Blue Corn Comics -- A Well Regulated Militia...

A Well Regulated Militia...
(10/24/01)

Another response to A Well Regulated Militia... and Terrorism: "Good" vs. "Evil":

Correspondent Dan sent me the following essay:

Saved by the Militia
Arming an army against terrorism.
By Randy E. Barnett
September 18, 2001 11:30 a.m.

"A well-regulated militia being essential to the security of a free state. ..." The next time someone tells you that the militia referred to in the Second Amendment has been "superceded" by the National Guard, ask them who it was that prevented United Airlines Flight 93 from reaching its target. The National Guard? The regular Army? The D.C. Police Department? None of these had a presence on Flight 93 because, in a free society, professional law-enforcement and military personnel cannot be everywhere. Terrorists and criminals are well aware of this -- indeed, they count on it. Who is everywhere? The people the Founders referred to as the "general militia." Cell-phone calls from the plane have now revealed that it was members of the general militia, not organized law enforcement, who successfully prevented Flight 93 from reaching its intended target at the cost of their own lives.

The characterization of these heroes as members of the militia is not just the opinion of one law professor. It is clearly stated in Federal statutes. Perhaps you will not believe me unless I quote Section 311 of US Code Title 10, entitled, "Militia: composition and classes" in its entirety (with *emphases* added):

"(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*."

This is not to score political points at a moment of great tragedy, though had the murderers on these four airplanes been armed with guns rather than knives, reminders of this fact would never end. Rather, that it was militia members who saved whatever was the terrorists' target -- whether the White House or the Capitol -- at the cost of their lives points in the direction of practical steps -- in some cases the only practical steps -- to reduce the damage cause by any future attacks.

An excellent beginning was provided by Dave Kopel and David Petteys in their NRO column "Making the Air Safe for Terror." <http://www.nationalreview.com/kopel/kopel091401.shtml> Whether or not their specific recommendations are correct, they are too important to be ignored and they are not the only persons to reach similar conclusions about the need for effective self-defense. <http://opinionjournal.com/extra/?id=95001147> Refusing to discuss what measures really worked, what really failed, and what is likely to really work in future attacks -- on airplanes and in other public spaces -- for reasons of political correctness would be unconscionable. And we need to place this discussion in its larger constitutional context.

Asking all of us if we packed our own bags did not stop this attack. X-rays of all carry-on baggage did not stop this attack (though it may well have confined the attackers to using knives). And preventing us from using e-tickets or checking our bags at the street (for how long?) would neither have stopped this nor any future attack. All these new "security" proposals will merely inconvenience millions of citizens driving them away from air travel and seriously harming our economy and our freedom. As others have noted, it would be a victory for these murderers rather than an effective way to stop them in the future. A way around them will always be open to determined mass murderers. More importantly, none bear any relation to the attack that actually occurred on September 11th.

Ask yourself every time you hear a proposal for increased "security": Would have in any way have averted the disaster that actually happened? Will it avert a future suicide attack on the public by other new and different means? Any realistic response to what happened and is likely to happen in the future must acknowledge that, when the next moment of truth arrives in whatever form, calling 911 will not work. Training our youth to be helpless in the face of an attack, avoiding violence at all costs will not work. There will always be foreign and domestic wolves to prey on the sheep we raise. And the next attack is unlikely to take the same form as the ones we just experienced. We must adopt measures that promise some relief in circumstances we cannot now imagine.

Here is the cold hard fact of the matter that will be evaded and denied but which must never be forgotten in these discussions: Often -- whether on an airplane, subway, cruise ship, or in a high school -- only self defense by the "unorganized militia" will be available when domestic or foreign terrorists chose their next moment of murder. And here is the public-policy implication of this fact: It would be better if the militia were more prepared to act when it is needed.

If the general militia is now "unorganized" and neutered -- if it is not well-regulated -- whose fault is it? Article I of the Constitution gives Congress full power "to provide for organizing, arming, and disciplining the Militia." The Second Amendment was included in the Bill of Rights in large part because many feared that Congress would neglect the militia (as it has) and, Congress could not be forced by any constitutional provision to preserve the militia, the only practical means of ensuring its continued existed was to protect the right of individual militia members to keep and bear their own private arms. Nevertheless, it remains the responsibility of Congress to see to it that the general militia is "well-regulated."

A well-regulated militia does not require a draft or any compulsory training. Nor, as Alexander Hamilton recognized, need training be universal. "To attempt such a thing which would abridge the mass of labor and industry to so considerable extent, would be unwise," he wrote in Federalist 29, "and the experiment, if made, could not succeed, because it would not long be endured." But Congress has the constitutional power to create training programs in effective self-defense including training in small arms -- marksmanship, tactics, and gun safety -- for any American citizen who volunteers. Any guess how many millions would take weapons training at government expense or even for a modest fee if generally offered?

