Lawful Militia
September 3, 2023 | 2nd Amendment, Constitution, Militia
This is an outline of a presentation I recently gave at a meeting of the Monroe County Patriots. I added color and context as I went along. It should give you enough information so that you can build your knowledge of the issue.
Some of the quotes for the original Militia statutes herein come from the writing of Dr. Edwin Vieira, Jr., A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School), contained in “The Sword and Sovereignty”. He has written other books, and numerous article on the subject, for which I attempted to give its proper context. He has been a trusted advisor, and teacher from whom I have been able to learn and study law over and above what is taught to the average lawyer.
I encourage others to seek out his work and learn of this most critical aspect of our law, in which the Constitution, and “the Laws of the Union” define, not only a right, but the means, by which the Founders codified our Sovereignty over the State. Today, it is indeed a Struggle vital to the survival of this nation.
- Nicholas Testaccio
The Duty, the Right, and the Struggle
On April 19, 1775, 70 Militia men under the command of Captain John Parker mustered on the Green in Lexington to face 700 British Regulars.
Why did those men muster on the Green?
In 1215 king John signed the Magna Carta under pressure from the people of England.
At Article 61 we see the beginning of the Right to Redress, and the authority to enforce a right.
“If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days *** the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions…”
The whole community being the Militia that the Barons maintained in order to keep the peace, and repel invasion.
When the Pilgrims came to the New World, they were of course armed. Bearing arms in a new and uncharted territory was of course necessary to protect yourself, and provide for the needs of family and community.
However, once the colonies were formed and made viable, they were required to maintain a militia in order to keep the kings peace and protect his lands. Each village, township, and colony maintained a militia, primarily citizens, and when needed, to act as soldiers.
Each colony had its requirements that read something to the effect that every able-bodied man capable of bearing arms must be enrolled in the militia. He must possess a good musket, or rifle that he himself supplied, and it must be kept in good working order.
•[1619] “All persons whatsoever upon the Sabaoth daye shall frequent divine service * * * , and all suche as beare arms shall bring their pieces swordes, poulder and shotte.”
•[1624 and 1632] “That no man go or send abroad without a sufficient partie will armed” and “[t]hat men go not to worke in the ground without their arms (and a centinell upon them).”
•[1659 and 1662] “[T]hat a provident supplie be made of gunn powder and shott to our owne people, and this strictly to bee lookt to by the officers of the militia, (vizt.) That every man able to beare armes have in his house a fixt gunn two pounds of powder and eight pound of shott at least which are to be provided by every man for his family[.]
•[1672] “[A]s against all tymes of danger it ought to be the care of all men to provide that their armes and habiliments for war, be alwayes kept fixed and fitt for service[.]
•[1703] Recognizing that “the most effectual means for the defence of th[e] Colony depends upon the well ordering and disciplining the Militia”, the Governor ordered the “Commanders in cheif of each County * * * to appoint a Gen Muster of all the Militia under their respective commands, and take especial care & give strict directions that all Persons serving in the Militia be well provided with arms & ammunition according to Law. And * * * to give directions to the Captains of each Troop & Company * * * duly to exercise their said Troops & Companys once every three weeks, and to take care that all Persons without Priveledge or exemption be listed & Personally Performe their duty at the said Musters.”
•[1727, 1732, 1734, 1738, 1740, 1744, 1748, and 1753] “[U]pon any invasion of an enemy by sea or land, or upon any insurrection, the governor * * * have full power and authority to levy, raise, arm, and muster, such a number of forces, out of the militia * * * as shall be thought needful for repelling the invasion, or suppressing the insurrection, or other danger[.]
- Title 51 Pa.C.S.A. Military Affairs § 301 (a) Pennsylvania Militia
- § 507. Draft from militia for emergency.
The Governor shall have the power to order out for actual service with the Pennsylvania Guard by draft as many persons from the militia as necessity demands during a war or other emergency. The Governor is hereby authorized to form, adopt and prescribe such rules and regulations, and appoint such officers and civilian boards and fix their compensation, for the purpose of drafting the militia, when such process may be required, as deemed best and most expedient. Any such rules or regulations shall not conflict with any Federal Selective Service Act or National Draft Act in effect at the time.
The 70 Militia men who mustered, in Lexington, under the command of Captain Parker were not volunteers. They mustered because the law required that able-bodied free men be enrolled in the Militia. They were organized, armed, and disciplined, bearing arms that they themselves supplied.
On that day, those 70 men stood in defiance of General Gage’s attempt to disarm them and confiscate the weapons in the armory. A shot was fired, a skirmish ensued, and 8 militiamen died. From that point on, the word went out, and militia from the neighboring communities engaged and harassed the Regulars retreating back to Boston.
A year later a delegate from Virginia, Thomas Jefferson, was tasked with writing the document that has become the seminal dissertation of the relationship between government, and the people it serves. Fifty-Six men signed their name to their own death warrant.
The struggle lasted until 1783, when the colonists won their Independence. In 1787, the original Constitution was formed. At Article I, § 8, Cls. 15 & 16, the delegates to the Convention placed the power of the Sword clearly in the hands of the People, assigning to Militia the authority “to execute the Laws of the Union, suppress Insurrections, and repel Invasions”. Almost 4 years later, with obvious purpose to insure that the states would maintain their Militia, the 2nd Amendment was ratified along with 9 others, because men such as Patrick Henry, George Mason, Richard Henry Lee, and other’s understood that no matter what delegated authorities or prohibitions were laid out, there would be men who would plot to usurp the rights of the people.
