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Yes, no, or I don’t know? One is correct, one is wrong, and one is sad.

Claims of being in the militia have come on hard times partly due to some extremists. Denigrated by the anti-gun, leftist media and of course the Clinton Administration, it is unfashionable to consider oneself "militia." But the question I ask is not flippant, nor is it unnecessarily abstract. It is a simple query as to your knowledge of your legal status in your individual state and nation regarding your obligations.

Some of you are going, "Huh, what obligations?. " Or declare "I did my four years;" or "I sent in my Selective Service Card;" or "it’s all voluntary now, I don’t have an obligation." But you see that is not true, and serving four years didn’t forgive, or exempt your obligation. Sending in your Selective Service Registration didn’t fulfill it. And claiming "it’s voluntary" isn’t true either. You see you cannot escape your obligation to militia duty, unless you are physically unable to bear arms or you fall outside the traditional and statutory age limits on military service. In fact even being female doesn’t exempt you from "militia" status in some states either. Militia status is a complex web of history, common law, statutory law, constitutional empowerment and controls, and the statutes of the Federal and state governments.

We begin at our beginning……

A historical digression to Boston, April 1775.

General Gage, and his superiors, knew there was no real domestic gunpowder production in the colonies. The colonists were getting bolder and rowdier in their confrontations with the King's forces. Armed violence and resistance was becoming more likely. They came upon a plan! As the colonial militia held only small personal quantities of powder and lead for bullets, then seizing the larger commonly held community stores would leave the militiamen armed with rather clumsy clubs after about 25 volleys each. Rather clever, really. They sought to disarm the militia and control the American Colonies essentially via gun control. 

Gun control was the impetus behind the marching, behind Paul Revere’s famous ride, and essentially was the spark that ignited the American Revolution: Not the tea, not the taxes, not the Stamp Act, nor even the "intolerable acts."  It was the guns, our individual arms, and the British governments attempt at control of them.

One if by land, two if by sea.....

So a pre-dawn April 19th, 1775 General Gage had assembled his best troops, the grenadier and light infantry companies from the forces in Boston.  These elite units of Gage's forces in Boston,  about 600-800 strong, rowed to Charlestown and headed toward Lexington and Concord. They marched to seize the communally held gunpowder and lead stores of the Massachusetts militia and their one small cannon (the weapon of mass destruction of its day).

Learning of the British moves Paul Revere rode off on his famous ride, but was stopped by a British picket and captured, while William Dawes (riding to Lexington) and Dr. Prescott (to Concord) completed their rides. The cry was not "the redcoats are coming" but rather: "The Regulars are out!" They spread the word and the militias began to assemble, the first unit in action was Capt. John Parker who assembled his small band of 70 men on Lexington Common (an open area in the center of the village.) He issued his cautionary speech to his men:

"Stand your ground! Don't fire unless fired upon. But if they mean to have a war, let it begin here!"

And so they stood waiting until the British troops arrived and watched as the British formed line-of-battle. Major Pitcairn of the Royal Marines ordered:

"Lay down your arms, you damned Rebels, and Disperse."

The Lexington militia, faced with overwhelming numbers, was ordered by Parker to retreat, but to retreat with their arms. Someone, no one really knows who, fired a shot. The British troops then fired a volley, eight Americans were dead, and the War of American Independence had begun.

The British reformed their columns and continued their march on to Concord. By now men from the surrounding villages and countryside began to assemble. News of the first skirmish spread rapidly and an irrevocable point had been reached: "We have fired on the King’s troops!"  The irrevocable position of Treason had been attained, and there was no going back.

The British column in the meantime reached it’s objective, Concord, and searched the town finding only some odd stores, which they threw into the river: the powder stores, most of the lead, and the cannon had been moved and hidden.

At the North Bridge of Concord the militia’s, numbering now about 400 men, converged. Seeing smoke in the town, and fearing it was being put to the torch, they advanced and encountered lead elements of the British force. The militia fired the first full American volley of the War killing three of the Kings soldiers. The British fell back into the town of Concord, apparently more shocked by the event than actually injured by it. Faced with casualties, no stores to destroy, and mounting resistance they began to withdraw to Boston at noon, and to safety under the guns of the English Navy.

