In 1995 or '96, at a party thrown by a way-cool local Libertarian activist – whose monthly house parties sometimes attracted persons who shaded over from Libertarianism into the militia movement – I got into a discussion with a militia sympathizer over the nature and role of the militia in modern America. I had always assumed that nowadays “militia” means one of two things:
The National Guard of any state.
A completely private, unofficial military or paramilitary organization such as the Michigan Militia, etc., usually composed of persons hostile to or suspicious of the United States government and its policies.
But he told me, “You’re in the militia, whether you know it or not,” and referred me to a federal statute on the subject. Sure enough, there is one: 10 U.S.C. Sec. 311. From a government website, http://uscode.house.gov/usc.htm:
Even more surprising, when I went to my local law library and looked up this statute in the U.S. Code Annotated, an edition which includes cites and brief dicussions of all the important case law on every statute, I found – nothing. The statute is there but apparently it has never been at issue in any case before an appellate court; there has been no case law construing it. (This was, as I said, in '95 or '95; there might be some case law by now – but I’ve seen nothing about it in the news.) And, from what I know of U.S. history, the government has never used this “unorganized militia” statute for any purpose.
So why does this statute exist at all? What is the point of legally defining certain classes of persons as belonging to the “unorganized militia”?
(To keep this in perspective, the guy who pointed me to this information also subscribed to the theory that the 1995 bombing of the federal courthouse in Oklahoma City was arranged by the FBI to provide a pretext for cracking down on political dissidents. Nevertheless, on this one point, the “unorganized militia” law, he was right on the money.)
It exists defining the Federalist Papers and the views of the original Americans where-by there was no Standing Army and at the time no American could conceive there ever would be “Due to the coercive nature of large standing Armies”.
This is in effect because it also explains the 2nd Amendment, that it does apply to individuals.
Why?
Because all individuals between 17 and 45 comprise the militia and therefore by Judicial Review are entitled to weapons that would make them “ready-to-go” in service of the Militia should they be called into action.
The idea of the Militia (set forth by the Federalist Papers) was such that the citizens of the State would be ready to serve in the “organized militias” in the advent of War.
That is hard to do however when the State Government has limited arms for a “Standing or to be Standing” military, so especially at those times most soldiers showed up with their own guns.
And today would be the same.
I think that is the reason for the statute, to clarify those matters to some extent so that “reinterpretation” of the 2nd amendment could not opperate without limitations and also so that the Federal Government has a more authorized and justifiable reason to draft citizens into the military.
These are my views of why it is an actual law.
But also in a factual non-theoretical outlook.
Everything in Government down to how many toilet seats will be in the White House, must be written somewhere as a Law because it costs money to organize and all money is appropriated by laws “bills”.
I can’t pull these documents without going across the street, but it appears the “unorganized militia” just refers to those eligible for conscription into the “organized militia” in times for war.
So the statute exists merely to provide a standing authorization for, say, the president to revive the military draft without further authorization from Congress? That doesn’t make any sense – the statute defines the “militia” as including all able-bodied males from 17 to 45, but persons under 18 are not eligible for military service even on a volunteer basis.
Wild…the government never ceases to amaze me. Well, I only have 4 more years and I’m out of the unorganized militia for good.
What I wonder is why such a thing is still on the books, not that it was there to begin with. And I doubt this could be used for the draft, as my understanding of ‘militia’ is that its a local defense force, not to be sent to fight foreign wars.
But under the Constitution, the president is the commander-in-chief of all state militias and has the authority to call them into federal service at any time, as Lincoln did at the start of the Civil War.
Sure, but thats covered as they didn’t send them into a foriegn war…it was a rebellion in US territory. However with a general draft (not that I think we are likely to ever see one again) the president could and probably would be sending troops to fight in foreign countries…which wouldn’t be covered by this unorganized militia I wouldn’t think. Thats why you would need congressional approval for a special draft…otherwise you’d simply call up the militia and send em off.
Pravnik you can join the Nat’l Guard at 16 with parental permission I think so long as you are 17 before they send you off to Training in the summer (between junior and senior years).
