*The Militia: An Introduction* Charles Curley* *Delivered 12 March 1994 before the Libertarian Party of Wyoming, in Casper, Wyoming.* The Militia Defined Blackstone tells us that "King Alfred first settled a national militia on this kingdom."1 Alfred's intent was to produce a body of armed men capable of repelling the invasions of the island which taken place since Rome withdrew. By the Assize of Arms of 1181, Henry II required all free men to possess arms, according to their class.2 But the militia had police duties as well as military. In 1285, Edward required "that every man shall have in his house arms for keeping the peace according to the ancient assize," and holding himself ready for service when summoned. Edward also provided for biannual inspection of those arms.3 The republican theory upon which the Framers depended held that standing armies were "dangerous to liberty." Virginia ____________________ * Charles Curley is a computer repair technician and instructor at Northern Wyoming Community College in Gillette. He has worked as a paralegal, and written an unpublished compendium of state and federal firearms laws. His BA is in philosophy, from the University of Connecticut. 1 2 *Blackstone's Commentaries* Ch 13 409, cited favorably in *U.S. v. Miller*, 307 US 174, 179, 83 L Ed 1206, 1209, 59 S Ct 816 (1939) 2 Assize of Arms (1181), in 2 *English Historical Documents* 416, D. Douglas & G. Greenaway, eds, 1953 3 Statute of Winchester, 1285, cited in Bernard Bordenet, _The Right to Possess Arms: The Intent of the Framers of the Second Amendment_, 21 University of West Los Angeles Law Review 1, n101 Charles Curley Page 1 of 7 The Militia held the principle so dear that they enshrined it in their Constitution,4 as did Massachusetts.5 The Framers did not intend the militia to supplement the army; they intended it to make the standing army superfluous. In discussing the Second Amendment, Justice Story put it this way: "The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people."6 It clear that since its founding the militia has encompassed the male population capable of fighting. All Englishmen were included, except certain of the lower classes, Jews, and, after the Restoration, Catholics. In the United States, "... the Militia comprised all males physically capable of acting in concert for the common ____________________ 4 "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." Virginia Const. Article I, 13 5 The people have a right to keep and bear arms for the common defence. And as in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. Mass. Const. Art. XVII (2 March 1780) 6 United States Supreme Court Justice Joseph Story, 3 *Commentaries* 1897 (1833) Charles Curley Page 2 of 7 The Militia defense. 'A body of citizens enrolled for military discipline.'"7 The militia as defined were the people *expected* to do militia duty. But, as recently as World War II, when most men of militia age were serving in the regular forces, militias accepted volunteers of all ages and both sexes.8 The National Guard is at most a subset of the militia, part of that portion known as the organized militia.9 In fact, when under federal control, the National Guard are part of the enlisted Reserve Corps of the standing army, and "lose their status as members of the state militia during their period of active duty."10 The militia were affirmatively required to furnish their own arms, ammunition and other supplies.11 This also distinguishes them from the National Guard. The modern definition of the militia hasn't changed. Wyoming defines it as "all able-bodied male citizens between the ages of eighteen and forty-five years; except such as are exempt ____________________ 7 *Miller, supra*, at 179. 8 Robert J. Cottrol and Raymond T. Diamond, _The Second Amendment: Toward an Afro-Americanist Reconsideration_, 80 Georgetown Law Journal 309, n 22. 9 (a) The militia of the United States consists of all ablebodied 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: (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. Section 311, Title 10, United States Code 10 Stevens, J, *Perpich v. Department of Defense*, 496 US 334, 347, 110 L Ed 2d 312, 326, 110 S Ct 2418 (1990) 11 Don Kates, _Handgun Prohibition and the Original Meaning of the Second Amendment_, 82 Mich.L.Rev 204, 214 (1983) Charles Curley Page 3 of 7 The Militia by the law of the United States or of the state."12 Alaska's definition, the most recent in the country, was passed in 1955. It includes women.13 The Militia and the Second Amendment Much of the concern over the militia stems from the Second Amendment. This is particularly due to the gun control issue, and especially proposals to ban so-called "assault weapons". But this is a misplaced concern. The Second Amendment protects the right of all of the people to keep and bear arms. This is obvious from inspection of the language. The Framers were educated, literate, eloquent men. Had they intended to limit the right to keep and bear arms to the militia, they would have said, "the right of the *militia* to keep and bear arms shall not be infringed." The phrase "the people" is a term of art used in the writing of the Constitution. It