MILITIA - HISTORY AND LAW FAQ 1/6 version 1.01 July, 1995 Part 1 - Introduction + Summary

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MILITIA - HISTORY AND LAW FAQ 1/6 version 1.01 July, 1995 Part 1 - Introduction & Summary Material Part 2. - Quick Reference and List of Questions Answered Part 3. - History of the Militia in America Part 4. - The Militia Today Part 5. - Legal Issues for the New Militia Part 6. - Afterword by Mark Pitcavage -------------------------------------------------------------- Part 1. - Introduction & Summary Material ----------------------------------------- 1.0 Read this First ---------------------- This FAQ is quite long and some of the language and concepts are (especially in the courts cases) specialized or archaic. The first-time reader is advised to read through Part 1 completely before going on. A list of all the questions in the FAQ can be found in part 2. 1.1 Definition of New Militia ----------------------------- This FAQ uses the term 'new militias' to describe the armed paramilitary groups that have been forming in the United States in recent years. The term excludes the National Guard and the state defense forces defined in 32 USCS s.109(c). 1.2 Copyright -------------- Copyright (c) 1995, Sheldon Sheps, all rights reserved. This FAQ may be posted to any USENET newsgroup, on-line service, or BBS as long as it is posted in its entirety and includes this copyright statement. Similarly, non-profit hardcopies of this FAQ may be made as long as it is reproduced in its entirety, includes this copyright statement, and is not included in commercial collections or compilations. This FAQ may not be distributed for financial gain. This FAQ may not be included in commercial collections or compilations without express permission from the author. Sheldon Sheps juggler@interlog.com Toronto, Canada 1.3 What does [MP] at the End of an Answer mean? ------------------------------------------------ This FAQ is an outgrowth of a thread on the Militias and the Constitution in some of the usenet newsgroups. It owes its quality to Mark Pitcavage, of the History Department of Ohio State University. Pitcavage is a historian of the militia. His Ph.D. dissertation _An Equitable Burden: The Decline of the State Militias, 1783-1858_ should be completed in the fall of 1995. He has published in a variety of places, including the Reference Guide to U.S. Military History, the James Madison Encyclopedia, and the War of 1812 Encyclopedia. His first article on the militia was "Ropes of Sand: Frontier Militias, 1801-12" in _The Journal of the Early Republic_ (Winter 1993), and his second is "Burthened in Defence of Our Rights': Opposition to Military Service in Ohio in the War of 1812." in the Summer/Fall 1995 issue of the journal _Ohio History_. He has presented scholarly papers at the U.S. Army Center of Military History, the Northern Great Plains History Conference, and the Society for Historians of the Early American Republic annual conference. His many contributions to this FAQ are identified by [MP] at the end of an answer. Thank you Mark, for both your contributions to the thread and your decision to work with me on this FAQ. Pitcavage can be reached at mpitcava@postbox.acs.ohio-state.edu . He also has a home page with this FAQ, more militia information, and other neat stuff at: http://www.greyware.com/authors/pitman . 1.4 Other Acknowledgements --------------------------- Some of the other contributors to the thread and this FAQ, although they may not necessarily agree with the contents are: John J. D'Amato, Steve Crocker, 3arb@qlink.queensu.ca (Andy), adelling@ucs.indiana.edu, James Jennings, David F. Prenatt Jr., Jon_Hendry, Charles C. Anesi, Ken Barnes, Robert Tundra, jondw@ix.netcom.com, Riley M. Sinder, Mark Venema, Barbara O'Brien, John Toland, Thomas B. Cox, Michael R. McAfee, Julie Cochrane, Ted Frank, Scott Malcolmson, John W. Engel, Carl Haggard & prcdcf@aol.com If I've left anyone out, or there are corrections, or you want your name dropped, please send e-mail. 1.5 Availability of this FAQ ----------------------------- The FAQ should start showing up in news.answers and wherever news.answers is archived in a few months. The overloaded FAQ gods have a substantial backlog. The FAQ will be regularly posted to misc.activism.militia. It will be separately posted to talk.politics.guns, alt.conspiracy, talk.politics.libertarian, alt.society.sovereign, alt.society.revolution, alt.politics.usa.constitution, alt.politics.reform, alt.society.resistance, and alt.revolution.counter with follow-ups directed to alt.conspiracy. It is also available by WWW at http://www.greyware.com/authors/pitman . If you would like to archive this FAQ on anonymous ftp or on a WWW page, please e-mail me for permission. 