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“Unorganized” Militia

On the very face of the Constitution “the unorganized militia” is an oxymoron.

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Oxymoronic “Unorganized” Militia

The very idea of an “unorganized”, and therefore “unarmed” and “undisciplined”, “militia” must be one of the most perverse and dangerous subterfuges and subversions of the Constitution ever to be insinuated into America’s legal system. Piercing this kind of statutory conundrum depends upon a detailed understanding of what constitutional Militia actually are as the Constitution uses that term.

Oxymoronic “Unorganized” Militia

Notwithstanding that the clauses in the original Constitution pertaining to “the Militia of the several States”[1] and the Second and Fifth Amendments all speak with one clear and consistent voice, and notwithstanding that they are all parts of the selfsame “supreme law of the Land”[2]—which “[t]he Senators and Representatives [in Congress]” as well as “the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support”[3]—the Constitution’s commands remain unfulfilled. Worse yet, not withstanding that “[T]he Militia of the several States” are the constitutional institutions which, properly organized, would secure WE THE PEOPLE’S “right to keep and bear Arms” and maximize its political significance and practical efficacy. Yet next to no Americans know anything about them today. The reason for this Justice Story pinpointed long ago:

“[T]hough * * * the importance of a well-regulated militia would seem so undeniable, it cannot be disguised that, among the American people, there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization it is difficult to see. There is certainly no small danger that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by th[e Second Amendment] of our national bill of rights.”[4]

Story wrote his concerns in the mid-1800s. Unfortunately, his insight into the “growing indifference” among Americans has proven all to prophetic. For what he recorded only in its beginnings has come to pass in full in modern times: both with respect to the Second Amendment—as evidenced by  the plethora of plainly unconstitutional “gun control” statutes on the books at the National, State, and Local levels; and also, to an even greater degree, with respect to the Militia Clauses of the Constitution[5]—as evidenced by the way the General Government and the States have cordoned off as impotent and useless in the so-called “unorganized militia” a huge portion of the population, with next to no complaints from anyone.

For the prime example, the foundational contemporary Congressional statute that purports to deal with the Militia is fundamentally flawed:

(a) The Militia of the United States Consists of all able-bodied males at least 17 years of age * * * under 45 years of age who are, or who have made a declaration of intention to become citizens of the United States and 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 Naval Militia.[6]

The problems here are that—

First, the Constitution allows for no “militia of the United States” at all. In contradistinction to the “Armies that Congress may “raise and support”,[1] and the “Navy” that it may “provide and maintain”,[2] and which the Constitution recognizes as “the Army and Navy of the United States”[3] Congress enjoys no power whatsoever to create such a National “militia”. Rather, the only true constitutional Militia are “the Militia of the several States“. These “may be employed in the Service of the United States”[4] and may be “called into the actual service of the United States”[5]—but even then they remain “the Militia of the several States”. The constitutional duties they may perform for the General Government do not change their constitutional identities as State establishments.

Footnotes:

1.) U.S. Const. art. I § 8, cl. 12.

2.) U.S. Const. art. I § 8, cl. 13.

3.) U.S. Const. art. II § 2, cl. 1 (emphasis supplied).

4.) U.S. Const. art. II § 8, cl. 16 (emphasis supplied).

5.) U.S. Const. art. II § 2, cl. 1 (emphasis supplied)

Second, as evidenced by some 150 years of pre-constitutional American history, “the Militia of the several States” should be composed of at least all males from 16 to 60 years of age, not some less-inclusive set—and now with the emancipation of women,[1] they would be included too.

Footnotes:

1.) See e.g., U.S. Const. amend. XIX.

