Memorial Day

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Let us Pray

Father

Today, though mindful of our faults, we remember those who have died in the service of their country, for it was your Son who taught us that there is no greater love than he who gives his life for another.

We ask you to take those who have died into the warmth of your presence.

We ask for strength an comfort for their families.

We ask that those who were wounded have a speedy recovery and a long and happy life.

We thank you for those who have retuned safely home.

Most of all we ask that we will never have to add to the list of those we remember this day.

Thy will be done.

We ask this through our Lord and Savior, your Son Jesus Christ, and in union with the Holy Spirit.

Amen

So much effort

And nothing to post.


I tied an experiment with changing the format. I did not like the result and attempted to change it back. It came up worse. And Blogger was showing an error.


Blogger help lived down to it’s reputation.

Between Google and having made multiple backups I got fixed (I hope – fingers are crossed!)

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.

The Unorganized Militia

When the United States was established the founding fathers assumed that the militia would be the backbone of our defense. While it has not worked out that way, the militia clauses are still in the Constitution and law. Many people have a poor understanding what of the militia is, especially the Unorganized Militia. Many assume that the Unorganized Militia is some sort of Common Law structure that exists independent of governmental action, and that consequently citizens can on their own initiative organize themselves as a militia, because they are members of the Unorganized Militia. This understanding has given rise to the so called:”Militia Movement” a series of organizations that have formed themselves to be “militia”. However, this does not agree with the historical record, not is it consistant with intent of the authors of the constitution and laws governing the milita.


To understand the constitution's provisions for providing the common defense, reviewing them is a good place to start.

The US Constitution provides for a Militia. The Congress may establish laws:

Article 2 section 8
Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Clause 16: 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;

These clauses assumes that every one knows what a militia is, thus there was no need to provide a definition.

This is different than the Army and Air Force which Congress established on the authority of

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Title 10 Section 311 b) 2) of the US Code is the enabling statute:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, [NOTE: members of the regular services] under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. b) The classes of the militia are - (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

It does not state duties or functions of the Unorganized Milita, which must be determined from the legislative history and case law regarding the Militia.

However state laws sometimes provide for three classes of militia. For example:

9‑8‑102 (c ) The Wyoming code defines the States Militia as:

a) The militia of the state is divided into the organized militia and the unorganized militia.

(b) The organized militia consists of the following:

(i) Such elements of the land and air forces of the national guard of the United States as are allocated to the state by the president, the secretary of defense or the secretary of the army or the air force and accepted by the state, hereinafter to be known as the Wyoming national guard; and

(ii) Wyoming state guard forces, when organized.

(c) The unorganized militia consists of all persons liable to serve in the militia but not commissioned or enlisted in the organized militia.

Twenty-five states have State Guard forces.

The Constitution and Federal and State Law authorize a militia, provides for two types of organized Militia and an Unorganized Militia. But there are no detailed definitions in the constitution or law. To see how we got here and what the founders and Congress intended by the different types of militia, we need to look at their historical development.


The Royal Charters for the first Colonies gave them the right to establish militias. These were a continuation of the English Militia system. They were always organized. For each town a company was established and for each county a regiment. Officers were appointed, usually selected by election by unit members, but the commission was from the Governor. Every able-bodied white male between the ages of 16 and 60 was a member, required to provide himself with a suitable musket and equipment. (In modern terms we could say that the Colony was providing for defense by imposing unfunded mandates on the local government and citizens.). After independence the militia continued on the authorization of the state constitutions. After the US Constitution came into effect Congress passed the Militia Act of 1792 providing a common framework for the militia and calling the militia into Federal service. Under this law the President could call a states militia into the service of the United States for 90 days. But this required the permission of the governor, and the militia could not be deployed outside the US. Except for the 90 day requirement these were considered implicit constitutional requirements. When longer terms of service in wartime were required, the President called for volunteers by state who were mustered into the Army (Clause 12 above) as Volunteers. Volunteer army units were often based on militia units.


The company met for muster four times a year. Sometimes a regimental muster would be substituted. If there was a danger of foreign or indian attack the muster could be monthly or in a few cases weekly. If someone did not attend they had to pay a small fine. If they did not have the proper equipment they paid a fine. Muster day consisted of close order drill, musket drill, and maybe some skirmishing practice in the morning. Target practice was seldom done - the militiaman had to pay for their own ammunition. The afternoons were usually a town picnic paid for by the fines of no shows. Families came, and a good time was had by all. If there was a serious danger of attack the afternoon would also be drill and the fines would pay for target practice.

