In Which The Post Affirms It Does Not Get "Militia"

There's a very sympathetic story Sunday by Elissa Silverman and Allison Klein, Plaintiffs Reflect on Gun Ruling, kind of a mini-profile of some of the plaintiffs in the case that prompted the DC Circuit Court of Appeals to strike down the city's ban on home ownership of loaded, functional guns. But we unfortunately revisit the term militia whose meaning the Post's editors and reporters believe is obvious. Silverman and Klein:

The court ruling hinged on the Second Amendment, which states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The District said the amendment applies solely to militias -- a position endorsed in the past by all but one of the nation's federal appeals courts.

Well, as we said recently, what's a militia? It's not just that, as defined in a now-deleted online story  and the one that appeared in print on Saturday.  As Eugene Volokh noted, four current meanings include:

1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2. a body of citizen soldiers as distinguished from professional soldiers.
3. all able-bodied males considered by law eligible for military service.
4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

And then there's 5, as Volokh added:

Incidentally, if the question is whether "militia" in the Second Amendment means just something like the National Guard, that's one thing that the Supreme Court has resolved:  The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." (Today, after the Court's sex equality cases under the Fourteenth Amendment, it would likely include women, too.) The Militia Act of 1792 took a similar view, as does the currently effective Militia Act.

The Post really needs to brush up on this (And the Volokh commenters who thought "just that" in earlier stories was an unadorned reference to the District's contention that the Second Amendment secures a right only to those in organized state militias are certainly wrong. That's what the Post thinks it means too, a construction that has no place in a straight news story).

The other problem is here:

Alan Gura, one of the plaintiffs' attorneys, said the residents who brought the suit are just like many District residents who want to feel safe and secure in their homes. They believe the Second Amendment gives them the right to possess a gun for that purpose...

The U.S. Court of Appeals for the D.C. Circuit ruled in their favor Friday with a 2 to 1 vote that found the Second Amendment gives them the right to have handguns in their homes.

No right is "given" here. The Second Amendment--and I think more broadly, the Bill of Rights--informs the world of pre-existing rights that the government is not authorized to seize. Defending your own life is about as elemental and pre-existing as it gets, which is why we have a Second Amendment and also why it's not called the Bill of Privileges.

Update: Thanks for the link from Tom Maguire at Instapundit. Two observations: Extra props to Tom for reading all the way through this post to find the fun part. Also, thank goodness I spell-checked "privileges."

I will also take advantage of this Instalanche (hey it still counts, I don't care what you say about Tom) by encouraging any slackers to reacquaint themselves with Soccer Dad, who has a bright new redesign and tackles the Washington Post's record on Daylight Saving Time. This is what we call a distributed attack on mainstream media.

Update Update:  David Hardy stops by to comment about early thinking about age and the militia, and aptly reminds us he's released a documentary available on DVD called In Search of the Second Amendment. Interesting angle on promotion: As of March 31, 2007, any purchaser of this DVD is given a non-exclusive license to show it on local cable access television. Any purchaser is also licensed, as of this moment, to show it to groups, meetings, and at fundraising events, and to donate it to libraries and schools. Libraries and schools are freely licensed to circulate it and show it to classes.

Comments

[RKV]

It bears repeating that 10 U.S.C. § 311 makes all males 17-45 (and some others) members of the Federal militia. We have so many laws today no one can know them all (that's a problem to discuss another day), but this is one which the WaPo certainly isn't paying attention to.

[Kirk Parker]

"It bears repeating that 10 U.S.C. § 311 makes all males 17-45 (and some others) members of the Federal militia."

How dare they leave me out! I'm 51 but fit, and an acceptable marksman-- where do I go to file an age discrimination claim? :-)

[KEVIN]

As Ronald Reagan once said:

" It's not that liberals are ignorant, it's just they know so much that isn't so."

[Christopher Fotos]

Well, as noted by Eugene Volokh excerpted above, the Supreme Court has also said stated "the Militia comprised all males physically capable of acting in concert for the common defense." I cede the field to an actual law professor here, but I imagine that part of what's going on is that the average male lifespan at the time wasn't 72 years old or whatever it is today. Let's say the average may have been alarmingly close to 46.

So short version, Kirk, you're in.

[tom gunn]

In miller the courts didn't decide an individual or collectve right - there was no need since there had never been and confusion.

The court didn't remand b/c Miller was not part of the/a militia, or that he was not a collective or that he was not protecting the state.

The court remanded b/c it had no judicial notice that the sawed off shotgun in question served in the preservation or efficiency of a well regulated militia.

