The Meaning of the Militia

1LT Aaron Barr — Tue, 30 Jun 2015 09:47:14 -0400

Being something of an argumentative jerk by nature, one of my favorite pastimes is to troll sites like the Huffington Post and other thinly veiled fronts for the AgitProp Committee of the COMINTERN. A common theme I see when the 2nd Amendment is being discussed is the Militia Clause with some even going so far as to ask me to which Militia I belong. Since this is a question relating to the Law, I find the legal definition the best place to start. Thankfully, the Militia is defined in law so I usually like to relieve the inquisitor of his or her ignorance by giving it to them as follows.

10 U.S. Code, § 311 – Militia: composition and classes

(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, 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.

This law was passed in the early 1900s and since then, court cases and changes in the Law have barred discrimination on the basis of physical disability, age and gender. So my response to this question is to say that I'm a member of the Unorganized Militia as defined by law, as is every person in this nation over the age of 17 who has not been barred the use of arms by law.

For even more fun, you might ask them whether or not laws barring the purchase of rifles and shotguns for those under 18 and handguns for those under 21 is age discrimination. This puts the person in the awkward position of having to either concede the point or admit that the Militia is, in fact, regulated. I hope this is helpful and for those who love to argue as I do, happy hunting!

Response by SGM Private RallyPoint Member made Jun 30 at 2015 10:15 AM

SGM Private RallyPoint Member — Tue, 30 Jun 2015 10:15:22 -0400

Agree about intent of the law regarding militia, just wish we took it more seriously.

Response by SGT Ben Keen made Jun 30 at 2015 10:21 AM

SGT Ben Keen — Tue, 30 Jun 2015 10:21:10 -0400

1LT Aaron Barr - I'm failing to see the question behind your post. Is there a certain question you are asking the community concerning what a militia is or what one can be in this modern day?

Response by SPC Elijah J. Henry, MBA made Jul 4 at 2015 1:03 PM

SPC Elijah J. Henry, MBA — Sat, 04 Jul 2015 13:03:24 -0400

1LT Aaron Barr, it is helpful when discussing the Militia Clause of the Second Amendment to keep in mind the other four Militia Clauses of the Constitution, namely Article I, Section 8, Clause 15; Article I, Section 8, Clause 16; Article II, Section 2, Clause 1; and the 5th Amendment. It is also helpful to draw our legal definitions from the time of the writing of the law in question, rather than from a statute written over a century later. Even Webster's 1828 Dictionary is three quarters of a century closer to the writing of the law in question. It says, "The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations." No, that's not the National Guard. The National Guard is created under Congress's Article I, Section 8, Clause 12 power to "raise and support Armies." It's also not State Defense Forces, which are created under Article I, Section 10, Clause 3 of the Constitution and Title 32, Section 109 of the United States Code.

I note that the Dick Act of 1903 describes an institution that is nowhere to be found in the Constitution, namely, the "Militia of the United States." Article II, Section 2, Clause 1 refers to "the Militia of the several States," and they are elsewhere referred to as simply "the Militia," but Constitutionally there is no such thing as a "Militia of the United States." Any definition drawn from the statute in question is therefore Constitutionally irrelevant.

I note also that in none of the five Militia Clauses of the Constitution will you find the creation of the Militia. "The Militia of the several States" are merely recognized as extant and vital institutions. Indeed, each State had had organized Militia -- generally comprising all able-bodied men between the ages of 16 and 60 -- for about a century and a half before the Constitution. So, the institutions existed prior to the framing of the Constitution, but they were incorporated into the legal structure of our Republic. The President was made their Commander in Chief (but only when they are called into the actual Service of the United States), and Congress was given specific powers and duties regarding the Militia, as well.

I note also that Congress's powers to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," and 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," are some of the powers of regulation referred to in the Second Amendment. Clearly, Congress has been neglecting its duties regarding the Militia for some time now. There is no provision for organizing, arming, or disciplining the Militia, let alone for calling forth such an organized, armed, and disciplined Militia for the stated duties of Article I, Section 8, Clause 15.

I note also, that, given the stated necessity of a well-regulated Militia in the Second Amendment -- notably the only time that the Constitution says anything is necessary for anything -- Congress is morally and legally forbidden to neglect its Article I, Section 8, Clauses 15 and 16 powers. Having been given the power to organize the Militia, they certainly may not leave them unorganized. Having been given the power to arm the Militia, they certainly may not disarm them. And, having been given the power to discipline the Militia, they certainly may not leave them undisciplined.

The kind of regulation that you suggested is the exact opposite of the regulation intended by the Constitution, as your kind of regulation is the kind that could regulate such a vital institution right out of existence!

Response by SFC Michael Hasbun made Aug 20 at 2019 11:06 PM

SFC Michael Hasbun — Tue, 20 Aug 2019 23:06:44 -0400

I'd like to politely point out that congress at the time the 2nd amendment was drafted was also kind enough to spell out precisely what the militia was composed of, and give guidance on the training and leadership requirements....

We'll ignore the racist part of it, "able bodied white males"...

But it's pretty explicit. Each and every free, able bodied white male between 18 and 45 is to be enrolled by the Captain in each state, provide their own arms and ammo, and attend regular drills and exercises, and when called upon.

Response by MAJ Ken Landgren made Nov 23 at 2019 4:06 PM

MAJ Ken Landgren — Sat, 23 Nov 2019 16:06:02 -0500

What organization do you belong too?

Response by SP5 Dennis Loberger made Nov 23 at 2019 10:09 PM

SP5 Dennis Loberger — Sat, 23 Nov 2019 22:09:30 -0500

At first glance, I thought Aaron Burr had come back

Response by FN Randy Bohlke made Dec 24 at 2020 6:04 AM

FN Randy Bohlke — Thu, 24 Dec 2020 06:04:23 -0500

Everyone wants to forget the last sentence our forefathers put in the 2nd Amendment "Shall NOT be Infringed Upon. " With that said any law against the 2nd Amendment is Unconstitutional and null and void.

Our forefathers created the 2nd to protect the 1st and so we could protect our Country against all enemies foreign or domestic.

Response by MAJ Ken Landgren made Dec 10 at 2022 6:33 PM

MAJ Ken Landgren — Sat, 10 Dec 2022 18:33:29 -0500

What was one of the most effective ways for the use of the militia in the Revolutionary War?