Rather than provide for training and encouraging persons to be able to defend themselves -- and to exercise their training responsibly -- powerful lobbying groups have and will continue to advocate passivity and disarmament. The vociferous anti-self-defense, anti-gun crusaders of the past decades will not give up now. Instead they will shift our focus to restrictions on American liberties that will be ineffective against future attacks. Friday on Fox, Democratic Minority Leader Dick Gephart was asked whether additional means we have previously eschewed should be employed to capture and combat foreign terrorists. His reply was appalling. Now was the time, he replied, to consider adopting a national identity card and that we would have to consider how much information such "smart" cards would contain.

Rather than make war on the American people and their liberties, however, Congress should be looking for ways to empower them to protect themselves when warranted. The Founders knew -- and put in the form of a written guarantee -- the proposition that the individual right to keep and bear arms was the principal means of preserving a militia that was "essential," in a free state, to provide personal and collective self-defense against criminals of all stripes, both domestic and foreign.

A renewed commitment to a well-regulated militia would not be a panacea for crime and terrorism, but neither will any other course of action now being recommended or adopted. We have long been told that, in a modern world, the militia is obsolete. Put aside the fact that the importance of the militia to a "the security of a free state" is hardwired into the text of the Constitution. The events of this week have shown that the militia is far from obsolete in a world where war is waged by cells as well as states. It is long past time we heeded the words of the Founders and end the systematic effort to disarm Americans. Now is also the time to consider what it would take in practical terms to well-regulate the now-unorganized militia, so no criminal will feel completely secure when confronting one or more of its members.

===

Randy E. Barnett is the Austin B. Fletcher Professor at Boston University and the author of The Structure of Liberty: Justice and the Rule of Law.

Rob's reply
>> "A well-regulated militia being essential to the security of a free state. .." The next time someone tells you that the militia referred to in the Second Amendment has been "superceded" by the National Guard, ask them who it was that prevented United Airlines Flight 93 from reaching its target. <<

Whoever prevented United Airlines Flight 93 from reaching its target—the passengers, presumably—it has no constitutional relevance.

>> Who is everywhere? The people the Founders referred to as the "general militia." <<

The Founders didn't refer to the people as the "general militia." For the third or fourth—and I hope the last—time, here's Alexander Hamilton describing what the Founders meant by a militia:

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia...."

What part of "called into service for the public defense" are you "libertarians" too stupid to understand? A militia isn't all people at all times, it's some people called for public duty at some time. These people are called into a camp and trained for a specific purpose. They don't have guns to begin with; the Union provides for arming them.

Whether that equates to the National Guard is irrelevant, since the militia the Founders conceived wasn't all people at all times. And whatever it was, the Founders meant for the Union to regulate it well.

>> Cell-phone calls from the plane have now revealed that it was members of the general militia <<

No, it was the passengers. A militia would be a specific body called for public duty by the government. Unless Bush* put in a call to the passengers and deputized them, this talk of militias is irrelevant.

The phrase "general militia," as opposed to "militia," is even more irrelevant. The 2nd Amendment specifies a "well regulated Militia," not a "general militia." Nowhere does the word "general" appear in the amendment.

>> The characterization of these heroes as members of the militia is not just the opinion of one law professor. <<

Good thing, because Barnett's interpretation of the Constitution is wrong.

>> It is clearly stated in Federal statutes. Perhaps you will not believe me unless I quote Section 311 of US Code Title 10 <<

Court rulings interpret federal statutes as well as the Constitution. Federal statutes don't interpret court rulings.

"Militia" excludes lots of gun owners
>> 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 <<

Are you over 45, Dan? I'm willing to start implementing this statute by confiscating the guns of all women, all men over 45, and all boys under 17. If you believe the words you're quoting, please send me your guns or proof you've disposed of your guns. If you don't believe the words you're quoting, you're a hypocrite, as I've noted many times.

>> This is not to score political points at a moment of great tragedy <<

The hell it isn't.

>> though had the murderers on these four airplanes been armed with guns rather than knives, reminders of this fact would never end. <<

Had the murderers or the passengers been armed with guns, the outcome probably would've been the same. Once it was clear the hijackers intended to kill everyone, there was no reason for the passengers to hesitate, regardless of whether they or the hijackers were armed.

>> All these new "security" proposals will merely inconvenience millions of citizens driving them away from air travel and seriously harming our economy and our freedom. <<

I'll agree with that. As usual, it's your conservative fellow travelers who are trying to steal our freedoms. And it's us liberals, including the ACLU, who are trying to preserve them.

>> only self defense by the "unorganized militia" <<

I think Barnett means the public, again.

>> If the general militia is now "unorganized" and neutered -- if it is not well-regulated -- whose fault is it? <<

It's the conservatives' fault for opposing any attempt to regulate gun owners and users. And again, references to a "general" militia have little or nothing to do with the Second Amendment's text.

