elections, thus forcing them to use subterfuge.

More profoundly, do ” their writings on the rationale for the amendment” really matter at all?  Those writings may reflect the opinion of the drafters of the amendment, but clearly the drafters could not get democratic support for those ideas and thus settled for the current wording.

[8] Posted by Michael D on 1-7-2013 at 02:51 AM · [top]

Following on from Michael D’s point, who were the “unorganized militia” in the South during Reconstruction? The Redeemers would certainly have claimed that title, yet their use of naked force to break elected state administrations wasn’t just intended to bring down corrupt governments but to reinstate a racial order. Although one doesn’t need to buy the Radical Republican interpretation of Reconstruction, hook, line and sinker, it’s naive to contend that Redemption was solely concerned with the restoration of local self-government.

So, once again, where does the unorganized militia end and mob rule begin?

[9] Posted by Jeremy Bonner on 1-7-2013 at 03:47 AM · [top]

9, where was the Southern militia during reconstruction?  They were dead on many Civil War battlefields and the South was under Northern military occupation.  The South was a conquered nation and occupiers do not allow the conquered to have arms.

I know its a difficult concept for Europeans to grasp who have a history of unchecked government, but the American colonists just threw off unchecked government.  And US is not a democracy.  It is a constitutional Republic and limited government and has many checks and balances, although many of which have been weakened over the years.  The majority does not rule if they attempt to do thing that are not allowed them under the Constitution.

And one of the checks on Government was a small standing army, supplemented by a militia system in which the arms were owned by the citizens.  A government can hardly use force against its citizens when it is those citizens who have the arms.

[10] Posted by Br. Michael on 1-7-2013 at 07:47 AM · [top]

Br. Michael,

You earlier defined the unorganized militia as all male US citizens under 46. Ex-Confederates never ceased to be US citizens even at the height of Radical Reconstruction. For that matter, freedmen were already citizens even before the Southern states were all readmitted.

Interesting your use of the phrase “conquered nation,” since this again was the Radical Republican view, to which Andrew Johnson, for example, never subscribed. In any case, the Southern states had all been readmitted to the Union before Reconstruction ended.

So Redemption is an excellent example of how the “militia” were used to subvert democratically elected governments by force. How does one avoid that?

[11] Posted by Jeremy Bonner on 1-7-2013 at 09:35 AM · [top]

hi Br. Michael,
I was using the term “democracy” with a small “d” to refer to Lincoln’s concept of “government by the people for the people etc…”  Is there a better word that I should use to describe the class of all governments that are elected in some way by the citizenry?

[12] Posted by Michael D on 1-7-2013 at 01:28 PM · [top]

I guess I could have said <em> the drafters could not get legislative support<\em> instead of <em> the drafters could not get democratic support<\em>.  Would that have been better?

[13] Posted by Michael D on 1-7-2013 at 01:31 PM · [top]

Jeremy, the South was under military occupation until the disputed election of 1876 between Hays and Tilden.  Hays gained election by promising the South that he would withdraw Federal occupation troops.  The last troops left New Orleans in 1877.  As for conquered nation, you can play word games all you want, the fact remains that the Southern region was defeated in a war and placed under military occupation.  And they did in fact create a nation whether recognized or not.

Here are the key dates:

South Carolina:
-Seceded: Dec. 20, 1860
-Admitted into C.S.: Feb. 4, 1861
-Readmitted into U.S.: July 9, 1868
-Local rule reestablished: Nov. 28, 1876

-Seceded: Jan. 9, 1861
-Admitted into C.S.: Feb. 4, 1861
-Readmitted into U.S.: Beg. 23, 1870
-Local rule reestablished: Jan. 4, 1876

-Seceded: Jan 10, 1861
-Admitted into C.S.: Feb. 4, 1861
-Readmitted into U.S.: June 25, 1868
-Local rule reestablished: Jan 2, 1877

-Seceded: Jan. 11, 1861
-Admitted into C.S.: Feb. 4, 1861
-Readmitted into U.S.: July 14, 1868
-Local rule reestablished: Nov. 16, 1874

-Seceded: Jan. 19, 1861
-Admitted into C.S.: Feb 4, 1861
-Readmitted into U.S.: July 15, 1870
-Local rule reestablished: Nov. 1, 1871

