The Militia: What Is It? (Part 1)

“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.”

2nd Amendment, US Constitution

We spend an inordinate amount of our precious time debating this brief statement, often without any understanding of what it actually means, whether in the context of history or of modern law. Fortunately, of all the ills that flesh is heir to, ignorance is among the easiest rectified. Unfortunately, most people afflicted by it are unaware of their misfortune, while even the best informed always have something left to learn. As such, I can only recommend that everyone, whether informed or not, read on — and, if you find something I missed, note it in the comments (include a reputable source, please).

10 U.S. Code § 246 – 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.

Some common misconceptions persist in the face of this fairly straightforward codification of the law: first, that the only militia today is the National Guard; and second, that any group of citizens have the inalienable right to gather together, label themselves a militia, conduct combat training, and go out on independent patrols.

There exists a significant body of law which governs the militia, its regulation, the rights and duties of the citizenry, and so on. A small amount of this is federal, and included in the U.S. Code; much is written in state or local law, and a fair amount carries over from the Common Law, whether in terms of legal precedent or the unwritten laws of the United Kingdom in force before the Revolution. It is with respect to this last that the historical militia tradition becomes important to us even today.

Militia, the Riot Act, and Posse Comitatus

1714 was a time of widespread civil unrest in England, and the Riot Act was passed as a method by which it could be quelled by the civil authorities. Any gathering of 12 or more, if “unlawfully, riotously, and tumultuously assembled together”, could, upon reading of the Act by certain civil officers, be compelled to disperse under pain of death, and those acting to suppress the riot would themselves be indemnified of legal consequences. The forces that could be mobilized under the Act included the military, civil officers, and the militia.

Within limits, these provisions passed into the United States under the Common Law; further, the specific mechanisms were codified by some states, the Militia Act of 1792, and in 18 U.S. Code § 2101. Under all of these without exception, the militia must be called out by the president, a governor, or in some instances by a public reading of the Act by a mayor, sheriff, or justice of the peace. Note that this does not invite the general public to march out and confront rioters; there must be authorization — but given that authorization, except where banned by state law or local ordinance, such action should be not merely legal but the positive duty of the citizenry.

Long before then, however, the concept of a militia is on record as far back as the Hundreds of Saxon England, in the wapentake of the Danelaw before then, in the cantrefi of Wales, and so on into antiquity. Each was a subdivision of land, the people of which could be raised in arms at the command of their feudal lord or the sheriff of the local shire. As early as the ninth century, this authority was referred to as posse comitatus, and could be employed for any emergency; citizens could defy the summons only at risk of penalty of law.

This authority too has passed into the American Common Law, and is enforceable except in those few states where it is specifically banned: a law enforcement officer may summon the posse comitatus and deputize citizens to assist in an emergency. It is in current and regular use; notable examples include the Hinsdale County posse of 1994, and the liability of Baltimore for failing to call out the posse to stem the riots of 1968. Further, individuals have regularly avoided fines by pointing to their inability to serve as non-members of the militia, indicating a relative equivalence between the two bodies if not an exact one. Notably, the provisions of the Posse Comitatus Act expressly prevent members of the standing army from being used in this fashion, though not the National Guard at such time as it’s not been federalized.

Similar provisions in common law have been used to govern, and in most cases as the structure to provide regulation for, such bodies as local police departments, volunteer fire companies, search and rescue groups, water rescue squads, and auxiliary forces until the present day. Additionally, as of this writing, twenty-nine states have organized standing and reserve militia forces that act to supplement Guard and law enforcement units in various capacities ranging from the ceremonial to the everyday. Rather than an archaic carryover in obscure law books, the militia concept is an active principle in our daily lives — one that often passes unnoticed and unremarked.

To be continued in Part 2.

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