Third, the the Constitution allows for no dichotomy between “organized militia” and “unorganized militia”, but instead mandates that Congress “provide for organizing * * * the Militia” in their entirety, with no exceptions, exclusions, or excuses express or implied[1]—other than, of course, the types of exemptions allowed under the pre-constitutional Colonial and State Militia Acts, that are part and parcel of the constitutional definition of “Militia”. And “where no exception is made in terms, none will be made by mere implication or construction”.[2]

The Framers knew how to draft legal language that distinguished between a whole and its parts. Indeed, precisely with respect to the Militia in that very same clause, they empowered Congress “to provide for governing such Part of them as may be employed in the service of the United States”.[3] That they extended the power to “govern [ ]” only such Part of the[ Militia]”, but the power to “organiz[e]” applies to the whole.[4] This makes perfect practical sense, because the whole of “the Militia of the several States” should be “organiz[ed]” to such uniform National standards that any “Part of them” that may be “called forth”[5] can be expected to perform its assigned duties adequately; whereas only in that particular  “Part of them as may be employed in the Service of the United States” needs to be “govern[ed]” in conformity with those duties when such an occasion arises.

True enough, until common Americans receive or acquire some organization, arms, discipline, and training—whether by Congress, or in default of Congress by the States, or in  default of both of them by WE THE PEOPLE on their own—they constitute “Militia” in name only, and are not “well regulated”. Yet even the name by itself retains legal significance, because no amount of neglect by Congress and the States can excise “the Militia of the several States” from the Constitution, extinguish the duty of all able-bodied Americans to serve in them, and eliminate “the right of the people to keep and bear Arms” for that purpose. So, unless Congress and the States may destroy the Militia’s very constitutional status by getting their practical substance, “unorganized militia” are a constitutional impossibility.

To be sure, the Constitution also empowers Congress “[t]o * * * grant Letters of Marque or Reprisal, and make Rules concerning Captures on Land and Water”,[6] with no exceptions. Yet for generations Congress has let this ground lie fallow.  Although on superficial examination these powers may appear anachronistic, as part of a program of “homeland security” designed to protect America’s maritime borders in the most comprehensive manner economically feasible “Letters of Marque and Reprisal” might serve uniquely beneficial purposes. In any event, the question of deploying privateers is ultimately for Congress, which has a fiduciary duty to exercise those powers whenever and wherever that exercise is necessary and proper, but otherwise not.[7] Distinguishably the Second Amendment settles once and for all whether the exercise of Congress’s power “[t]o provide for organizing, arming, and disciplining, the Militia” in their entirety is necessary and proper. The Founding Fathers believed the necessity to be of such magnitude that they expressed it as a general conclusion of law applicable to every State: “[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”. So Congress’s duty in that regard as to the whole “people” is beyond cavil or evasion.[8]

Footnotes:

1.) U.S. Const. art. I, § 8, cl. 16 (emphasis supplied).

2.) Rhode Island v. Massachusetts, 37 U.S. (12 Peters) 657, 722 (1838).

3.) U.S. Const. art. I, § 8, cl. 16 (emphasis supplied).

4.) On this rule of construction, see e.g., Williams v. United States, 289 U.S. 553, 572-573 (1933).

5.) U.S. Const. art. I, § 8, cl. 15.

6.) U.S. Const. art. I, § 8, cl. 11.

7.) Compare United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), with U.S. Const. art. I § 8, cl. 18.

8.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 51-52.

Fourth, although plainly “organized” both the National Guard and the Naval Militia, and their State components as well, are not—and constitutionally cannot be—any parts of “the Militia of the several States”, if only because they are not coextensive with WE THE PEOPLE as a whole.[1]

Footnotes:

1.) State Guards are the “Troops” the “States may keep * * * in time of Peace” “with [ ] the Consent of ingress”. See U.S. Const. art. § 10, cl. 3. See generally, e.g., Ansell, “Legal and Historical Aspects of the Militia”, 26 Yale Law Journal 471 (1917); Wiener, “The Militia Clause of the Constitution”, 54 Harvard Law Review 181 (1940); David Hardy, “The Militia is Not the National Guard”, in Larry Pratt, Editor, Safeguarding Liberty: The Constitution and Citizen Militias (Franklin, Tennessee: Legacy Communications, 1995), at 99. See also Perpich v. Department of Defense, 496 U.S. 334 (1990).

Fifth, Congress has left what it calls “the unorganized militia” (and the great number of other Americans whom Congress disregards altogether) entirely unorganized, unarmed, undisciplined, and ungoverned by any statute of the General Government—notwithstanding that Congress’s explicit authority and duty in the premise is precisely “[t]o 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”, not “[t]o provide [against] such readiness,[1] or arbitrarily to redefine “the Militia of the several States” so as to exclude millions of eligible individuals.