1.6 Dedication --------------- This FAQ is dedicated to Ken McVay whose incredible efforts in creating an electronic archive of information on the Holocaust inspired me to spend the time, effort and money needed to create this FAQ. You can find his work by anonymous ftp: ftp.almanac.bc.ca or on the web at http://www.almanac.bc.ca 1.7 Forward: The Power to Cloud Men's Minds ---------------------------------------------- I've long believed that words have an amazing ability to shape thought and deed. Sometimes, the right words make everything clear. Sometimes, to paraphrase the immortal Shadow, Lamont Cranston, words are used as "the power to cloud men's minds." It was in the postings of Mark Pitcavage that I first learned of the distortion of the terms "militia" and "unorganized militia" by the new militia. Rarely have words been more successfully used "to cloud men's minds." I decided to make an effort to help clear away the clouds by creating this FAQ. Mack Tanner, in his article ("Extreme Prejudice" _Reason Magazine_, July 1995, pp.43-50) argues that the largest part of the new militia movement represent a new phenomenon. He describes them as: "The armed, but legitimate, political activists. This is a new phenomenon, at least in this century. These are socially successful people who respect and obey the law, but who are organizing and arming themselves because they fear they may be attacked by agencies of their own government." (p.44) As Mark Pitcavage discusses in his Afterword, these individuals do not approve of current American society or its government. They want to return to the good old days of Davey Crockett, Daniel Boone, Lexington and Concord, the true Constitution, the good old laws. For these inidividuals and their supporters using the term "unorganized militia" is a brilliant move. The word "militia" conjures up these historical images. But the term "unorganized militia" does much more: If anyone questions the legitimacy of forming new militia units just whip out your handy copy of Title 10 of United States Consolidated Statutes, turn to section 311 and read out the definition of "unorganized militia." That's us, you say, and either state or imply that the definition means that citizens may/should/must form their own militia. Tanner provides a typical example of how the term "unorganized militia" can be distorted and its history ignored to support and legitimize the actions of the new militia. He states: "To understand what the militia movement is talking about, one needs to understand a bit of federal law. While most of us never think about it -- or even know about it -- every American male spends 28 years as a member of the militia, whether he wants to belong or not. United States Code , Title 10, Section 311, describes the militia of the United States as consisting of all able-bodied males at least 17 years of age and under 45 years of age. If we are not members of the National Guard, then we are, by law, members of the unorganized militia who can be called to service at any time by the appropriate legal authority." (p.43) Tanner never mentions the history of the term "unorganized militia" which this FAQ discusses in great detail. Federal law first used the concept in 1903. Since that time, through riot and war, the unorganized militia have never been called to service. Barring the collapse of American civilization its very unlikely they ever will serve. Worse, he ignores the fact that the "unorganized militia" was a term invented to allow individuals to escape from doing compulsory militia duty. However, the real trick is in his very next sentence as he links the "unorganized militia" with Mom and apple pie. "Any two or more American men can therefore claim to be an association of members of the unorganized militia, just as they might be an association of voters, taxpayers, parents or citizens." The "unorganized militia" are not like the other groups, inasmuch as the others are voluntary organizations without legal status or statutory responsibilities. The "unorganized militia" is a creation of statute law and a part of the state militia. State militia are a form of hierarchical military organization under civilian political control. Hardly a group that bears comparison to the P.T.A. 10 USCS 311 does not legitimize the formation of "associations of members of the unorganized militia." Those sympathetic to the new militia eagerly embrace this incorrect interpretation of the purpose of the "unorganized militia". After all, according to Tanner, these are people who respect and obey the law. He notes that they often believe in conspiracy theorists. Common to most of these theorists is that their claim to having found the truth in information that the government doesn't want you to know. For example, hidden away in the federal Armed Forces law, are these little known definitions of the militia. Thus these interpretations of "militia" and "unorganized militia" mesh perfectly with the preconceived notions of these people. The payoff from these interpretations is to create an illusory legitimacy for these groups. I have no doubt that their constant citing of 10 USCS 311 creates support for the new militia and makes members more comfortable. Some new militia leaders, despite being able to rhyme off the history of every gun law and quote every Founding Father on the benefits of gun ownership, are genuinely ignorant of the meaning of the term "unorganized militia". However, many of their own leaders must know the truth for accurate interpretations are readily available. The new militia wants to end the hypocrisy and hidden agenda of politicians and government officials. These new militia leaders are no better when they continue to use incorrect interpretations. Finally, I'd like to respond to a posting from a member of a new militia. He said that the that the "history and law of the militia doesn't matter" because "we are doing what is right." He may be sincere in his beliefs, but I think that in order to know your actions are right you must understand how they fit into a historical, legal and moral context. 