-Seceded Jan. 26, 1861
-Admitted into C.S.: Feb. 4, 1861
-Readmitted into U.S.: June 25, 1868 or July 9, 1868
-Local rule reestablished: Jan. 2, 1877

-Seceded: Feb. 1, 1861
-Admitted into C.S.: Mar. 2, 1861
-Readmitted into U.S.: Mar. 30, 1870
-Local rule reestablished: Jan. 14, 1873

-Seceded: April 17, 1861
-Admitted into C.S.: May 7, 1861
-Readmitted into U.S.: Jan. 26, 1870
-Local rule reestablished: Oct. 5, 1869

-Seceded: May 6, 1861
-Admitted into C.S.: May 18, 1861
-Readmitted into U.S.: June 22, 1868
-Local rule reestablished: Nov. 10, 1874

-Seceded: May 6, 1861
-Admitted into C.S.: May 16, 1861
-Readmitted into U.S.: July 24, 1866
-Local rule reestablished: Oct. 4, 1869

North Carolina:
-Seceded: May 21, 1861
-Admitted into C.S.: May 16, 1861
-Readmitted into U.S.: July 4, 1868
-Local rule reestablished Nov. 28, 1876

As for your last question I would quote from the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

And remember the Battle of Lexington and Concord took place precisely because the British were attempting to seize the arms and munitions stored there.  Just because a government is a democracy (and the US is not) that democracy cannot proceed beyond its constitutional limits.

[14] Posted by Br. Michael on 1-7-2013 at 02:37 PM · [top]

hi Br. Michael,

According to the Oxford Engish Dictionary:

A “democracy” is defined as: “Government by the people, direct or representative.” 

And a “republic” is “A state in which the government is carried on nominally and usually in fact also by the people or through its elected representatives, commonwealth.”

According to Merriam Webster:

A “democracy” is defined as: “a : government by the people; especially : rule of the majority ...  b : a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections

And a “republic” is “a (1) : a government having a chief of state who is not a monarch and who in modern times is usually a president (2) : a political unit (as a nation) having such a form of government…  b (1) : a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law (2) : a political unit (as a nation) having such a form of government.”

This is how these words are understood throughout the world.  So it is clear that, while not all democracies are republics, all true republics are in fact democracies.  (I say “true republics” to exclude nominal republics such as the USSR states.)  Some would try to tell you that a “democracy” cannot have government by representation but as these dictionaries make clear, that is not the accepted meaning of the term.

[15] Posted by Michael D on 1-7-2013 at 02:50 PM · [top]

Br. Michael,

You’re ducking the question. Are you saying that the campaign of violence designed to break the Reconstruction governments during the 1870s was simply another manifestation of the spirit of 1776? There was plenty of corruption north of the Mason-Dixon line during this period, but it didn’t produce the same spirit of anarchy.

The Redeemers certainly thought of themselves as restorers of local self-rule, but it was a self-rule that sought increasingly to exclude a body of men who had supposedly been granted all the rights of citizenship, including that of political participation. 

As for the “conquered nation” issue, the question isn’t whether the South produced a new nation in 1861 - to all intents and purposes they did - but how contemporary constitutional experts and politicians viewed the situation after 1865. There were those who certainly wanted to treat the Southern states as having reconverted to territorial status, but this was by no means the sole or even the majority opinion.

[16] Posted by Jeremy Bonner on 1-8-2013 at 01:23 AM · [top]

“The second amendment is very pointedly not about defending the current government in all its forms, no matter how good or vile. It was very clearly intended to help the people, should it come to that, to shoot the ones running the current government should it become unbearable.”

I’m not sure what’s “clear” about that, from the text of the amendment.

What did a “well-regulated militia” mean in late 18th century America?  Hamilton uses those very terms in Federalist Number 29, “The Regulation of the Militia”:

“The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.  It requires no skill in the science of war to discern that uniformity in the organization and discipline of the miliita would be attended with the most beneficial effects….If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.” 

This does not at all sound, to me, like the proposed “properly functioning” militia whose function is to turn its guns on the goverment itself.  That, to me, sounds more like the making of war on the United States, which the constitution itself defines as treason.

[17] Posted by rick allen on 1-8-2013 at 02:12 PM · [top]

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