The march back was increasingly bloody and soon became a near rout as the colonials trailed along, more militia's converged and sniped at the column. British light infantry scoured countryside on either side of the road attempting to stop it, but the irate men of Massachusetts would not cease. Some fired a few rounds and went home, but most followed the column all the way to Boston making the trek a 16-mile corridor of fire.

In the end the British reached Boston just as darkness fell having suffered about 100 killed and missing, and 174 wounded, totaling 274 troops out of the 1,800 ultimately engaged in the fight. The Americans lost 49 killed, 5 missing, and 41 wounded out of some estimated 4,000 engaged overall. Not big numbers, but the significance of the Battles of Lexington and Concord wasn’t in the numbers of dead, even though in an 18th century context a force with nearly 20% casualty rate would be considered to have suffered a severe defeat. The significance is in the deed.

It was a stellar moment in history

The militia largely as individuals rose against their legitimate government, and their sovereign, and fired on his troops. This was of course, treason. He was their King. Those were the troops of their nation, British troops! They were British, colonials mind you, but British citizens none the less.

The militias then surrounded Boston and besieged the British forces. There was no "national government" and these were not "national troops." Nor were they initially directed by the so called "Continental Congress" which had no mandate from the people but were essentially a bunch of "rabble-rousers" meeting illegally to conspire to commit treason. They were rather independent militia companies which each township, settlement, and borough established by citizen participation. They were "militia" --an armed citizenry-- united for their common defense and controlled by the ad hoc Committees of Safety: an 18th century crime watch coalition, with guns.

On June 17th 1775, as a proof of the validity of the British theory on the affects of their attempted seizure of the gunpowder stores, the militia seized Breeds Hill and Bunker Hill on the North side of Boston and dug in. Then 2,400 British soldiers assaulted the position repeatedly and suffered 1,054 casualties, 226 of them killed – nearly 50% casualties of the forces engaged! The Americans had 450 casualties, with 140 killed. The British were only able to take the earthwork fort on the top of the hill when the Americans ran out of…. Gunpowder! The British then took the redoubt with the bayonet a weapon for which the clubbed muskets of the militia were no match. Had the gun control effort made by the British April 19th been successful, then the War of the Revolution might have been stillborn.

OK. So, what does that have to do with being in a militia or not?

Well, it sets the stage for the rest of the show. The British colonies had a militia system because of the English traditions of the fyrd, or militia. All the citizens responding to the need for a common defense and bearing their own arms. Lexington, Concord, and Bunker Hill are validations of the concept. To be sure we eventually needed the regular Continental Army, a national army of formed units of regular soldiers serving fixed enlistment, but the service of the militias was key to the opening of the war. The first battles for our independence were fought not by regulars but by farmers, tradesmen, sailors, hunters, farriers, blacksmiths, innkeepers, kids, and even ministers.

Actual independence from Britain wasn’t declared until July 4th of 1776, over a year after these battles at Lexington, Concord, Bunker Hill and the capture of the British Fort Ticonderoga by militiamen. This militia tradition is part of who we are and what we are, because it, that right to arms, is what made it possible for us to be a nation. That legacy persists today.

The Militia, then….

The militia of April 1775 were all able-bodied citizens with arms in their hands, their own arms. Arms that they felt no one, not even their lawful King, could deprive them of: A right confirmed in Magna Charta, and which these British citizens were willing to commit treason to defend. So they fought and, on winning,  they set about creating a nation. Part of that process included a debate over a Constitution, a national army, and the relation of the militia to the nation, liberty, and that Constitution.

The words of the Founding Fathers, the men who were there, echo the commonality of militia membership. Consider James Madison, often called the father of the Constitution, arguing in favor of a standing army and confirming the importance of the militia in Federalist Paper #46; and explaining why having a standing army would not be dangerous to the Republic as long as the militia exists:

"A  government resting on the minority is an aristocracy,  not   a republic,  and  could not be safe with a numerical  and physical force against it, without a standing army, an enslaved press  and a disarmed populace."  -- James Madison, The Federalist Papers   (No.46).