1.8 Areas of Agreement and Controversy -------------------------------------- History - The history of the militia presented here is very much the standard history of the militia as presented in modern histories of the militia available in most large public or university libraries. However, it is not a well-rounded history of the militia as it concentrates heavily on institutional and constitutional issues. One charge made against modern history books and modern historians is that they are distorting the history with present day views. In the case of the militia, as far as this FAQ is concerned, the views expressed here would be very similar to the views of historians and commentators of the time. Moreever, much of the information in this FAQ is provided by contemporary views on the militia by non-historians, that are readily available for confirmation by the reader. This is done by extensively quoting from the major court cases on the militia from as early as 1820 to the latest in 1990. Often, this FAQ is not concerned with the actual ruling of the court, but rather how the decisions of the courts show a common and continuing agreement about the meaning and history of the militia. The cases, statutes, and law review articles cited here should be available to the public in the law library of any American (or Canadian) law school. There are, of course, some controversies over the interpretation of events, but at the level we are discussing in this FAQ, the agreement is very broad. As to the Second Amendment, this FAQ is not about gun control; and spends little space discussing the Second Amendment. Current Law - There is very little controversy about current laws governing the militia. It is agreed that all power over the militia is shared between the federal and state governments. There is no real disagreement that the new militia movement is not authorized by either state or federal law. Members of the new militia have no privileges, rights, duties, or immunity for their action over and above those of other members of society. The only way they can obtain privileges, rights, duties, or immunities would be by laws passed by either the federal or state government. No such laws exist. The new militia are not protected by either the militia clauses of the Constitution nor by federal or state law. Not being protected does not mean forbidden. When these groups do things that don't break any laws, then there is nothing to stop them from doing them. When they do break the laws, there is nothing to protect them. The only real area of controversy in this entire FAQ, is whether or not laws against unauthorized military organization or unauthorized armed parading are constitutional. And if they are constitutional, what behavior constitutes unauthorized military organizations or unauthorized armed parading. These laws were held valid in the 19th Century by the U.S. Supreme Court and have been held valid by lower courts in the 20th Century. However, an argument can be made that these laws are unconstitutional or too vague, or that the behavior of the new militia does not violate these laws. These issues are discussed in greater detail in Part 5. 1.9 Summary The militia have existed in the United States since the founding of the colonies and continues in existence today. From the time of the founding of the colonies until the period of the Articles of Confederation, the militia were governed by the charters and laws of each colony. During the period of the Articles of Confederation the states retained almost complete control over the militia with only some relatively minor control given to the National Government. Under the Constitution since 1789, control over the militia has been divided between the state and federal government. In the 20th Century, the federal government dramatically increased its control over the militia. The organization and membership of the militia have changed over the centuries. However, at all times, membership, duties and militia responsibility were spelled out by written law. 1.10 What is a militia? A. A militia is a body of armed citizens, with some military training, who may be called to temporary active military service in times of emergency. Militias are generally understood to be a part-time, nonprofessional fighting force, distinguished from regulartroops or a standing army. In the United States, the term 'militia' has historically been associated with the colonial and state militias that existed since the early days of settlement. 1.11 This FAQ examines only American militias. 1.12 Who was the militia? A. It has changed over time and place. When militia duty was compulsory, it was usually required of all able bodied males. Statements like the following were common amongst militia supporters in the 1780's: "I ask, sir, what is the militia? It is the whole people, except for a few public officials." (George Mason, 3 Elliott, Debates at 425-426) "A militia, when properly formed, are in fact the people themselves... and include all men capable of bearing arms." (Richard Henry Lee, Senator, First Congress, Additional Letters from the Federal Farmer (1788) at 169) These words were wonderful, but the reality was something different. For example, it was often possible to avoid militia service by paying a fine. And many colonies and states allowed a person to escape militia duty if they could find someone to substitute for them. The historical militia, which starting in 1792 was every able-bodied white male aged 18-45 except for those exempted (often reaching 50% or more), never was completely armed. In fact, most militiamen did not have guns; this is very clear from the surviving militia returns. In fact, the militia got the nickname "Cornstalk Militia" because so many of its members showed up for training with cornstalks instead of guns. You can look at _American State Papers, Class V, Military Affairs_, volumes