shows up in Article I, and in Amendment Articles I, II, IV, IX and X. A consistent usage of the term is required.14 If "the people" in the Second Amendment means "the national guard" or "the states", then it is the right of the states or of the National Guard to be protected in their persons and their papers which is secured in the IVth Amendment! The courts have certainly acted consistent with this interpretation. In *U.S. v Miller*, the last of the four Supreme Court cases directly on the Second Amendment, the court never once questioned Miller's status in the militia! Nor did it remand to the lower court to decide that issue.15 ____________________ 12 Wyoming Const. Art. 17, 1 13 "Alaska Militia Established (a) The militia of the State consists of all able-bodied citizens of the United States and all other able-bodied persons who have declared their intention to become citizens of the United States, who reside in the state, who are at least 17 years of age, and who are eligible for military service under the laws of the United States or of this state." Alaska Stat. 26.05.010 14 Chief Justice William Rehnquist, *U.S. v. Verdugo- Urquidez*, 494 US 259, 264-266, 108 L Ed 2d 222, 232-233, 110 S Ct 1056, 1060-1061 (1990) 15 *U.S. v. Miller*, 307 US 174, 83 L Ed 1206, 59 S Ct 816 (1939) Charles Curley Page 4 of 7 The Militia In Dred Scott, the landmark decision on the status of black slaves, Chief Justice Taney listed the rights blacks would have if they were citizens. "[If blacks were] entitled to the privileges and immunities of citizens... It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they please, singly or in companies...; and it would give the full liberty of speech...; to hold meetings upon public affairs, and to keep and carry arms wherever they went."16 It was "the people at large" whom Alexander Hamilton expected to see "properly armed and equipped."17 Justice Cooley was quite clear: "The right [to keep and bear arms] is General -- it may be supposed by the phraseology of this provision that the right to keep and bear arms was only guaranteed to the military, but this would be an interpretation not warranted by the intent ... The meaning of the provision undoubtedly is that the people from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of the law for the purpose."18 Why the Militia Clause? Why, then, the militia clause in the Second Amendment? It is interesting to note that the dispute over the Second Amendment has centered on two phrases, "the right of the people" and "a well regulated militia." It is incumbent on libertarians to remind the world that there is another phrase, perhaps more important than those two. That phrase has serious ____________________ 16 Chief Justice Roger Brooke Taney, *Dred Scott v. Sanford,* 60 US (19 How.) 393, 417 (1857) 17 29 *Federalist Papers* 18 Michigan Supreme Court Justice Thomas McIntyre Cooley, *General Principles of Constitutional Law* (1898) Charles Curley Page 5 of 7 The Militia implications for all of the various interpretations of the Second Amendment. That phrase is "the security of a free State."19 The Framers intended to safeguard the right of the people to keep and bear arms, possibly even as an end in itself. But they did not see the militia as an end in itself. They saw it merely as a means to another end: the "security of a free State." The militia clause is there to remind us that the arms protected by the Second Amendment are "the arms of the militiaman or soldier"20 It is there to remind us that "when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce [the people] under absolute Despotism, it is their right, it is their duty, to throw off such Government and to provide new Guards for their future security."21 It is there to remind us of a principle so important that it comes first in the Wyoming Constitution, that: "All power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, happiness; for the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper."22 It is there to remind us, as the Georgia Supreme Court put it in 1846, that: "The right of the whole people, old and young, men, women and boys and not militia only, to keep and bear arms of every description, and not merely as are used by ____________________ 19 U.S. Const. Amendment Article II. 20 "The word 'arms' in the connection we find it in the Constitution of the United States, refers to the arms of a militiaman or soldier, and the word is used in its military sense. The arms of the infantry soldier are the musket and bayonet; of cavalry and dragoons, the sabre, holster pistols and carbine; of the artillery, the field piece, siege gun, and mortar, with side arms." *English v State*, ___ Texas 473, 476 (1871-2) 21 United States Declaration of Independence 22 Wyo. Const. art. 1, 1 Charles Curley Page 6 of 7 The Militia the militia, shall not be infringed, curtailed, or broken in upon in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying of a well-regulated militia, so vitally necessary to the security of a free state."23 Charles Curley Box 2071 Gillette, WY 82717-2071 1:316/21.0 ____________________ 23 *Nunn v. State*, 1 Ga. (1 Kel.) 243, 251 (1846) Charles Curley Page 7 of 7 The Militia