Footnotes:

1.) Compare U.S.  Const. art. I, § 8, cl. 16 (emphasis supplied) with United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), and with Martin v. Hunter’s Lessee, 14 U.S. (1 Wheaton) 304, 328-329 (1816).

By consigning huge numbers of Americans to the “unorganized militia” and relegating others to no “militia” at all, Congress prevents itself from performing to a satisfactory degree its own vital constitutional duty “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”,[1] because tens of millions of Americans are wholly unprepared to be “call[ed] forth” with the “organize[ation], arm[s], and discipline[e]” necessary and proper for those functions.

And if so many individuals eligible for—and constitutionally required to serve in—the Militia remain unorganized, unarmed, and undisciplined, then the President, as “Commander in Chief * * * of the Militia of the several States, when called into the actual service of the United States”,[2] cannot satisfactorily exercise his constitutional power to perform  his constitutional duty to “take Care that the Laws be faithfully executed”[3] in those situations when and where a significant portion of the three constitutional Militia ought to be “call[ed] forth” * * * to execute the Laws of the Union”. So, by stripping the President of the means to employ and fulfill his constitutional power and duty, Congress violates its own duty “[t]o make all Laws which shall be necessary and proper for carrying into Execution * * * all * * * Powers vested by th[e] Constitution in the Government of the United States, or in any * * * Officer thereof”.[4]

Footnotes:

1.) U.S. Const. art. I, § 8, cl. 15.

2.) U.S. Const. art. II, § 2, cl. 1.

3.) U.S. Const. art. II, § 3.

4.) U.S. Const. art. I, § 8, cl. 18.

Inasmuch as “[a]ffirmative words are often, in their operation, negative of other objects than those affirmed”,[7] the constitutional power of Congress “[t]o provide for organizing, arming, and disciplining, the Militia” [8] absolutely precludes Congress’s exercise of any imaginary contradictory power either to leave any part of “the Militia of the several States”  unorganized, unarmed, and undisciplined, or to refuse “[t]o make all laws * * *  necessary and proper” for preparing “the Militia of the several States” for “the service of the United States”.[9] Thus on the very face of the Constitution “the unorganized militia” is an oxymoron. [10]

The primary purpose of the Militia is not simply military, but ultimately political in nature. After all, it is “[p]olitical power [that] grows out of the barrel of a gun”.[11] The Militia are “necessary to the security of a free State”[12]—and therefore without the Militia either “a free State” will lack “security”, or the “security” that does arise from some other source will support a “State” that is other than “free”. Indeed, precisely because the Militia are not only “necessary to the security of [every] free State” but also integral parts of the Constitution’s federal system, the likelihood is that, without the Militia, the entire Constitution will fail, and America’s present form of government will become destructive of the ends for which it was instituted.[13]

1.) U.S. Const. art. I, § 8, cls. 15 and 16; art. II, § 2, cl. 1. And see U.S. Const. art. IV, § 4.

2.) U.S. Const. art. VI, cl. 2.

3.) U.S. Const. art. VI, cl. 3.

4.) Joseph Story, Commentaries on the Constitution of the United States (Boston, Massachusetts: Little, Brown, and Company, Fifth Edition, 1905), Volume 2, § 1897, at 646.

5.) U.S. Const. art. I, § 8, cls. 15 and 16 and art. II, § 2, cl. 1.

6.) 10 U.S.C. 311.

7.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).

8.) U.S. Const. art. I, § 8, cl. 16.

9.) U.S. Const. art. I, § 8, cls. 16 and 18; and art. II, § 2, cl. 1.

10.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 53.

11.) Quotations From Chairman Mao Tse-tung (Peking, China: Foreign Languages Press, First Edition, 1966), at 61.  (emphasis supplied).

12.) U.S. Const. amend. II.

13.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 926.

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Constitutional Militia are State government institutions, thoroughly civilian in character. It is by the efforts of "the Militia of the several States", that the "security of a free State" can be preserved throughout the Union.

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