one, two and three, which contain the militia returns that all governors forwarded from their states to the federal government from 1803 to sometime in the 1840s or 1850s. Most good libraries will have a set of _American State Papers_. Basically what you will find is that New England states such as Massachusetts and Connecticut were very well-armed, with most militiamen having guns, but Southern and Western states were very poorly-armed, with only a fraction (sometimes a very small fraction) of the militia having guns. This was due to several factors, but perhaps the most important such factor was that guns were very difficult to buy in those areas (poor availability and high prices). When militia duty became optional, only those who wanted to serve did so. The National Guard, as the militia of the states, traces its history back to those who volunteered for militia duty [MP]. In 1990, the U.S. Supreme Court stated at 110 S. Ct. 2426: "[T]he traditional understanding of the militia [is] as a part-time, non-professional fighting force. In Dunne v. People, 94 Ill. 120 (1879), the Illinois Supreme Court expressed its understanding of the term "militia" as follows: Lexicographers and others define the militia, and the common understanding is, to be 'a body of armed citizens, trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace'. That is the case as to the ACTIVE [emphasis added] militia of this state. The men comprising it come from the body of the militia, and when not engaged at stated periods in drilling and other exercises, they return to their usual avocations, as is usual with militia, and are subject to call when the public exigencies demand it." Note the use of the term "active" in the above definition. It shows judicial recognition that in both the late 19th Century and the late 20th Century, there is a sharp distinction drawn between the part of the militia that serves and the 'body of the militia'. This distinction is discussed in detail in this FAQ in terms of the organized or active militia and the unorganized or inactive militia. The term 'unorganized militia' did not exist prior to the 1830's when it was invented and put into state militia laws. The term became part of federal law in the 20th Century. Accordingly, there is no constitutional right to form unorganized militias that predates the constitituion. 1.13 What roles have militia units served in U.S. history? A. Militia units were used as defense against and an offensive force against Native Americans. They put down slave rebellions. Militia units put down insurrections in the early days of the American Republic. Militia units broke strikes and put down riots. Militia units fought in America's colonial wars, the American Revolutionary War, the War of 1812 and the Civil War. The National Guard fought in WWI,WWII, Korea, Vietnam and the Gulf. Governor Orville Faubus of Arkansas called out part of the Arkansas National Guard in 1957 to prevent the desegregation of Central High School in Little Rock. President Eisenhower responded by federalizing the entire Arkansas National Guard. The Arkansas National Guard followed the orders of the President and guarded Central High. The National Guard was at Kent State in 1970 and the National Guard was on guard duty in Oklahoma City in April, 1995. Militias have been part of the armed force available to the government of the day since the early days of the American colonies. 1.14 Summary of Federal and State Power over the Militia under the U.S. Constitution. A. The Constitution states: The War Powers Clause: Article 1, section 8 "[Congress shall have power to] ..."to declare war; ...to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; ..to make rules for the government and regulation of the land and naval forces". The Militia Clauses: Article I, Section 8, clauses 15 and 16: "[Congress shall have 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 the Officers, and the Authority of training the militia according to the discipline prescribed by Congress". All historians of the militia, commentators, courts, the state and federal government have agreed upon the following minimum meanings of the constitutional provisions over the militia. Many of these points are discussed in greater detail later in this FAQ. -- The federal power to create and raise an army is separate from the federal power over the militia. -- The militia were a state institution governed entirely by written state law prior to the Constitution. The Constitution gave certain powers over the Militia to the federal government; but otherwise the militia remained state institutions. Accordingly, all power over the militia is delegated to either federal or state government. -- The federal government could only "call forth" the militia for specified purposes. The state government could call forth the militia for any purpose. -- The words "provide for" did not mean that Congress had to actually do the organizing, give weapons, or enforce discipline over the Militia. Rather the term "provide for" is used in the sense of stipulating or making rules governing the organization, arming, and disciplining of the Militia. This meaning for "provide" can be found in any dictionary. This meaning is less common today than "provide" meaning "to supply". However, to pass laws setting standards was the intended and agreed meaning of the phrase. The proof is that for the first years of the militia under the Constitution, not one penny of federal money went to supplying to the milita. All of the supplying in this period was done by the states or individuals. It was a struggle to get the federal government during the early 19th century to spend any money on the militia. Today, the federal government provides almost all of the funding for the organized militia, the National Guard. -- The power of Congress to "provide for the organizing, arming, and disciplining of the Militia" was an ongoing power whether or not the Militia was called into federal service. -- The power of governing such Part of the militia as may be employed in the Service of the United States gives the federal government complete authority over the federalized (see 1.15) militia. -- There is only one institution of the militia; one that is partly under federal and partly under state control. 