Friday, February 6, 2015

Unorganised Militias--Ignorance isn't bliss: It's annoying

It's really amusing to watch people who have no knowledge of how law works quote things they really don't understand. This is easily refuted by showing it to be an ignorant comment.  In this case, I am talking about 10 USC §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 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.
The notion of an "unorganised militia" should clue you in that this might not be a body with any legal rights. In fact, it is a legal fiction used to keep the concept of the militia being an universal obligation, which it never really was anyway. This is pointed out in something which is usually incompletely quoted and taken out of context, George Mason's speech from 3 Elliot's Debates 425-26:
" I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered."
The Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia, has always been unorganized and untrained.  That is why they have a title that reflects something that is inactive.

Active Militias, that is THE organised, enrolled, embodied, active (or other term signifying active) Militia, can be supplemented if necessary by the ballot (selection by lot)–in other words drafted from the Unorganised militia draft pool.

The term “unorganized” did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.
Militia service was so unpopular that Delaware abolished its militia system altogether in 1831. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856.” – Mahon, John K, The History of the Militia and the National Guard, p. 83

The term “unorganised militia” was kept in use in subsequent decades as a statutory “reminder” that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the “unorganised militia,” the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise.

The Militia was never a truly universal service. It died a death from a lack of interest in participation as was pointed out by Joseph Story, in Commentaries on the Constitution 3:§§ 1890:
"The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and 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 burthens, 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 this clause of our national bill of rights."
The death of the Universal militia appears to be predicted by Mason in the quote above.  In fact, one can argue that the militia as an institution was pretty much dead on arrival since Adam Smith said in his Wealth Of Nations that, "This distinction being well understood, the history of all ages, it will be found, bears testimony to the irresistible superiority which a well-regulated standing army has over a militia. "(Book V, Chapter 1.22 Of the Expence of Defence).

To merely quote 10 USC §311 shows a decided ignorance of how this section of the US Code works since the sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia has always been under the purview of the states. One needs to go to the various states' call out provisions to see that this is a reserve body--it is akin to having a draft card.

Here are a couple of examples, Alabama Code - Section 31-2-48:
The Governor shall, when ordering out the unorganized militia, designate the number. He may order them out either by call for volunteers or draft. The unorganized militia may be attached to the several organizations of the National Guard or Naval Militia, or organized into separate divisions, brigades, regiments, battalions, companies or detachments as the Governor may deem best for service. He shall appoint the commissioned officers and warrant officers in the same manner as provided in this chapter for the appointment of officers and warrant officers of the National Guard and Naval Militia.
Indiana Code - Section 10-16-6-2: Classes of militia is more specific about how their unorganised or Sedentary militia is to be applied:
The militia shall be divided into two (2) classes, the sedentary militia and the national guard, as follows:
(1) The sedentary militia consists of all persons subject to bear arms under the Constitution of the State of Indiana who do not belong to the national guard.
(2) The national guard consists of those able-bodied citizens between the proper ages as established by this article who may be enrolled, organized, and mustered into the service of the state as provided in this article. The organized militia of the state constitutes and shall be known as the Indiana national guard.
As added by P.L.2-2003, SEC.7.
The law also makes it clear that:
(a) The Indiana national guard consists of those units:
(1) specified by:
(A) the Secretary of the Army; and
(B) the Secretary of the Air Force; and
(2) approved by the governor.

The Alabama law isn't as clear that one needs to actually be enrolled, but they are allocated as the governor deems them necessary.  These are a couple of examples, but one needs to look to state law for how the unorganised militia is actually handled.

The Unorganised militia is something of a conceit to say that there is the possibility of universal militia service with the unorganised militia serving as a draft pool should the organised militia not have enough manpower.

This is a simplification of the issue, but the current national guard, which is the militia, is not a universal force.  Also, you need to actually be a member of the National Guard to actually claim that you are a member of the militia.  And that Constitutionally is the only body that can call itself a militia since it is the only one which is organised under Article I, Section 8, Clause 16–which is the relevant section of the Constitution for that purpose, not the Second Amendment.

The bottom line is that if you are going to make the argument that being a part of the "unorganised militia" in some way gives you rights, then pant shitting, draft dodging Ted Nugent should be considered a Viet Nam era veteran since he was subject to the draft (and given various deferments).

See also

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