Madison states that the usurpation of the Federal government by a minority or tyrannical faction can only survive if it has all three factors under its control. The standing army to apply force. A press unable to challenge the tyrant or alert the populace. And A CITIZENRY REDUCED TO HELPLESSNESS BY BEING DISARMED.   Madison would doubtlessly view modern gun control as dangerous to Liberty now, as he viewed it in 1788:

Americans need never fear their government because of:

"the advantage of being armed, which the Americans possess over the people of almost every other nation. Let a regular army, fully equal to the resources of the country, be formed...  [the formula deleted stated that this army would be 1/100th of the able bodied population] ...of twenty-five or thirty thousand men. To these would be opposed a militia amounting to near a half a million citizens with arms in their hands." --James Madison, The Federalist Papers   (No.46).

Madison insists here that the armed militia outnumber the "standing army" by over ten to one.  Consider also that the entire population of the United States in the first census was only about 3 Million people. Then using his formulas with about 50% being female and excluded, and allowing for too young, too old, and the infirm, it appears that Madison’s 500,000 men "with arms in their hands" is pretty much every able bodied man of militia age at the time.

How BIG should the modern "militia" be?  Using Madison’s formula and ratios, with membership of 3 million in the whole US military: 50 MILLION militiamen!  Consider that next time someone suggests that the National Guard is "the militia." With a total current U.S. population of about 200 million, less roughly 50% female, equals 100 million males, less those ineligible because of age, illness, handicaps, etc… then 50 million militia is again about every able bodied male aged 16 to 45 years of age.

Madison, one of the leading Federalists is saying that armed citizens, the militia numbering 500,000 men, would be able to oppose a tyrannical standing army of a federal government. And that the militias arms are those already "in their hands" and thus outside the control of the Federal government --until now that is.  And Madison isn’t the only one who felt this way. Surprisingly both federalist and anti-federalist factions supported the independence and individually armed nature of the militia. They argued about many aspects of the Constitution but none argued that the militia was unimportant; none question the right to arms. In fact the surviving writings of the day show unanimous support for the individual right to arms in the Second Amendment.

Why you are in the militia

Well, it began as you see in the heritage of our English origins. It was reaffirmed at Lexington, Concord, Bunker Hill, and all during the War of Independence. Then in 1792 the First Congress was defining for the new Federal government what the "militia of the United States" was:

Militia Act of 1792

That the Militia of the United States shall consist of each and every free, able bodied male citizen of the respective States, resident therein, who are or shall be of the age of eighteen years, and under the age of forty-five years (except as hereinafter excepted) who shall severally and respectively be enrolled by the captain or commanding officer of the company within whose bounds such citizen shall reside.... That every citizen so enrolled and notified shall within ____Month_ thereafter, provide himself with a good musket or firelock of a bore not smaller than seventeen balls to the pound, a sufficient bayonet and belt, a pouch with a box therein to contain not less than twenty-four cartridges suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball, two spare flints, and a knapsack, and shall appear so armed, accoutered and provided, when called out to exercise or into service as is hereinafter directed...  --

Charles Bickford and Helen Veit, ed., Documentary History of the First Federal Congress 1789-1791, Vol. 5, (Baltimore, Johns Hopkins University Press: 1986), 1460-1461.

Notice the reference to "bayonets?" Remember Bunker Hill? Seems they learned something there that they now codified in their militia statute.  In the Constitution Congress is to "provide for arming" the militia. Well here it is, they provided that YOU had to go and buy your own arms and equipment.  A requirement that stayed on the books until the 20th century.

The Militia Today; or "Ok, fine. That was 1792, this is 1998"

True, but the common law origins of that militia remain, and it’s likely the principles that relate to power and control which the universal militia were to offset are equally valid today.

Then there are the current laws that define "militia." Like Title 10 United States Code section 311:

TITLE 10--ARMED FORCES

Section 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 commissioned officers of the National Guard.

(b) The classes of the militia are--

the organized militia, which consists of the National Guard and the Naval Militia; and

the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Section 312. Militia duty: exemptions

(a) The following persons are exempt from militia duty:

(1) The Vice President.