1.15 Was there ever a federal militia and what does 'federalized' mean? A. There never was a federal militia. The Constitution authorizes the federal government to call up part or all of one or more state militia units under certain conditions. This term is often called 'federalizing' the militia. When the Constitution refers to the militia it is always referring to the state militias. The Constitution specifies that the federal government can take control of the state militias for three purposes; to execute the laws of the Union[the federal government], to suppress insurrection, and to repel invasion. Part 2. - Quick Reference and List of Questions Answered --------------------------------------------------------- 2.0 Quick Reference -------------------- The references are to major discussions of these topics or cases. Historical Origin of the Term "Unorganized Militia" --------------------------------------------------- Was the term "unorganized militia" used in colonial America? 3.4 When did the term "unorganized militia" originate? 3.50 Who says that the term "unorganized militia" was a way for states to avoid the intent of the 1792 Uniform Militia Act? 3.51 What is the tradition or history that the new militias are following in embracing the term "unorganized militia"? 4.1 Articles of Confederation -------------------------- Articles of Confederation: 3.13 United State Constitution ------------------------- War Powers/Draft: 3.65, 4.26 State Troops versus Militia: 3.13, 3.20, 3.59, 4.3, 4.4 Militia Clause: 3.15, 3.50 First Amendment: 5.8, 5.9 Second Amendment: 3.21, 3.22, 5.8, 5.9 Ninth Amendment: 4.20 Tenth Amendment: 3.43, 4.21 Fourteenth Amendment: 5.4,5.9,5.10 Federal Law ------------ 1792 Uniform Militia Act: 3.29 1903 Militia Act (Dick Act): 3.61 1916 National Defense Act: 3.62 Current Militia Law: 4.3 State Law ---------- 1776 Virginia Bill of Rights: 3.21 1837 North Carolina Law - showing regulation of volunteer companies: 3.47 Current New Hampshire militia law: 4.8 Current New Hampshire militia law against unauthorized paramilitary organizations: 5.6 1876 Illinois Act against armed parading/unauthorized paramilitary organizations: 5.9 Current Texas law against armed parading/unauthorized paramilitary organizations: 5.10 Court Cases ----------- 1820, Houston v. Moore, U.S. Supreme Court - discusses federal and state constitutional powers over militia: 3.34 1839, Opinion of the [Massachusetts] Justices - state can exempt whomever they want from militia duty: 3.43 1859, Opinion of the [Massachusetts] Justices - state cannot change definition of who can join the militia once Congress has specified that definition; also an excellent view of the history of the militia as seen in 1859: 3.53 1879, Dunne v. Illinois, Illinois Supreme Court - State, can within federal law, exclusively decide size of militia: 3.59 1886, Presser v. Illinois, U.S. Supreme Court - Illinois law against unauthorized armed parading/unauthorized military organizations is valid: 5.9 1891, Chapin v. Ferry, Washington Supreme Court - discusses granting local authority over militia: 4.14, 4.15 1934, Hamilton v. Regents, U.S. Supreme Court - state may determine the degree of military training required of its citizens: 4.19 1944, Re Application of Cassidy, New York State Court, shows courts' attitude towards unauthorized paramilitary groups: 5.12 1957, NAACP v. Alabama, U.S. Supreme Court, premier case on freedom of association: 5.4 1969, Brandenberg v. Ohio, U.S. Supreme Court, merely advocating very unpopular views is not criminal: 5.4 view 1982, Vietnamese Fishermen v. KKK, U.S. District Court - in this Texas case, the state of Texas intervened to support the plaintiffs. The Court granted an injunction against members of the KKK to stop violations of the Texas state law against armed parading/unauthorized military organizations: 5.10 1990, Perpich v.Dept. of Defense, U.S. Supreme Court, opinion traces the history of the militia to the present:3.65 Political Voices on the Militia ------------------------------- George Mason: 1.10 Richard Henry Lee: 1.10, 3.16 John Smilie of Pennsylvania: 3.16 Dissent of the Pennsylvania minority: 3.17 Patrick Henry: 3.17 Federalist Reply: 3.18 George Washington: 3.33 Thomas Jefferson: 3.33 James Madison: 3.33 Examples of state Petitions and Resolutions to Congress to legislate a new, more effective organization of the militia: 3.37 Governor Nathaniel P. Banks of Massachusetts, 1860 3.52 Theodore Roosevelt: 3.64 Well-Regulated Political Voices - 3.22 --------------------------------------- John Sullivan, Patrick Henry, James Madison, Alexander Hamilton, The Federal Farmer(Richard Henry Lee), Benjamin Lincoln, Luther Martin, James Wilson, David Ramsay 2.1 Questions and Comments Answered in This FAQ ----------------------------------------------- ******* PLEASE NOTE ****** The following list of questions and comments responded to includes some that are incorrect. They are listed here to help the reader navigate the FAQ. Part 1. - Introduction & Summary Material ----------------------------------------- 1.0 Read this First 1.1 Definition of New Militia 1.2 Copyright 1.3 What does [MP] at the End of an Answer mean? 1.4 Other Acknowledgements 1.5 Availability of this FAQ 1.6 Dedication 1.7 Forward: The Power to Cloud Men's Minds 1.8 Areas of Agreement and Controversy 1.9 Summary 1.10 What is a militia? 