How the Citizens Militia is Distinct from the State Sponsored Militia
How the "Citizens Militia" is distinct from the state sponsored militia
The Militia of the State is but a small portion of "the Militia" as it was understood by the founding fathers. Unlike the Army and Navy, which were created by the Constitution, the Militia pre-existed the Constitution. The Constitution simply gave Congress power to call up that portion of the Militia that would be needed in case of national emergency.
The founders understood the Militia to be all able bodied male citizens capable of bearing arms, in a previous post The Power of a Tithing, I pointed out that those who were to be trained to aid in the common defense began at the age of 12 and up. According to US Code, that portion that may be called up to aid the United States consist of all males (with few exceptions) ages 17-45, and most state codes share a uniformity with that code. There are times however, when the Federal and State Government are either unable or unwilling to act in the common defense of their citizens. Power thus, reverts back to the people in what is termed "the Citizens Militia".
From the Heller decision we read:
It was understood across the political
spectrum that the right helped to secure the ideal of a citizen militia, which
might be necessary to oppose an oppressive military force if the constitutional
order broke down. (District of Columbia vs Heller)
And further:
If, as they believe, the Second Amendment
right is no more than the right to keep and use weapons as a member of an
organized militia, see Brief for Petitioners 8—if, that is, the organized militia is the sole
institutional beneficiary of the Second Amendment’s guarantee—it does not
assure the existence of a “citizens’ militia” as a safeguard against tyranny.
And further:
Thus, if petitioners are correct, the Second
Amendment protects citizens’ right to use a gun in an organization from which
Congress has plenary authority to exclude them. It guarantees a select militia
of the sort the Stuart kings found useful, but not the people’s militia that
was the concern of the founding generation.
Indeed these last statements are confirmed by
statements made by the Founding Fathers.
In the debates in Congress over the wording of the Second Amendment
Elbridge Gerry made the following comment:
Whenever Governments mean to invade the
rights and liberties of the people, they always attempt to destroy the militia,
in order to raise an army upon their ruins. (August 1789)
In other parts of District of Columbia vs
Heller it reads:
...when the able-bodied men of a nation are
trained in arms and organized, they are better able to resist tyranny.
Justice Scalia even during the oral arguments
for District of Columbia vs Heller made the following observation:
don't see how there's any, any, any
contradiction between reading the second clause as a -- as a personal guarantee
and reading the first one as assuring the existence of a militia, not
necessarily a State-managed militia because the militia that resisted the
British was not State- managed. But why isn't it perfectly plausible, indeed
reasonable, to assume that since the framers knew that the way militias were
destroyed by tyrants in the past was not by passing a law against militias, but
by taking away the people's weapons -- that was the way militias were
destroyed.
In an even more recent case before the Supreme
Court dealing with State gun laws, Justice Scalia made the following argument:
Mr. Feldman, let me
take your argument at -- at its face value. Let's assume that the only reason
it is there and the only purpose it serves is the militia purpose. Isn't that
militia purpose just as much defeated by allowing the States to take away the
militia's arms as it would be by allowing the Federal Government to take away
the militia's arms? (Justice Scalia, US Supreme Court, McDonald vs City of
Chicago Oral Arguments)
From these statements it cannot be denied that
a citizen's militia does in fact exist within the framework of our Constitution
beyond the Militias of the several states.
Several times where the "Citizens Militia" was utilized and effective:
1) Lexington and Concord:
Contrary to what many people seem to be taught in school, the battle of Lexington and Concord was not a battle between a colony and Great Britain, a state and Great Britain or even the United States vs Great Britain. The Colonial Charter of Massachusetts had been revoked, a puppet governor had been put in place to govern Massachusetts as "Royal Governor", and the United States had not declared independence as of yet, and so the Militias of Lexington and Concord had no Colony or State to give it's blessing. It was a Citizens Militia vs an empire.
2) The Eskimo Scouts:
During World War II, the Japanese invaded the Aleutian Islands. The "Alaska National Guard" moved to Seattle during the war and so the Alaska Territorial Guard aka Eskimo Scouts was formed. Again, not a state sponsored Militia because Alaska was not a state, nor were the Eskimo Scouts recognized by the Federal Government at the time. But they fought, and repelled the invaders as is the purpose of the Militia. Their members consisted of men ranging from ages 12-80.
3) Battle of Athens Tennessee:
When World War II vets returned from the War to Athens Tennessee, they saw the very freedoms they were fighting for were nonexistant at home. Local officials had rigged elections and were harrassing the vets and others. Suspicious activities during the local election in 1946 led the return vets to take up arms against the local sheriff and other officials, forcing them to surrender and count the ballots in public as the law required. Voter tampering had in fact been proven.
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