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What is the Militia?
What Is the Militia
Copyright (C) 1994 Constitution Society. Permission is hereby
granted to copy with attribution for noncommercial purposes.
Components of the Militia
When asked what the Militia was, George Mason, one of the
Framers of the U.S. Constitution, said, "Who are the Militia? They
consist now of the whole people, except for a few public officers."
Yet we also see statutes like 10 USC 311, which defines it as "all
able- bodied males at least 17 years of age and, except as provided
in section 13 of title 32, under 45 years of age who are, or have
made a declaration of intention to become, citizens of the United
States." Some state statutes define it as "able-bodied males" of
different age ranges, such as 16 through 59.
These statutes also divide the Militia into various classes, such as
"organized" or "unorganized", in the case of 10 USC 311, or
"active" and "reserve", as many states do, with "active" being
considered the National or State Guards, but not the national armed
forces.
To understand how these definitions have arisen, one must first
understand what the Framers of the U.S. Constitution had in mind
for the new Republic they had created. They allowed for a standing
national army, but insisted that it be kept small, and although it
might be the first force to be called out, and the only force to be
sent abroad, the primary defense of the country was to be the duty
of ordinary citizens, who would be kept in a state of military
readiness while leading their normal lives, and who would be called
up to "repel invasions, suppress insurrections, or execute the laws",
for limited periods of time. At the time the Constitution was
adopted in 1789, the well-established tradition was for local militia
units to be kept in a state of readiness in each and every
community. Such units were organized and trained locally, perhaps
led by the local town or county officials, but otherwise independent
of official control when not actually called up for service.
When lawmakers tried to define the "militia" by statute to consist
of less than the entire body of citizens, they were defining those
citizens who would be required to be kept in a state of readiness, as
was done in the Militia Act of 1792, which required able-bodied
males age 17 through 44 to keep a "musket or firelock". However,
persons younger than 18 and older than 45 regularly responded to
call-ups of the Militia and were accepted as part of it. There were
even some women who participated.
The Framers also insisted on a distinction between the "genuine"
Militia and a "select" militia, which they viewed as a danger, just as
much a danger as a standing army. They did not want a militia
whose members might consist of anything less than the entire
people, or at least able-bodied ones in a certain age range, because
if selected on any other basis, they might be used to oppress other
parts of the population.
Actually, George Mason provided the best definition. It only needs
to be broken out into various classes, representing the order in
which persons would be called out for military service.
Qualifications like "able-bodied" or "male" or "age 18-44" only
establish who would be first called to service, with the expectation
that they would be adequate for almost any situation, but it allows
for calling up other persons if needed.
This suggests a hierarchy of classes:
1.National Army.
Full-time. Army, Navy, Air Force, Marines, Coast Guard.
Part-time. Reserves, National Guard.
2.State and Local Select Militia. But these are not "general"
militias. They are paid and equipped by the State or by local
governments.
Full-time. State and local law enforcement officers.
Part-time. State Guard.
3.Obligatory Militia. Able-bodied male citizens of a certain age
range, who are required to be kept organized and trained, but at
their own expense. Age range is 18-44 for federal purposes, but
states may establish other age ranges.
4.Volunteer Militia. Citizens not part of obligatory militia who
voluntarily participate in activities of the obligatory militia, again at
their own expense.
5.Ready Militia. The combination of (3) and (4) above, who would
be called up after the armed forces and the regular militia, but who
are also those likely to be first on the scene in emergency
situations. It is not a "select" militia.
6.Reserve Militia. All other citizens, including children, the
elderly, the less-able, and women, and perhaps foreign visitors as
well, who might be called up after the ready militia, if needed.
What is missing from the current picture is the Ready militia.
Most states now lump it in with what we are here calling the
reserve militia, and in fact often call it that. The ready militia is
what the Framers meant when they used the term "militia". It is also
what the Swiss mean by the term, and it was the Swiss model that
the Framers had in mind for the United States. The ready militia
was to serve as a counterbalance to the armed forces and regular
state (select) militias.
It should be noted that the obligatory militia is usually defined to
exempt certain public officials, and perhaps persons with certain
occupations, whose usual duties are considered essential.
Choice of words can be indicative. 10 USC 311 lumps the ready
and reserve militias into what it calls the "unorganized" militia,
with the implication that it is to remain unorganized, since no
provisions for organizing and training the ready militia are given,
contrary to the intent of the Framers.
Militias are local and independent
Often heard are arguments about whether militias are state or
national, but the militia, like citizenship, is fundamentally local.
We are first and foremost citizens of our local community. The
word "citizen" has the same root as the word "city". Although
people may also be concurrently citizens of larger political entities,
such as states or the nation, and although those entities may be
considered to be composed of their citizens, they are essentially
composed of localities, and it is the local community that is the
basis for the social contract, although it may be considered to
include a certain amount of surrounding territory. Today we would
usually identify the locality with the county.
Just as militias are essentially local, so also are they essentially
independent of established authorities, since the militia may have
to challenge or bypass those authorities if they abuse their authority
or fail to perform their lawful duties.
The legal basis for assemblies of militias are two natural rights: the
right to assemble and the right to keep and bear arms. Combined,
they are the right to assemble bearing arms. The Framers considered
it obvious that rights which could be exercised separately could be
exercised in combination, and would have thought present attempts
to outlaw independent assemblies of militia units as absurd. The
term "well-regulated" used in the Second Amendment to the U.S.