(2) The judicial and executive officers of the United States, the several States and Territories, Puerto Rico, and the Canal Zone.

(3) Members of the armed forces, except members who are not on active duty.

(4) Customhouse clerks.

(5) Persons employed by the United States in the transmission of mail.

(6) Workers employed in armories, arsenals, and naval shipyards of the United States.

(7) Pilots on navigable waters.

(8) Mariners in the sea service of a citizen of, or a merchant in, the United States.

So, if you meet any of the requirements of 10USC311(a) then you are in "the militia of the United States," and the only question is what CLASS of militia you are in.

NOTE: the President of the United States is not exempted since, as Commander in Chief, he commands the Militia of the United States when it is legally "called forth." Bill Clinton too is a Militia member!

There are other "laws" that affect your militia status. The particular militia law for your particular state for example, which as mine is Virginia, is the one I will cite.

Virginia Code 44-1.

Section 44-1 of Title 44 of the Code of Virginia:

"Section 44-1. Composition of militia. - The militia of the Commonwealth of Virginia shall consist of all able-bodied citizens of this Commonwealth and all other able-bodied persons Resident in this Commonwealth who have declared their intention to become citizens of the United States, who are at least sixteen years of age and, except as hereinafter provided, not more than fifty-five years of age. The militia shall be divided into four classes, the National Guard, which includes the Army National Guard and the Air National Guard, the Virginia State Defense Force, the naval militia and, the unorganized militia."

So there is a national requirement, and a state requirement. Notice too that in Virginia it’s not just able-bodied males, but "all citizens of this Commonwealth" and so includes female citizens too! Virginia has four classes of militia rather than the Federal governments two and the Virginia Self Defense Force cannot be "Federalized": which can happen to the National Guard.

What about that National Guard? Isn’t it "the militia?"

The National Guard cannot be the "militia" of the Constitution

The National Guard may well be "a militia," but it is not "the militia." At best it is just another class in "the militia." That the National Guard is somehow "the (only) militia" is the modern fiction taught to our young in most schools. I discovered this one night while checking a high school in my town after finding an open door while on patrol, inside the school I came upon the "Freedom Shrine." It included a cardboard display that said, "the Second Amendment protects the right of the states to have a National Guard." I was appalled at this gross distortion!  I knew better, and I was shocked that this is what was being taught. The second Amendment protects "the militia," the whole militia, and not just the organized part that the National Guard represents!

Not only that, but the National Guard fiction is the one being used to disembowel the right to arms that Madison and others were so anxious to defend and protect. If only the National Guards right to arms is protected, then he who controls the Guard controls the same power as one who controls a standing army. And IF the National Guard is subject to Federalization, even against the expressed will of the states, then it becomes to all intents and purposes another part of the National Army of the United States. And this is exactly what it has become, and is one of the reasons it cannot be, and is not the "militia of the Constitution."

First, is the issue of call up or Federalization of the National Guard. Madison and the others made sure that the Militia could not be usurped as a National Army by including the three restrictions of it’s call up in the Constitution, Article 1, Section 8:

"Congress shall have the Power…

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions."

Only under those three circumstances may the militia of the United States be "called forth." 

IF the National Guard may be sent at the Federal whim to any place, and for any purpose other than those three, it is either:

a.) being done illegally, or 

b.) the force being sent is NOT THE MILITIA OF THE UNITED STATES.

The National Guard was sent to Desert Storm to free Kuwait. None of the three conditions for calling forth the militia existed, ergo the National Guard is not, and cannot be under the Constitution, the Militia of the United States.

Second, if the Second Amendment protects only the National Guard’s arms, then the Federal Government cannot disband, disarm, disperse, deactivate or eliminate any National Guard unit, yet it does that routinely, even against the states wishes. What good is a militia as a counterpoint to the power of a National Army, or a runaway central government, if that government can simply take away the militia's arms, or order it disbanded? The Federal government does just that whenever it decides a state National Guard unit is no longer needed for the national defense: and that is another reason why :

1) the National Guard is NOT the sole militia of the United States, and

2) why the 2nd Amendment isn’t about the National Guard.