1.11 This FAQ examines only American militias. 1.12 Who was the militia? 1.13 What roles have militia units served in U.S. history? 1.14 Summary of Federal and State Power over the Militia under the U.S. Constitution. 1.15 Was there ever a federal militia and what does 'federalized' mean? Part 2. - Quick Reference and List of Questions Answered --------------------------------------------------------- 2.0 Quick Reference 2.1 Questions and Comments Answered in This FAQ Part 3. - History of the Militia in America -------------------------------------------- 3.1 Standard Sources 3.2 Was there such a thing as a common law militia? 3.3 Was duty in the militia voluntary in the American colonies? 3.4 Was the term "unorganized militia" used in colonial America? 3.5 Aren't you simplifying almost 200 years of militia history? 3.6 How did the militia change in the 1774-1775? 3.7 How could a Revolutionary militia be under civilian leadership? They were after all, in revolt against the King? 3.8 Doesn't the uncoordinated behavior of the militia during and after Lexington and Concord, in 1775 show that the militia were armed citizens and not organized under the civilian leadership of the rebellious colonies? 3.9 But during the Revolutionary war, the militia were LOCALLY controlled for the most, each unit formed, armed and led by the local elected commander. Only the wealthier states that could afford to appoint provisional state militia officers did so. Everyone else fended for themselves. 3.10 How did the militias do during the American Revolutionary War? 3.11 Did the early state leadership exercise much control over the militia? 3.12 Were the states concerned during the Revolutionary war with the subordination of the military,including the militia, to civil authority? 3.13 What did the Articles of Confederation say about the militia? 3.14 What was Shays' Rebellion and how did it bring about more central control over the militia? 3.15 Was Shays' Rebellion an example of a private militia? 3.16 If the militia, as all the people armed, was considered good by the anti-Federalists, what was the evil? 3.17 Was there opposition to the strong federal power given by the Constitution over the state militias? 3.18 How did the The Federalists reply? 3.19 But isn't it clear from the debates surrounding the Constitution and the Second Amendment, that everyone intended for the militias to be the means by which the states could resist a tyrannical federal government. How does handing almost absolute control of the militias to the federal government fit with this clear intent? 3.20 What does the Constitution say? 3.21 What about the Second Amendment? 3.22 The Second Amendment refers to a "well-regulated" militia, but I have been told that this the term "regulated" in this time frame simply meant "smoothly functioning" rather than in the sense of "rules and regulations," and that there were no regulations for the militia during this time period. 3.23 Does the Constitution only give the federal government the power to organize,arm,and discipline the militia when it has been federalized? 3.24 What was meant by the federal power to 'provide for organizing' the militia? 3.25 Did the concept of the militia in 1792 ever include units that were not responsible to and militarily subordinate to civilian authority? 3.26 What are the two major pieces of federal legislation concerning the militia after the passage of the Constitution? 3.27 The Founding Fathers looked for inspiration to the common law of England before the passing of the first militia statute. The Anglo-Saxon militia, called the Fyrd, consisted of all able-bodied men; and it was the Fyrd that the founding fathers had in mind when they spoke of a militia. 3.28 What did the 1792 Uniform Militia Act do? 3.29 Some sections from the 1792 Uniform Militia Act 3.30 Wasn't the very decentralized 1792 Act the only type that could be passed by Congress? The very notion of the militia falling under federal authority was considered a violation of the intent of a militia (an armed citizenry), organized, trained, and disciplined by state legisatures. 3.31 Could Congress prevent the States from creating militias? 3.32 Why did the 1792 Act provide that militiamen purchase and maintain their own weapons? How did this change over time? 3.33 It is well known that George Washington was not happy with the 1792 Act as he had proposed a select militia system. But Presidents such as Jefferson and Madison, surely they must have approved of the 1792 scheme? 3.34 Was the 1792 Uniform Militia Act found constitutional? 3.35 Congress' right to provide for organizing, arming and disciplining militias does not give it the right to say that militias may not exist, nor can Congress prevent the militia from equipping itself differently from that which Congress provides. 3.36 Did the states object to the degree of central control over the militia in the 1792 Uniform Militia Act? 3.37 Examples of state Petitions and Resolutions to Congress to legislate a new, more effective organization of the militia. 3.38 The federal government did very little to exercise its power over the militia in the 19th Century. Right? 