These local Militia companies served several purposes. They provided a rudiment of training, served as a home guard if the town was attacked, and provided a basis for recruiting volunteer forces to help protect other parts of the colony. When a volunteer force was needed, each company would be assigned a quota. If volunteers could not meet the quota the Captain would select who would be drafted to meet the quota. Theoretically the whole unit could be drafted. The few times militia units were drafted for any thing other than home guard duty were usually a disaster (i.e Bladensburg in 1814 and the burning of Washington.)

As the country became more settled, musters, attendance, and even the collection of fines became infrequent and eventually stopped. By the 1840's states were amending their laws to end the muster requirement. Commissions were granted for a time in these non-drilling regiments as a matter of social prestige, after the Civil War so many community leaders had held war service volunteer commissions that a militia commission provided no prestige and the practice was gradually discontinued.

From colonial times there was a different type of militia unit. Often called "volunteer militia." These were completely volunteer organizations that were first organized to provide the high cost units such as artillery and cavalry, often composed of the more prosperous members of the community who provided their own horses and purchased the cannon out of pocket. Later infantry units were organized. From the 1850’s or earlier these were the only militia units that received training. These units provided the backbone of the units that were called up in major wars and are the ancestors of the current National Guard. But because they were militia they could not be called without the permission of the state governor. If volunteer forces were needed for a major war the unit would vote on whether or not to respond, sometimes they voted no. In some places they were excessively involved in local politics. Training was of varying quality. (To confuse the issue some general militia units over time evolved in to volunteer units.)

This is the status at about 1900. On paper, all adult males were members of the militia, but only a small number actually were part of units that met and trained. The laws governing mobilization assumed the original concept of a universal militia. The militia laws also restricted the militia from any useful deployment. The wartime calling of volunteer units was a partial solution not suited to creating a modern Army in wartime. During the first 20 years the last century there were a number of reforms moving the Army out the 19th century into the 20th, The militia reform was an essential part.

The Dick Act (1903) and the 1916 and 1920 National Defense Acts created the basis for the modern Reserve and National Guard units. National Guard units (state militia) received federal funding if they met federal standards and were available for call up. Reserves for the Army that were not part of the state militia were authorized. All able bodied males who are not in regular services or the organized militia are by default members of the unorganized militia. The part of the organized militia enrolled in the National Guard is funded by the federal government, and administered by the states. States could from other militia units at their own expense.

The 1916 National Defense act established the Unorganized Militia is an inactive administrative category to account for the discrepancy between constitutional provision that assumes all able bodied adult males are members of the militia and the fact that current militia organizations are voluntary and only have a small minority of citizens as members.

The 1920 Act made clear that the National Guard was both a state militia (clause 16 above) so it could be called by the Governor as militia for local emergencies, and a reserve of the Army (clause 12 above) so that the President could order it to active duty as a reserve of the Army without the consent of the state governor.

This basic system still governs the organization of the National Guard and Reserves.

The "Militia Movement" is based on the the assumption that the community based milita units described above were created by the local community as an exercise of the rights of the members of the community. In fact (even though largely self administered) they were created on the authorty by the colonial/state governments on the basis of a Royal/Constitutional grant of authority.

Summary:

The “Militia Movement” organizations cannot be real militia since they were not established by law, these are at best gun clubs who like to wear camouflage on the weekends, and at worst violations of the neutrality and other laws.

The concept of an Unorganized Militia cannot be a common law right of citizens to establish their own militias. The militia of all sorts was always established as a delegated Royal prerogative and after 1776 as a legislative/constitutional act of the States.

Since statutory law established the Unorganized Militia in 1916, it cannot be a part of the inherited English Common Law from “time immemorial”.


See Unorganized Militia II


Selected references:

This is an article published in 1917 explaining the 1916 National Defence Act. It has a very good historical overview and what intent of Congress in passing the act. It is especially valuable because it was written before the current controversies.

This is a good modern summery of the militia laws. Note the article says the exact opposite of what one would expect from “Solider of Fortune Magazine” and from the expectations of the target demographic of the that magazine.


See also Arms for empire;: A military history of the British colonies in North America, 1607-1763, Douglas Edward Leach
and
History of the United States Army, Russell Frank Weigley

NOTE: This post started by expanding on comments I made in TM Lutas’s Flit TM (link in side bar) discussing the Unorganized Militia. The post sort of grew and morphed into something rather different.