Soldier of Fortune on Militias

Following is the text of a sidebar to an article in the April, 1995, issue of Soldier of Fortune magazine, page 48, entitled "..necessary to the security of a free State...", by Mike Williams. The sidebar, by Wayne Anthony Ross, appears on page 52.

I make no claims as to the legal accuracy of this piece, but wanted to present the opinion given by Soldier of Fortune Magazine:

Join A Militia -- Break The Law?

Legal research on the subject of militias raises the question of their authority to organize. Article 1, Section 8 of the Constitution of the United States provides that: "The Congress shall have the power ... To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions ... To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of officers, and the authority of training the militia according to the discipline prescribed by Congress."

The Second Amendment reads: "A well regulated militia being necessary [for] a free State, the right of the people to keep and bear arms shall not be infringed."

The Constitution, therefore, demonstrates that militias are a creature of the state, subject to being called forth by the U.S. government "to execute the laws of the Union..." This is bolstered by the wording of the Second Amendment which holds, "A well regulated militia being necessary [for] a Free State..." and by Article 1, Section 8, Subsection (16), which reserves to the states "the appointment of officers and the authority of training the militia..."

Title 10, U.S. Code, Section 311 further stipulates that the militia consists of all able-bodied males aged 17 to 45, both citizens and those who have declared their intent to become citizens, and of female citizens who are officers of the National Guard. It also specifies that the militia consists of two classes: the organized militia and the unorganized or reserve militia. Many states have similar statutes. Those citizens who apply, or are called up for service and are accepted by a state militia, are part of an organized militia. All others eligible under the law are members of the unorganized militia, and are subject to call up by the state.

Thus, while most citizens are members of the militia, and therefore have the right to keep and bear arms to respond to a call to assemble by lawful authority, the appointment of officers, and the training of militia members are the responsibility of the state. These militias that purport to support the Constitution, yet have appointed their own officers and conduct their own training without authority from the state, are therefore in apparent violation of Article 1, Section 8, Subsection 16 of the U.S. Constitution.

The Michigan Constitution provides in Article III, Section 4, that "The militia shall be organized, equipped and disciplined as provided by law." This "rump" organization has not been "organized, equipped and disciplined as provided by law." Instead private citizens, well-meaning though they may be, have organized, equipped and presumably disciplined themselves without any legal authority whatsoever.

Interesting enough, the state of Michigan, and a number of other states, already have organized militias other than the National Guard. In Michigan, this militia is known an the Michigan Emergency Volunteers. Other states call their organizations State Guards, State Military Reserves, State Militias or State Defense Forces. One wonders why this Michigan group doesn't simply join the authorized and organized Militia of Michigan.

Further evidence that states retain the power a govern and regulate militias can be found in American Jurisprudence: "...the state governments have the power to regulate or prohibit associations and meetings of the people .. and they also have the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and. the right to suppress armed mobs bent on riot and looting.

"Prohibiting any body of men, other than the regular organized militia and the regular troops of the United States, to associate themselves together as a military company or organization, or to drill or parade with arms without a proper license, is not violative of the federal Constitution."

In light of this guidance, states have enacted legislation regarding militia-type training. The California Penal Code Section 11460 states:

"(a) Any two or more persons who assemble as a paramilitary organization for the purpose of practicing with weapons shall be punished by imprisonment in the county jail for not more than one year or by a fine of not more than one thousand dollars ($1,000), or by both.

"As used in this subdivision, 'paramilitary organization' means an organization which is not an agency of the United States government or of the State of California, or which is not a private school meeting the requirements met forth in Section 12154 of the Education Code...

"(b)(I) Any person who teaches or demonstrates to any other person the use, application, or making of any firearms, explosive, or destructive device ... or any person who assembles with one or more persons. for the purpose of training with ... the use of any firearm ... with the intent to cause or further a civil disorder shall be punished..."

The Second Amendment should not be confused with the legality of citizens militias. The NRA, while supporting and defending the amendment, does not believe that the right to keep and bear arms is dependent upon membership in a militia, and has drafted this response:

"It is the NRA's view, based on law (Article 1, Section 8 of the U.S. Constitution; Title 10, U.S. Code, Section 311(a)), court precedents, and legal historical interpretation, that all able-bodied persons, explicitly those between the ages of 17 and 45, are members of the federal unorganized militia, except members of the organized state guards ... the National Guards of the various states (which also serve as a part of the National Guard of the United States, a military reserve subject to nationalization by the President of the United States), and certain government officials. An "organized citizen militia" must be created under the Constitution itself and/or the laws of a state.

"Title 10, U.S.C., clearly affirms the existence of the citizen militia; it is little changed since the original Militia Act of 1792 (except for the addition in this century of recognition of the third type of militia, the federally supported National Guard, in addition to the enrolled and unenrolled militia).

"Further, the individual right to own firearms is guaranteed by the Constitution, but the right to own firearms is not at all dependent upon the militia clause. The militia clause of the Second Amendment merely adds to the reason for the right, which is a common law right rooted in the right of protection of self, family, and community.

"The Second Amendment guarantees an individual's right to arms; participation in a citizen militia organization does not make that right more valid nor any stronger."

-- Wayne Anthony Ross