Constitution did not mean "regulated by some official". It meant
"well-trained and disciplined". A militia can and should be self-
regulated.
The U.S. Constitution, in Article I Section 8, does provide for
States to organize and train their militias according to standards
established by the U.S. Congress, and to appoint the officers, but it
was not the intention of that clause to authorize states to forbid
local organization and training of militia units, but to require that
they be organized and trained. If the state fails to do so, people
have not only the right but the duty to organize and train
themselves locally, using their own arms. Just as they have the right
and duty, failing action on the state level, to conduct elections,
enforce the laws, establish courts, and so forth.
Of course, a militia unit that is not called up by any official, but by
its own members, does not have the authority to compel
participation through some kind of sanction, such as the imposition
of a fine. Therefore it will be composed of volunteers, who may not
represent a cross-section of the general population. In this
situation, the militia members must make a special effort to avoid
having the militia unit take on the attributes of a private
association, such as by always calling up the militia using public
notices, and allowing any responsible citizen to participate. It must
also avoid any suggestion of partisan or sectarian bias, and limit
itself to constitutional actions.
To do this, a militia unit should always refer to itself as the
"[state/county] militia" and not adopt a name that would suggest
some kind of private association, something that would expose its
members to legal action against it as a legal "person" or as a
"conspiracy". There can't be a conspiracy of the entire population of
an area, and a court can't serve the entire population with process,
even if not all of them are present at meetings.
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Organizing strategy
Militia units of 50-200 members should be organized at the local
level, by going house by house, covering entire neighborhoods,
towns, and counties.
This will initially be easier to do in rural areas, where people are
already more receptive to the patriotic message. In urban areas, it
may work better to start by organizing "neighborhood associations",
then educating the members gradually until it can be converted into
a self-conscious militia unit.
Co-ordination among local units should be done using
correspondence committees, which is the traditional method. These
committees do not attempt to act as regional,, state, or national
organizations, but only to facilitate communications among local
units, the sharing of literature, and the building of a consensus for
action.
Some units might try to publish newsletters or other documents,
but in most cases, it will be better to publish through established
magazines and various alternative media, and distribute extra
copies. Members may agree to subscribe to media that co-operate in
publishing supporting materials.
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Dealing with official resistance
For some time now the Establishment has discouraged the
formation of armed groups, including independent constitutional
militias. They don't want the "unorganized" militia to become
organized. Besides legal and illegal harassment, militia leaders
must prepare participants to deal with attempts to infiltrate militia
units. This can take three main forms:
Moles. Agents who pretend to be trustworthy but who are mainly
focused on obtaining information about militia members and their
activities.
Provocators. Agents who pretend to be responsible members, then,
when least expected, do something which seeks to discredit the
militia and perhaps provoke official action against it.
Dissipators. Agents who pretend commitment until they can
assume positions of influence within the group, then use it to divert
them into ineffective or unproductive activities, such as endless
debate, socializing, and divisive disputes, or to reduce morale and
resolve.
The best protection against infiltration is to teach members to be
vigilant to it and to have a large number of small units and many
leaders, none of whom is critical. There should be little or no
leadership on the state or national level, other than a network of
correspondence committees that facilitate communications.
It is also important to try to establish good relations with local and
state officials, to the extent possible. Work with them to help them
solve the problems of the community, and encourage them to ask
the militia to assist them. Resistance from such officials should be
countered by getting better ones elected or appointed.
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Subjects for action
One of the most important subjects for action by local militia units
is investigation of election fraud and other kinds of official
corruption. It will do little good to try to elect better officials if
elections are rigged, and if they are, the militia may become the
only way for citizens to secure their rights. If such fraud is found, it
will also help to build public support for further militia action and
for greater participation.
Another key subject is to inform citizens of their right and duty,
when serving as jurors in cases in which the government is a party,
to judge the law and not just the facts in the case. No matter how
despicable the defendant in a criminal case or how heinous the
offense, the jury must find the defendant not guilty if the law under
which he is charged is unconstitutional or misapplied. It is
unconstitutional if it violates a constitutional right, is not based on
a power delegated to government, or is so vague that honest people
may disagree on how to obey or enforce it. It is misapplied if it is
applied to acts outside its proper jurisdiction, such as a federal
criminal law applied to acts committed on state territory, or to acts
not intended to be included by the lawmakers.
One of the most important subjects for action will be to establish
an alert system for warning of abuses of citizens by organs of the
government, and mobilizing to defend them. It must be emphasized
that it is not enough for citizens to defend their rights in isolation.
Only if they band together can their rights be protected.
Education in constitutional law must also be a priority. Every
citizen must be trained to interpret the constitutionality of laws and
official acts, and taught that doing so is the responsibility of each
individual, that it cannot be delegated to others, such as judges or
superiors. That is the Lesson of Nuremberg. Special attention needs
to be given to educating lawyers, judges, officials, and college and
high school students. Militia members need to make sure that every
public library contains suitable books and magazines that provide
education on these subjects.
References:
Morgan Norval, ed.,
The Militia in 20th Century America: A
Symposium, 1985, available from Gun Owners Foundation, 5881
Leesburg Pike, Falls Church, VA 22041.
Stephen P. Halbrook,
That Every Man Be Armed, 1984, available from the Independent
Institute, 134 98th Ave, Oakland, CA 94603.
James M. & Kenneth F. Collier,
Votescam: The Stealing of America, 1992, available
from Victoria House Press, 67 Wall St #2411, New York, NY
10005.
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