You can read it and weep here:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=307&invol=174

The court went further and stated "These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

tom gunn

[Michael Kennedy]

Martini's three volume biography of Andrew Jackson points out that Jackson's support was based on his appeal to The Militia, that is all able-bodied males between the ages of 17 and 45. His election empowered this segment of the electorate who had been all but disenfranchised by the city elites and the merchants of the original colonies, especially those of New England and Virginia. Recent years have seen the power of this group eroded again but the court ruling will help to restore it.

[David Hardy]

There were debates in the early republic over proper age for the militia, most focusing on the minimum age, and some suggesting that disease was a major killer of soldiers, and 21 yr olds have more resistance than 17 yo, so raise it to 21. I suspect the late age cutoff simply reflected that by the mid-40s, a lot of folks were (after a hard life farming, etc., and no medical help worth naming) disabled, or at least not up to marching 20 miles a day on hardtack and salt pork.

BTW, I've released a documentary on the Second Amendment. It's at www.secondamendmentdocumentary.com.

[Robert]

Sounds to me like its way past time for every community to call out its militia just to get an idea of what they might have to work with..and we want everyone to bring their own weapon, ammo, and lunch.

On the town square sounds about right. Just so we can hear the shrieking from the left.

Can they declare themselves contientious objectors from Militia service?

[Waffle King]

Robert -

Conscientious objectors, maybe...Contentious objectors, most certainly.

[Poshboy]

And once we all assemble on the town green (or most likely, strip mall parking lots since there are a lot of us), 104 years of Congressional neglect of the Militia clauses in the Constitution will become quite apparent.

The militia is not the National Guard or the private armies of the mid-1990s--it's us. But Congress first forgot that critical idea in 1934 when it didn't remember it had a Second Amendment and started passing gun control laws (struck down when US vs Miller first was heard, btw). Perhaps with today's homeland security needs, they'll remember those parts of the Constitution once again.

[tom gunn]

The nfa was unconstitutional when the Miller decision was first rendered and remains so. It is only activist judges misreading that decision and subsequent ones that are at issue.

Most folks could accept the reason for the nfa at that time, however, over 75 years of real world experience has shown that gun control fails miserably as a crime control measure.

The militia serves several masters: The fed at their whim activated to enforce its will, individuals drawn from the armed people; the state at its whim activated to enforce its will, individuals drawn from the armed people; the people unorganized as the final defense against an overreaching fed or state, individuals armed acting alone or in concert for their common defense. For this reason is the second instituted to provide an armed force of the people guaranteeing the right to a free state(of being)!

tom gunn

[Pixelkiller]

First you need a firearm. Then, you need to become proficient in its use. And only then, you may be qualified to become a member of a militia. What-the-hell. There is no basis for the arguements of pro or anti firearm. It's spelled out in the 2nd amendment in our Bill of Rights as appended to our "contract"; the constitution.

[Donmeaker]

Regarding Title 10 Sec 311, also refers to another section which includes persons with prior military service, to age 65.

Job for the legislature: expanding the unorganized militia to include women. Another job: to define the kind of firearms that should be owned by the members of the unorganized militia. I would recommend weapons which accept and safely fire small arms ammunition that has been used by the federal government during the last 100 years. That would include .30/40 Krag, .45/70 Government, .30/03, .30/06, 12.7x99 aka .50BMG, 7.62X51 and 5.56x45 for rifles 12 gauge shotguns, and .45 Colt (perhaps .45 Schofield) .45 ACP, .38 Special, and 9mm parabellum.

Miller suggests that evidence that the militia would find a weapon useful would be material in determining whether ownership of that type of weapon would be protected. Since Mortars, Machineguns, Tanks, Artillery, antiaircraft missiles, and antitank weapons are routinely part of National Guard equipment, all those would be permitted and protected. Air National Guard are equipped with fighter and bomber aircraft, as well as unarmed transports and tankers.

One may also note that the Constitution gives Congress power to grant letters of Marque and Reprisal, which presumes the private ownership of well armed ships, certainly classed as a crew served weapon.

[Christopher Fotos]

Job for the legislature: expanding the unorganized militia to include women

Probably already done under sex-equality law developed under the 14th Amendment, according to Volokh.

[tom gunn]

Two thoughts come to mind. The organized militia is a coming together of individuals bearing their privately and individually kept weapons, which they use primarily for personal protection. The miller court would then protect the keeping of individual one-on-one weapons, not crew served guns or ordinance.

The second thought is when rights dissolve. Individual inalienable rights would never end, however, as the militia comes together the collective would transmute individual rights into weilding power as granted by the constitution. No government body has rights, only power granted to it by the people.

tom gunn

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