Third, the Supreme Court has already established that the National Guard is in reality another part of Army of the United States! (Perpich v. Department of Defense). The US government wanted to send Governor Perpich’s National Guard to Central America for "training," but in reality to support the government's activities against Nicaragua. Perpich opposed that activity and filed suit claiming that the government could not take the militia to do that. He lost.

"Since 1933, all persons who have enlisted in a state National Guard unit have simultaneously enlisted in the National Guard of the United States. In the latter capacity, they have become a part of the Enlisted Reserve Corps of the Army, but unless and until ordered to active duty in the Army, they retained their status as members of a separate state Guard unit." [Perpich v. Department of Defense, U.S. Supreme Court, No. 89-542, (1990) L Ed 2d 312].

So, if the Fed can call up the National Guard at a whim then it isn’t THE Militia, it’s just one more part of the Army of the United States: simply another form of standing army. You cannot be  ice and steam at the same time, neither can a federally dominated and controlled National Guard be the Constitution's "militia." 

Well, where does that leave us?

For most of you reading this you will find that you probably are in the Militia whether you want to or not. But having a Militia or being a militia member is not enough. A true militia MUST be armed to fulfill it's function.   The framers held the militia was to be a universal "body of the people with arms in their hands", and included the 2nd Amendment in the Constitution to insure that right to arms wasn’t violated.

In Article 1, Section 8 the Constitution also grants the power "to provide for arming the militia" to the Congress. The framers anticipated that the Militia could just as easily be disarmed, and neutralized, by that same Congress by simply not making any provision for arming the militia: which is essentially what our modern Congress has done. Or by destroying the right to arms by legislative acts of a confiscatory or deleterious nature (again which Congress has done). Or by making militia membership selective, picking and choosing the people allowed to be militia, handpicking those loyal to the regime.  To prevent this they opted to include a small amendment to Mr. Madison’s document.

"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 purpose of the 2nd Amendment is to insure that the individual right to arms, of the individual members of the militia of the United States, and of the individual states, cannot be disarmed by anyone- especially by the Federal Government.

Tenche Coxe, a friend of Madison’s and writing in a newspaper in support of Madison’s Constitution wrote:

"The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American." ---Tenche Coxe, Pennsylvania Gazette, 20 Feb. 1788"

Virginia’s George Mason echoes this with:

(The American Colonies were) "all democratic governments, where the power is in the hands of the people and where there is not the least difficulty or jealousy about putting arms into the hands of every man in the country. (European countries should not) be ignorant of the strength and the force of such a form of government and how strenuously and almost wonderfully people living under one have sometimes exerted themselves in defence of their rights and liberties and how fatally it has ended with many a man and many a state who have entered into quarrels, wars and contests with them." -George Mason, "Remarks on Annual Elections for the Fairfax Independent Company" in The Papers of George Mason, 1725-1792, ed. Robert A. Rutland (Chapel Hill, 1970)]

People who were there, who were intimately familiar with the issues of the day, uniformly hold that the Militia of this nation is a universal one made up of all the people, and more importantly "with arms in their hands." 

How anyone can doubt that the 2nd Amendment as a guardian and illustrator of that very point is beyond understanding. 

Perhaps those who deny it are simply turning Nelson’s "blind eye" to the signals that they simply do not wish to see and heed?

Perhaps they hate private arms so much they are willing to compromise the entire constitution in their zeal for arms control. 

Perhaps they are simply foolish, hoping blindly that the unthinkable will never happen here. 

However, tyranny isn’t dead in the world, and we are not immune to the ravages of injustice, or of government run amok. We have evidence in our own lifetimes of our own government doing the illegal or questionable. If private arms and the concept of the universal militia are insurance that it 'cannot happen here', that our liberty is inviolate or at least defendable, then the price of that insurance is cheap. Those willing to give up that insurance place us all at risk.

"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." 

--Benjamin Franklin

 Last updated: 09/21/2013 08:53:23              © Copyright 1998 William L. Liddell