3.39 Did all states have militia laws? For those states which did not, wasn't the regulation of the militia up to the individuals of local communities? 3.40 How did individuals become 'enrolled' in the militia? 3.41 What happened to compulsory militia duty as called for by the 1792 Uniform Militia Act? 3.42 Why did the militia decline? 3.43 "Opinion of the [Massachusetts] Justices of this Court upon a question referred to them by His Exellency, Edward Everett, Governor of the Commonwealth, to wit, "whether it be competent to the State legislature to exempt from enrollment in the militia, all persons under 21 and over 30 years of age, in virtue of the general powers of exemption possessed by the States under the act of congress regulating the militia." 3.44 Did all parts of the militia system decline equally? 3.45 Could states disband militia units? 3.46 There is a notion that amongst the historical militias, the volunteer companies were self-regulating. Is this correct? 3.47 Example of regulations governing volunteer militia units. 3.48 What happened as opposition to the compulsory militia grew? Did the individual states take action? 3.49 Weren't there people who thought the abolition of the compulsory militia went against the spirit of the framers of the U.S. Constitution and the ideals of the Republic? 3.50 When did the term "unorganized militia" originate? 3.51 Who says that the term "unorganized militia" was a way for states to avoid the intent of the 1792 Uniform Militia Act? 3.52 In 1860, the state legislators of Massachusetts wanted to amend the state militia law so as to allow blacks to serve in the state militia. The governor vetoed the law. Why? 3.53 Why did the Massachusetts Supreme Court say in 1859 that the state could not allow blacks to serve in the militia? 3.54 How extensive was the volunteer militia movement up to the beginning of the civil war? 3.55 What was the role of the militia in the Civil War on the Union Side? To what degree were these militia units volunteer units as opposed to the enrolled militia? 3.56 What about the Confederate side? 3.56A How do you explain all the units named for those who raised them. Weren't these independent military companies? 3.57 What happened to the militia during Reconstruction? 3.58 Why did support for the state militia increase in 1877? 3.59 How did Peter J. Dunne get out of jury duty in 1879? 3.60 How did the 1903 Dick Act come about? 3.61 Sections of the 1903 Dick Act. 3.62 Sections of the 1916 National Defense Act 3.63 How was the militia reorganized in 1933? 3.64 How does one become a member of the National Guard today? 3.65 The 1990 U.S. Supreme Court decision of Perpich v. Department of Defense provides an excellent summary of the history of the militia from 1792 to the present. Part 4. - The Militia Today ----------------------------- 4.1 This FAQ examines the militia and the new militia today. In many cases, the reasons for the answers given are those spelled out in Part 3 - History of the Militia in America.This FAQ uses the term 'new militias' to describe the armed paramilitary groups that have been forming in the United Statesin recent years. The term excludes both the National Guard and state defense forces created under 32 USC s.109(c). 4.2 What is the tradition or history that the new militias are following in embracing the term 'unorganized militia'? 4.3 What's the current Federal Law? 4.4 Article 1, Section 10 of the Constitution states: "No state, shall without the consent of Congress.. keep Troops..in time of Peace." Are the militia "troops"? Are state defense forces part of the militia or are they state "troops" to which Congress has by s.109(c) consented? How can state definitions of those eligible/subject to militia duty be sometimes wider than the federal definition? 4.5 Could new militia groups join the state defense forces as units? 4.6 I suggest you read the United States Code, that provides for the "unorganized" militia, which includes "every able-bodied person between 17 and 45 years of age". Unorganized by the government, but it does not say we can't organize ourselves. Its still on the books, so its still legal for us to organize. 4.7 Do all states currently have militia laws? 4.8 Excerpts from a typical state militia law - New Hampshire 4.9 Under what circumstances can the state militia be called out? 4.10 Who at the state level can call out the state militia ? 4.11 In what way are new militias responsible to elected civilian authority? 4.12 Is a valid test of whether an organization is a true militia and not just a "bunch of guys and gals with guns" the fact that they recognize the authority of their governor to call them up for training or in case of an emergency? And if they recognize the authority of the governor to call them up, do they also recognize the authority of the President to call them up in case of "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States..." 4.13 The new militia groups have sworn allegiance to the federal and state constitutions, and some, like the Texas Militia and the San Diego Militia, were established working closely with civilian and law enforcement authorities. This must mean something. 4.14 New militias often say that the sheriff of a county has some special rights or privileges regarding the militia. For example: "I am pretty sure that a [new] militia must inform the country sherrif of their existence and that they serve the sherrif when asked. So a [new] militia is a militia if it forms with the knowledge of the county sherrif (highest ranking *elected* law officer in the county). And has as a mission preserving the rights of *all* as stated in the Constitution of the US." 4.15 How do you explain the New Hampshire law that protects their citizen militia? 