# What is the purpose of the federal "unorganized militia" statute? **URL:** \ **Category:** Great Debates\ **Created:** [March 3, 2004, 5:56pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352 "2004-03-03T17:56:22Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 3, 2004, 5:56pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/1 "2004-03-03T17:56:22Z")
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: 1. The National Guard of any state. 2. 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:](http://uscode.house.gov/usc.htm:) > [@](#): > > -CITE- > > ``` > 10 USC Sec. 311 01/22/02 > > ``` > > -EXPCITE- > > ``` > TITLE 10 - ARMED FORCES > > Subtitle A - General Military Law > > PART I - ORGANIZATION AND GENERAL MILITARY POWERS > > CHAPTER 13 - THE MILITIA > > ``` > > -HEAD- > > ``` > Sec. 311. Militia: composition and classes > > ``` > > -STATUTE- > > ``` > **(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.** > > ``` > > -SOURCE- > > ``` > (Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85-861, Sec. 1(7), > > Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103-160, div. A, title V, > > Sec. 524(a), Nov. 30, 1993, 107 Stat. 1656.) > > ``` > > -MISC1- > > ``` > Historical and Revision Notes > > 1956 Act > > --------------------------------------------------------------------- > > Revised section Source (U.S. Code) Source (Statutes at > > Large) > > --------------------------------------------------------------------- > > 311(a) 311(b) 32:1 (less last 19 June 3, 1916, ch. > > words). 32:1 (last 134, Sec. 57, 39 > > 19 words). Stat. 197; June 28, > > 1947, ch. 162, Sec. > > 7 (as applicable to > > Sec. 57 of the Act > > of June 3, 1916, > > ch. 134), 61 Stat. > > 192. > > ------------------------------- > > In subsection (a), the words ''who have made a declaration of > > intention'' are substituted for the words ''who have or shall have > > declared their intention''. The words ''at least 17 years of age > > and * * * under 45 years of age'' are substituted for the words > > ''who shall be more than seventeen years of age and * * * not more > > than forty-five years of age''. The words ''except as provided in > > section 313 of title 32'' are substituted for the words ''except as > > hereinafter provided'', to make explicit the exception as to > > maximum age. > > In subsection (b), the words ''The organized militia, which > > consists of the National Guard and the Naval Militia'' are > > substituted for the words ''the National Guard, the Naval > > Militia'', since the National Guard and the Naval Militia > > constitute the organized militia. > > 1958 Act > > --------------------------------------------------------------------- > > Revised section Source (U.S. Code) Source (Statutes at > > Large) > > --------------------------------------------------------------------- > > 311(a) 32 App.:1. July 30, 1956, ch. > > 789, Sec. 1, 70 > > Stat. 729. > > ------------------------------- > > The words ''appointed as . . . under section 4 of this title'' > > are omitted as surplusage. > > AMENDMENTS > > 1993 - Subsec. (a). Pub. L. 103-160 substituted ''members'' for > > ''commissioned officers''. > > 1958 - Subsec. (a). Pub. L. 85-861 included female citizens of > > the United States who are commissioned officers of the National > > Guard. > > ``` 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.) ---
**Author:** ![The\_Broken\_Column](https://avatars.discourse-cdn.com/v4/letter/t/b9bd4f/32.png) [@The\_Broken\_Column](https://boards.straightdope.com/u/The_Broken_Column)\ **Post date:** [March 3, 2004, 6:46pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/2 "2004-03-03T18:46:52Z")
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”. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [March 3, 2004, 8:48pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/3 "2004-03-03T20:48:53Z")
There was a law on the books that specifically detailed the paperclips I was using in the federal courthouse? Far out. My U.S.C.A. on Westlaw and a citation search turned up quite a few citing authorities, including this rather well known one: > [@](#): > > In United States v. Rybar, 103 F.3d 273, 286 (3d Cir.1996), the Third > Circuit held that Rybar’s membership in the general, unorganized militia established by 10 U.S.C. § 311(a) did not cause his possession of a machine gun to be so connected with militia activity that the Second Amendment applied. While Rybar was not clear about whether it was adopting the states’ rights view or the sophisticated collective rights view, it seems more consistent with the latter. _U.S. v. Emerson,_ 270 F.3d 203 C.A.5 (Tex.), 2001. So it appears that you and I may be in the “unorganized militia.” ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [March 3, 2004, 9:06pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/4 "2004-03-03T21:06:00Z")
A few other case blurbs from the U.S.C.A.: > [@](#): > > 1. Conscription > > Congress, under U.S.C.A.Const. Art. 1, § 8, can by conscription organize, for foreign warfare the militia of the United States, as defined by this section. U.S. v. Stephens, D.C.Del.1917, 245 F. 956, affirmed 38 S.Ct. 579, 247 U.S. 504, 62 L.Ed. 1239. > > 1. Contractual effect of enlistment > > Enlistment in the active militia of the state, save in times of war or public danger or disturbance, is voluntary, and is a contract. State ex rel. Lanng v. Long, La.1914, 66 So. 377, 136 La. 1, Am.Ann.Cas. 1917B,240. > > 1. Age limits > > One not of prescribed age does not become a member of the militia so as to subject him to court-martial for desertion. Hoskins v. Pell, C.C.A.5 (Miss.) 1917, 239 F. 279, 152 C.C.A. 267. 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. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 3, 2004, 9:33pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/5 "2004-03-03T21:33:04Z")
