The Unorganizd Militia II

TM Lutas of Flit TM whose posts on the Unorganized Militia prompted writing my the previous post on the Unorganized Militia post sent an Email with some very pertinent comments.


I'm working through the source material right now but I think you haven't captured the reality of the thing. If the people are sovereign, they must, at some level, have the right to violence. I challenge you to construct a meaningful construction of sovereignty without it. At the same time, if we are not to have anarchy, such violence must be restricted and channeled in a reasonable way. I submit that the idea of an unorganized militia is an appropriate form for channeling and molding the necessary recognition that the people themselves have the right to do violence if they are to remain sovereign.

Thus it is not correct to say that the unorganized militia is not a part of the common law except insofar as the label itself seems to be of relatively recent vintage. The map is not the country and the label is not the thing itself. Sovereignty is meaningless without violence. Now normal people don't talk of such things on a regular basis. They are left between the lines, implicit and hopefully never used as there is no need. Those who tend to discuss this as a day to day affair tend, as a real world observation, to be obsessed nuts. That doesn't mean that they are in error, merely grossly counterproductive to their cause.

My wife doesn't generally bring up the topic of surgical removal of fingernails at mealtimes unless it is apropos of something that is mealtime conversation. That doesn't mean that she doesn't know how to do it or, when called for, will do it. Popular sovereignty and its attendant right to violence are similarly not for everyday conversation. It's also unrealistic to assume that government will be particularly eager to recognize the fact that it's not ultimately in charge in the US system.

The militia law, I would suggest, is a governmental attempt to restrain and channel this inherent right of a sovereign people to ultimately defend their lives, property, and liberty. Like a police choke hold, restraint in moderation is entirely of a different character than when it goes overboard, and results in death. There are rules for police choke holds and there are restrictions on the ability of the state to restrain the militia. In the US case, the regulation of the "choke hold" is in the text of the 2nd amendment, something that I find astounding that you did not include in your analysis. The entire bill of rights was written to prevent a government run amok from running roughshod over the rights of the people. Any assertion that militia are only creatures of the state have to at least confront the 2nd amendment. You have not done so. You may wish to correct that.




It would seem to me that reality of the thing is there are two issues. They are somewhat entwined because of their history but they should be considered separately. First is the right of people, individually and collectively to defend themselves. The second issue is what is the Militia? I think TM's disagreement is over the second issue. We seem to agree on the importance of the first.

If the people are sovereign, they must, at some level, have the right to violence. . . At the same time, if we are not to have anarchy, such violence must be restricted and channeled in a reasonable way.

Correct. They form a government. If the country is invaded and government does not or is incapable of defense, the citizens have the right to rise as a levee en masse. If the government becomes oppressive they have the sovereign right to remove it. Neither of which depend on the Militia, and exist even when there is not a militia.

The first function of government is the collective defense of its population against violence, foreign and domestic. And ironically, since governments end up with a virtual monopoly on the instruments of coercion, a government can be the biggest threat to the people it is supposed to protect.

The militia never included every one, for example women, but women also have the right to self-defense. Exercising rights to self-defense does not require a militia. TM sent me a link (see comments in the orgianal post) about Condolizza Rice’s father and friends patrolling their neighborhoods with personal weapons to protect against racist violence. They were individuals not a militia. But they were exercising basic human rights.

This is also why the Second Amendment right to keep and bear arms is not dependent on the militia, women have the right to keep and bear arms. The reference to a militia in the Second Amendment is preamble to state a reason why the right is important. Also since originally the Bill of Rights applied to the federal government, it made it impossible for the Federal Government to made an end run around the States duty to regulate the militia by infringing directly on the right to keep and bear.

The protection of basic human rights is dependent on a “democratic” system with a solid respect for the rule of law, that diffuses political power so that no one person or group can get in position to abuse rights. Related to this is a diffusion of the means of governmental coercion, i.e. state and local police instead of a national police force so that no one can control every thing. The militia was a good example of this, even though in theory a single military force its wide local administration made it impossible to use the militia to enforce any laws without wide spread consent. And a reason why, even though the classic militia structures are outdated, a major portion of our defense should rest with the National Guard and Reserves.





The militia is a means for the government to fulfill its duty to protect its citizens.

The militia law, I would suggest, is a governmental attempt to restrain and channel this inherent right of a sovereign people to ultimately defend their lives, property, and liberty.

In addition, I would rather suggest that the Militia system was brought to the colonies as the only economically feasible means of providing for defense. It still remains part of the Governments repertoire to “execute the Laws . . ., suppress Insurrections and repel Invasions.”

it is not correct to say that the unorganized militia is not a part of the common law except insofar as the label itself seems to be of relatively recent vintage. The map is not the country and the label is not the thing itself.

If it can be established that the thing itself existed, this would be a good point. I know of no examples of an “English” militia that exists separately from statutory or executive authority. Except for the American Unorganized Militia I know of no example where people who do not meet for training and have no structure are by design classed as a militia. Militias were always established by an action of the King, a legislature, a Lord or who had the right, or a person acting on delegated authority. Remember the Mutiny Act that made it illegal to raise an army without the permission of Parliament. This was a constitutional/statutory restriction on the Monarchs exclusive power to establish military forces. Up until then this was a purely Royal prerogative provided he had the money. Of course the Militia is not a standing army, even today if a group attempted to establish a militia in England without authority from Parliament they would be prosecuted under the successors to the Mutiny Act.

The Unorganized milita is an administrative category to account for the difference between a constitution that assumes a univeral militia and the fact that there is only a need for a small number of persons training in units. Simply the Constitution reserves to the States the Appointment of the Officers, and the Authority of training. The unorganized milita is a part of the milita that does not have officers appointed or authorty for training. The Congress and legislature provide laws for the calling of the milita. Only two or three states have a law that governns calling the Unorganized Milita, basically, report as individuals at the time and place the governor designates. Without officers, training or a valid way to call them out, the Unorganized Milita is incapable of fufilling the funcitions TM would like. The militia movement organizations cannot be classed as a real milita since the state did not appoint their officers or authorize training.



I think the confusion arises because in our early history there was:

1) A strong distrust of a standing army, given the manner in which the Parliementary and Royal goverments administered, used, and abused the standing army in the 1600’s this was a very reasonable opnion. An opnion reinforced by the Crown’s arbitary use of the Army in the colonies (where the Mutiny Act restrictions did not apply) just prior to the Revolution. Thus the Militia became the model defense organization in the popular mind.

2) The very entwined role of the local militia company in the life of a village blurred the distinction between the governmental establishment of the militia and the nrights of citizens.

3) The American Revolution was a revolt of the Colonies/States against the Crown. Since the militias were controled by the state legislatures, the calling the milita was a natural option. The action of the State Governments in calling the Militia be came confused with indivduals standing up to tyranee.

4) since it is not a topic of every day convesation it is easy for mistaken ideas to take hold.

While entwined in actual use in American history the basic human right of collective self-defense and the organization of the militia are separate things. In the nornal course of things the people exercise their "soverign right to violence" to "ultimately defend their lives, property, and liberty" by forming a governments. In our case the government established by consititutional/statuatory law the militia as one means of exercising this right.