Front Sight, Press

The old joke is, “Texas [or pick your own locality] is a nice place to be from,” with the implication being that it’s fun to have it in your background to tell stories about, but you don’t really want to live there. We appear to have similar feelings about the militia. We want the notion there enshrined in the law to justify our firearms and just in case TSHTF, but our feelings about a real, unorganized citizen militia and active participation in such a citizen militia are much more ambivalent – we don’t really want to live there. I would imagine that more than a few of us would be mightily put out were the president to call up the militia as George Washington did to put down the Whiskey Rebellion. Most of us don’t even have the gear to report to a muster even if we wanted to.

Those opposed to private ownership of firearms have attempted to insinuate that the Second Amendment with its quaint talk about “a well regulated militia” is an anachronism, obsolete and out of its time. The collectivist argument holds that in today’s world, the militia is the National Guard and reserves, and a volunteer citizen militia is unnecessary, and perhaps dangerous.

While few apparently to want to live there, everyone seems to be an expert on the Second Amendment and the militia. Everyone seems to believe that they know precisely what constitutes a militia and what the founders’ intent for the troublesome amendment was. In most cases, it would pay for us to go back to the books. In this observer’s humble opinion, many if not most, interpret the 2^nd and the history of the militia through the lens of what we want them to be rather that what they were and are.

The recent decision by the federal court of appeals which ruled the Washington D.C. handgun ban unconstitutional has suddenly etched the militia debate in sharp relief in the national dialogue. This ruling could turn out to be among the most significant events in the history of Second Amendment law. It makes the Miller decision of 1939 look like an insignificant mess (which it is). The Parker decision is a carefully written scholarly document that reveals tremendous erudition and command of the history of the Second Amendment. A careful reading of this document will show that it references almost every significant historical and legal source on the idea of the militia that is available to us. Our militia education could literally begin with this document. In reading through it, I was both surprised and impressed. Its full name is “Shelly Parker, Et Al., Appellants V. District Of Columbia And Adrian M. Fenty, Mayor Of The District Of Columbia, Appellees”

At the core of the D.C. decision is the question of the nature of the militia, and the relationship between individual arms and militia participation. What is really stunning to me about the court’s decision is the thoughtful consideration given to the idea of the militia and its relationship to individual members of the society. It is clear that this court does not consider the idea of the militia to be an irrelevant anachronism, nor does it consider the militia to be limited to the federalized National Guard. And most importantly, it sees the Second Amendment as protecting the right of citizens to keep and bear arms irrespective of organized militia participation.

“The crucial point is that the existence of the militia preceded its organization by Congress, and it preceded the implementation of Congress’s organizing plan by the states. The District’s definition of the militia is just too narrow. The militia was a large segment of the population—not quite synonymous with “the people,” as appellants contend—but certainly not the organized “divisions, brigades, regiments, battalions, and companies” mentioned in the second Militia Act.” — Parker V. District Of Columbia. pp. 32-33

OK, so that’s really cool. For once we won a court battle. Woo Hoo! So what? Does this mean that we all have to go down to the court house to enroll in the militia, and buy a rifle and some BDU’s so that we’ll be ready to muster the next time the Canadians decide to invade? The short answer is no, not really, but maybe we should be thinking more seriously about the meaning of the militia than we do. Is the militia anything more than an interesting legal construct in today’s world? Should the idea of the militia be revived in a real-world practical sense?

Much has changed since 1792. We have a huge standing army, something the founders warned us against. We have a National Guard and we have a huge, militarized domestic police force that likes to run around in ninja garb with AR-15’s and scare the hell out of children and old ladies. Further, the likelihood of invasion by a foreign power seems remote (if you don’t count the illegal immigrants flooding across the southern border). Is there a role for the militia to play in today’s setting?

Some background and clarification of terms might be helpful. Since the beginning of American militia law in 1792, a distinction has been made between the organized militia and the unorganized militia. The organized militia is what we now call the National Guard, although prior to 1916 these units were called state militias. They were and are organized fighting units under the direct legal control of the state governments. The unorganized militia is really the element that concerns us, and the real thrust of the Second Amendment is about the unorganized militia rather than the organized. The Parker decision reiterates this. The unorganized militia is that larger pool of armed citizens who could be called upon in a time of great crisis. It is composed of virtually all of the citizens (in the old days, men) who could bear arms. In the beginning, free white males between 18 and 45 were required to enroll, and were required to equip themselves with a rifle and other equipment within six months of their enrollment. Participation in the unorganized militia was not voluntary; it was mandatory in much the same way that we require young men to register for the draft when they turn 18. In practice, most passed their time of militia eligibility without ever being called up, but the unorganized militia nevertheless performed its function by maintaining the pool of manpower and weapons from which the organized militias could draw, and in handing on skills and traditions to new generations. More importantly, the unorganized militia stood ready to defend home and community in the event of a sudden emergency to which government entities were unable to respond in a timely way.