4.16 What is the militias existence or status when not summoned by a governor or the President? Does it somehow evaporate conveniently? 4.17 Militia members are expected to train on their own, with their own weapons, so they would be ready to defend against all enemies, foreign or domestic. 4.18 The federal government does have rights to organize and equip the militia. Because the federal government has neglected its rights in this area regarding the "unorganized militia" does not mean the unorganized militia all of a sudden don't exist. I challenge the federal government to start regulating and equipping the [new] militia. 4.19 Doesn't the state have an obligation to train the "unorganized militia". 4.20 It has been argued that the Ninth Amendment supports the right of individualsto create 'unorganized' militia units. 4.21 Doesn't the 10th Amendment give individuals' rights over the militia? 4.22 The federal and state governments may control the organized militia; but not the "unorganized militia". The unorganized can be called up for duty, but until then what they do is their own business. 4.23 What about the Athens, Tennessee militia of 1946? The people of Athens, McMinn County, Tennessee in August, 1946 exercising their rights as individuals, formed a militia, and overthrew a vicious and corrupt county government. 4.24 What are the powers of the state over the creation and disbanding of their militia units? The constitution of my state doesn't specify any power to disband a mlitia unit. 4.25 But surely there is some way, we, the unorganized militia in Michigan, can get authorization by the governor? 4.26 It is the fact that the citizenry are considered militia, although unorganized, that gives the federal government the power to enact the draft of individuals into the armed forces. 4.27 The Constitution has been suspended since 1933 and Americans are living under admiralty jurisdiction. This view is sometimes expressed by those who also support the new militia. 4.28 Violations of the Constitution are more than provocations. They are themselves violations of law. E.g. 18 USC 241, Conspiracy to Violate Civil Rights, or 18 USC 242, Deprivation of Civil Rights Under Color of Law. They may also violate state criminal laws. Since the militia is obliged to enforce constitutional laws, they have the duty to enforce the laws being violated by such unconstitutional action. That means militiamen may be faced with the duty to arrest those trying to arrest them, and thus the divide between law and anti-law poses the threat of armed conflict. 4.29 Can a governor prevent the "unorganized militia" from training? Part 5. - Legal Issues for the New Militia ------------------------------------------- 5.0 This FAQ has shown that nothing in the Constitution or state and federal law that either authorizes or advocates the actions of the new militia. 5.1 What concerns should a member of a new militia have, even if they live in a state without laws against unauthorized military or paramilitary organizations? 5.2 Which states have laws regulating or prohibiting unauthorized paramilitary organization? 5.3 Is there a federal law against unauthorized military organization? 5.4 What are the reasons for stating that these anti-militia laws are unconstitutional? 5.5 The laws against private armies do not apply to the new militia. These laws came about as a result of the Ku Klux Klan's attempts to create a "militia" (I use quotation marks because the KKK's goal in organizing was to subvert the laws of the United States under the Constitution, thus making it illegal) in the aftermath of the Civil War. So, states began to outlaw private armies. However, since the [new] militias are not private armies, but in fact are regulated to certain extent in that they may be federalized, these laws do not affect them. 5.6 Typical state law against unauthorized paramilitary activity. 5.7 Many state constitututions have 'Second Amendment' type articles very different from the federal Constitution. Do these state constitutions make the state laws invalid? 5.8 Can a state prohibit unauthorized military organizations for actions that they take on private land? 5.9 In the 1886 case of Presser v. Illinois, 116 U.S. 615. the U.S. Supreme Court found constitutional an Illinois law against unauthorized military organizations and unauthorized armed parading. In doing so, the Court discussed the First and Second Amendments. 5.10 In the early 1980's large numbers of Vietnamese fishermen were competing with local Texans for the shrimp fishery. Things got very rough and the Ku Klux Klan became involved in acts of intimidation against the Vietnamese fishermen. A class action suit was brought, that amongst other things sought an injunction against the KKK's military organization for violating Texas law Article 5780(6) against unauthorized military organizations and unauthorized armed parading. The State of Texas intervened to support the application for the injunction, which was granted. In doing so, the Court provided some definitions for the term 'military organization'. 5.11 Are there any groups that could be charged under the state laws? 5.12 What kind of a reception are these groups likely to find from judges if they ever get to court? Part 6. - Afterword --------------------- Afterword by Mark Pitcavage

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