•GEORGE NICHOLAS—“The power of arming the [Militia] is concurrent between the general and state governments; for the power of arming them rested in the state governments before; and although the power be given to the general government, yet it is not given exclusively; for, in every instance where the Constitution intends that the general government shall exercise any power exclusively of the state governments, words of exclusion are particularly inserted. Consequently, in every case where such words of exclusion are not inserted, the power is concurrent to the state governments and Congress, unless where it is impossible that the power should be exercised by both. It is, therefore, not an absurdity to say, that Virginia may arm the militia, should Congress neglect to arm them. But it would be absurd to say that we should arm them after Congress had armed them, when it would be unnecessary[.]
•JOHN MARSHALL—“If Congress neglect our militia we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into the hands of her militia-men?
In 1792, congress using its delegated authority, created the Militia Act, “That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside”.
The 13 original colonies had statutes from which congress drafted the original Militia requirements; “Thus, in the first Militia statute under the Constitution, Congress provided that “every citizen” enrolled in the Militia “shall * * * provide himself with a good musket or firelock * * * or with a good rifle”, which faithfully followed the pattern set in the pre-constitutional Militia laws, even to the specification of particular types of equipment.”
•All men are to possess, not just “armes and habiliments”, but “armes and habiliments for war”—that is, of contemporary military grade—which are always to be “kept fixed and fitt for service”.
However –
As early as 1833, in his “Commentaries on the Constitution”, Justice Joseph Story lamented, “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 usurpations and arbitrary power of rulers…And yet, though this truth would seem so clear…among the American people, there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, 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.”
Although the desire to perform any duty had waned, and the states failed to uphold their obligation to the Union, on July 2nd, 1863, at Gettysburg, on a hill known as Little Round Top, Colonel Chamberlin led the 20th Maine Regiment. Those men were formerly militia, now part of the army. They engaged the Confederates in a critical battle that helped determine the outcome.
Thirty-Five years later, noting the conditions in Europe, and the failure of the states to maintain the constitutionally required militia, congress began, what has now become the excuse of almost every able-bodied man in this nation, to shirk his duty to the Republic, his family, and his community.
In 1902, congress, using its delegated authority at Article I, § 10, Cl. 3, created the Dick Act, or Efficiency of Militia Act, in which they granted to the states the authority to “keep Troops *** of War in time of Peace,” now known as the Army National Guard.
Each state recognizes that there is supposed to be militia composed of able-bodied men, in current times, any citizen residing within the state. In Pennsylvania, the ages are between 17-55. The statues read as follows:
PA. C.S. Section 301
Formation:
(a) Pennsylvania militia.–The militia of this Commonwealth shall consist of:
(1) 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, within this Commonwealth, who are at least 17 years six months of age and, except as hereinafter provided, not more than 55 years of age; and
(2) such other persons as may, upon their own application, be enlisted or commissioned therein.
•Besides being “properly armed”, the citizens are to be “taught the knowledge of military duty”, “trained to arms”, subjected to “a due regulation”, and “reduc[ed] * * * under a proper discipline”.
•They are “to be ready on all occasions for the defence and preservation” of their community.
(August 21, 2022 – Certified letter under PA ST 65 Chapter 3A Right-To-Know Law Chapter 3, et. seq. asking governor Wolf for regulations.)
United States v Miller 307 U.S. 174 (1939) – Justice McReynolds points to Article I, § 8, Cls. 15 & 16, and wrote “With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”
Justice McReynolds goes on to note;
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia — civilians primarily, soldiers on occasion.
“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
Adam Smith’s Wealth of Nations, Book V. Ch. 1, contains an extended account of the Militia. It is there said: ‘Men of republican principles have been jealous of a standing army as dangerous to liberty.’ ‘In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force.
DC v Heller 554 U.S. 570 (2008) – Justice Scalia wrote “Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms… . The alternative to a standing army is ‘a well-regulated militia,’ but this cannot exist unless the people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts.”
*** HOWEVER ***
“[T]his cannot stand in the face of its own decision in Miranda, (Miranda v Arizona, 384 U.S. 436) in which this Court ruled, “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
There are 27 words in the 2nd amendment. Today, we focus on the last 14 words rather than the first 13, which give us the purpose and the reason of the amendment.
It is, as stated; “A well regulated Militia being necessary to the security of a free State.”
“In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning, for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added. *** Every word appears to have been weighed with the utmost deliberation and its force and effect to have been fully understood.” – Williams v United States 289 US 553 (1933)
Why do we ignore the 2nd amendment as it is written, and for that which it was designed? Justice Story gave us insight in his commentaries written 190 years ago. Laziness, ambivalence, pride, greed, and ignorance are part of the equation that will lead us from sovereign to subject.
If the 2nd amendment were removed today, would it change the wording in the original Constitution that “must have its due force, and appropriate meaning”?
Both federal and state statutes require Militia composed of able bodied men capable of bearing arms that they themselves supply. It is not “theory” as has been foisted upon us by both sides of the debate; for and against the right to keep and bear arms.
In law there is no theory. Either the Constitution means exactly what it says, or it means nothing at all. We have to decide which it is. The Constitution commands, and “the Laws of the Union” require that “We the People”, the author’s and source of the law, maintain an armed populace in order that we remain a free people.
Reference:
10 U.S. Code § 246 – Militia: composition and classes
Dick Act, or Efficiency of Militia Act
United States v Miller 307 U.S. 174 (1939)
Title 51 Pa. C.S.A. Military Affairs § 301
Dr. Edwin Vieira, Jr. –
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