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. ---
**Author:** ![Faldage](https://avatars.discourse-cdn.com/v4/letter/f/f4b2a3/32.png) [@Faldage](https://boards.straightdope.com/u/Faldage)\ **Post date:** [March 3, 2004, 9:44pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/6 "2004-03-03T21:44:32Z")
And does this mean we lose the right to bear arms after age 45? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 3, 2004, 9:46pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/7 "2004-03-03T21:46:05Z")
> [@pravnik](#): > > There was a law on the books that specifically detailed the paperclips I was using in the federal courthouse? Far out. Sure. Check out 13 U.S.C. 3515(B)(2)(a)(16)(D)(4), which states: > [@](#): > > (c) **Definitions** > > A “Gem-style” paper clip is a length of stiff steel wire bent into three flat, nested loops to hold sheets of paper together when they are inserted between the loops. The wire is a 1-mm-diameter steel cylinder that is 10 cm long. It is bendable in the fingers but stiff. The first loop (a) is a smooth, U-shaped turn to the right that starts 2 cm from the outermost end of the wire. The second loop (b) is a U-shaped turn to the left that starts 3 cm farther along the wire and has a diameter just small enough to fit snugly within the first loop. The third loop (c) is another U-shaped turn to the right that starts 2 cm beyond (b) and has a diameter just small enough to fit snugly within the second loop (as well as the first). The wire in each inner loop touches and runs parallel to the outer loop that wraps around it. All three loops lie in the same plane, and pushing them out of that plane just enough to slide several sheets of paper between them makes the paper clip act like a spring and squeeze the sheets together. > > (d) **pravnik** > > **pravnik** is hereby authorized to use between 13, but not more than 45, of the paper clips as defined in subsection (c) in any month starting on the 1st of the month at 12:01 a.m. and ending on the last day of the month at 11:59 p.m. Any paperclips used during those times must be accompanied by a Section 1856(B) form listing the purpose and use of each paper clip. Any paperclips used pursuant to this section shall be used only in official governmental business. Shooting paperclips from a rubberband, unbending them to pick teeth, and wearing them as ear, nose, or tongue rings is strictly prohibited. > > (e) Violations > > Any violations of subsection (d) shall be punishable by a fine not to exceed 24 bazillion dollars, a term of imprisonment of up to 12.3 seconds. Any sentence imposed pursuant to this section shall include the requirement that **pravnik** spend 13 hours a day explaining to people just what the hell **Broken Column** is talking about. There you have it. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [March 3, 2004, 10:02pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/8 "2004-03-03T22:02:13Z")
> [@BrainGlutton](#): > > 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. I don’t know, but check this out from the Army National Guard recruiting website: > [@](#): > > If you are 17 and a high school junior, the Guard offers a program that allows you to join prior to your senior year. This program enables you to serve and earn pay all through your senior year. When you enlist in the Army National Guard, you’ll typically serve one weekend a month and two weeks a year (usually in the summer). That’s the closest to an age requirement I could find on the site. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [March 3, 2004, 10:05pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/9 "2004-03-03T22:05:13Z")
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. -XT ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [March 3, 2004, 10:06pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/10 "2004-03-03T22:06:24Z")
> [@Hamlet](#): > > Sure. Check out 13 U.S.C. 3515(B)(2)(a)(16)(D)(4), which states: > > \ > > There you have it. You are my new hero. 😃 ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 3, 2004, 10:13pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/11 "2004-03-03T22:13:18Z")
> [@xtisme](#): > > 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. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [March 3, 2004, 10:19pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/12 "2004-03-03T22:19:05Z")
> [@BrainGlutton](#): > > 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. -XT ---
**Author:** ![yola](https://avatars.discourse-cdn.com/v4/letter/y/48db29/32.png) [@yola](https://boards.straightdope.com/u/yola)\ **Post date:** [March 4, 2004, 11:48am UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/13 "2004-03-04T11:48:54Z")
[http://nord.twu.net/acl/](http://nord.twu.net/acl/) ---
**Author:** ![The\_Broken\_Column](https://avatars.discourse-cdn.com/v4/letter/t/b9bd4f/32.png) [@The\_Broken\_Column](https://boards.straightdope.com/u/The_Broken_Column)\ **Post date:** [March 4, 2004, 7:37pm UTC](https://boards.straightdope.com/t/what-is-the-purpose-of-the-federal-unorganized-militia-statute/232352/14 "2004-03-04T19:37:57Z")
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).