“The statute thus makes clear that these requirements were independent of each other, i.e., militiamen were obligated to arm themselves regardless of the organization provided by the states, and the states were obligated to organize the militia, regardless of whether individuals had armed themselves in accordance with the statute. We take these dual requirements—that citizens were properly supplied with arms and subject to organization by the states (as distinct from actually organized)—to be a clear indication of what the authors of the Second Amendment contemplated as a “well regulated Militia.” Parker V. District Of Columbia. p. 34

While it’s a fascinating notion to contemplate, we aren’t likely to disband or drastically reduce the Armed Forces, the Guard, or the domestic police force, although I think a compelling economic argument could be made for a reduction in the standing Armed Forces and greater reliance on a non-professional citizen militia. Organizations like the Civil Air Patrol are a good example of volunteer, self-equipped units that can fill the gaps in professional military and law enforcement services.

On the other hand, if another war breaks out somewhere, our regular armed forces may be so taxed that some mobilization of the unorganized militia will take place, either in the shape of a draft or in the formation of “civilian self-defense corps.” They won’t call it a “militia.” There’s too much negative baggage with the word. Nevertheless, it is doubtful that the unorganized militia will be used again in the way it was in the Whiskey Rebellion, The War of 1812 or the Texas War for Independence. If it is, a whole bunch of bad things are going to have to happen first.

One place we can start is by developing some militia attitude. By that I mean law-abiding patriots taking seriously the ideal of the militia, and the charge to be responsible for the safety and security of home, community, and self. With that comes a need for readiness, preparation and training. Hurricane Katrina wrote in bold strokes the hazards of relying upon government agencies for our safety and security.

Militia attitude isn’t motivated by hatred or fear. To the contrary, militia attitude is motivated by a love of liberty, self reliance and self determination. It is motivated by a profound devotion to the priniciples of the Constitution and an enduring hope for the dream of America. It is also defined by a willingness to take up arms to defend those things it holds dear.

“Thus, even after the founding-era militia became “well regulated,” it did not lose its popular character. The militia still included the majority of adult men (albeit, at the time, “free able-bodied white male[s]”), who were to arm themselves, and whom the states were expected to organize into fighting units. Quite unlike today’s National Guard, participation was widespread and mandatory. As the foregoing makes clear, the “well regulated Militia” was not an elite or select body. See Silveira, 328 F.3d at 577-78 (Kleinfeld, J.). While some of the founding fathers, including George Washington and Alexander Hamilton, favored such organizations over a popular militia, see THE ORIGIN OF THE SECOND AMENDMENT at xlvii (David E. Young ed., 2d ed. 1995), the Second Congress unambiguously required popular participation. The important point, of course, is that the popular nature of the militia is consistent with an individual right to keep and bear arms: Preserving an individual right was the best way to ensure that the militia could serve when called.” — Parker V. District Of Columbia. p. 35

I believe that it was the intent of the founders to create a citizen militia which would be armed on a par with potential invading hostile forces. The Militia Act of 1792 illuminates the intent of the Second Amendment pretty well. This force of citizen soldiers were to be self-armed and not on the payroll of the federal government. They were to serve extremely limited tours, and only be called up in an emergency. Is this archaic? In a way it is, but the underlying concepts are not. People need to be able to defend themselves and their communities because the federal government may not always be able to do so. This means private ownership of combat effective firearms. America might be less tempted to engage in these overseas military adventures, the “cop to the world” stuff, if it depended more on a true citizen defense force and less on the expensive professional army, and how different would be the tax burden.

The Parker decision is an historic document in itself, regardless of where the case goes from here. It provides a gateway to the legal thought about the militia and the right of citizens to keep and bear arms stretching back all the way to the very earliest days of this republic. I heartily encourage you to read it. It’s nourishing food for developing some militia attitude.