>> the only practical means of ensuring its continued existed was to protect the right of individual militia members to keep and bear their own private arms. <<

Yes. Unfortunately for you, the Founders clearly didn't mean all people to be militia members. They meant only those called for duty.

Even the statutes you cited exclude 3/4 of the population: all women and roughly half the men. Since this statute appears to be old, most minorities—blacks, Latinos, Asians, Indians—probably weren't citizens when it was written. Let's make that 4/5 or 5/6 of the population whom the statute excludes.

Moreover, the Founders also meant those militia members to be "well regulated." The Second Amendment's language couldn't be any plainer, which is why you obfuscators run like yellow-bellied chickens from those two words.

A sentiment the NRA doesn't share
>> Congress has the constitutional power to create training programs in effective self-defense including training in small arms -- marksmanship, tactics, and gun safety <<

Now you're talking. Share this sentence with the NRA, which opposes any attempts to require training.

Of course, neither the Constitution nor Hamilton specified training as the only regulation permissible. Hamilton specifically referred to the government's power to arm militias. Other constitutional forms of regulation include licensing, registration, safety locks, and biometric identification of gun owners.

>> The vociferous anti-self-defense, anti-gun crusaders of the past decades will not give up now. <<

Definitely not, since 1) we're the majority, and 2) the Constitution says we can regulate the so-called militia, whatever it is.

>> Instead they will shift our focus to restrictions on American liberties that will be ineffective against future attacks. <<

I'm not sure why anti-gun crusaders would need to shift America's focus to ineffective security measures. Pro-gun crusaders and other right-wing conservatives are already leading the charge to reduce our freedoms. The best anti-gun crusaders can do is join the stampede headed by conservatives like "President" Bush*.

>> His reply was appalling. Now was the time, he replied, to consider adopting a national identity card and that we would have to consider how much information such "smart" cards would contain. <<

Compared to the Bush*-Ashcroft onslaught on civil liberties, Gephardt's proposal was a drop in the bucket. Ashcroft's initial anti-terrorist package was so restrictive even his fellow Republicans decried it.

Do you clowns ever read a newspaper, Dan? Or do you reflexively scream "liberal" or "Clinton" whenever anything happens? Let me repeat: Conservative Republican John Ashcroft, not Clinton or any liberal, has tried to use the terrorist strikes to impose the greatest reduction of personal freedoms in recent memory. Address that fact if you can, buddy.

>> Rather than make war on the American people and their liberties, however, Congress should be looking for ways to empower them to protect themselves when warranted. <<

Armed plane passengers won't stop determined hijackers any more than unarmed plane passengers will. Keep searching if you want to find effective means of increasing our security without trampling our rights.

>> The Founders knew -- and put in the form of a written guarantee -- the proposition that the individual right to keep and bear arms <<

No, what they knew was: "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." When you find the words "individual right" in there anywhere, be sure to alert the courts. They'll want to hear about this momentous discovery.

If you want a hint, look for the phrase "individual right" next to the phrase "general militia." You'll find both in the same place: nowhere.

Gun-control advocates don't need to renew commitment
>> A renewed commitment to a well-regulated militia would not be a panacea for crime and terrorism <<

I don't need to renew my commitment. I'm still committed to regulating the militia well. I don't know about you or Barnett, with your imaginative interpretations of the Second Amendment. Maybe you should try to be a literalist, like me.

>> We have long been told that, in a modern world, the militia is obsolete. <<

As a specific body called to public duty...the militia may not be quite obsolete, but it's unnecessary in most cases. The military, CIA/FBI, National Guard, and police are generally enough to protect us.

If China invades the US Southwest, then we may need a citizen militia. Of course, that won't happen in our lifetime, as I've explained already.

>> Put aside the fact that the importance of the militia to a "the security of a free state" is hardwired into the text of the Constitution. <<

Yes, put that aside and focus on the key words "well regulated," as I've done repeatedly.

>> The events of this week have shown that the militia is far from obsolete in a world where war is waged by cells as well as states. <<

A militia didn't do anything. A group of unarmed individuals did. So much for the need for more armed individuals.

This whole essay is predicated on an incredibly stupid chain of reasoning. I even hesitate to use the word "reasoning," so bizarrely false is it. Let's look:

Unarmed citizens saved the day => citizens, whether armed or unarmed, are the "militia" => the "militia" saved the day => militias have the right to bear arms => citizens must bear arms to save the day again.

Hello? My dog reasons better than this, and I don't have a dog. I can say that because there's no "reasoning" involved. There's no weakest link here because this chain fails at every point.

You needn't use this inane, illogical "reasoning" to make your case. Read the initial postulate and stop right there. Unarmed citizens saved the day...period. If that isn't clear enough: Unarmed citizens saved the day => arms weren't necessary to save the day...period. END OF STORY.

>> It is long past time we heeded the words of the Founders and end the systematic effort to disarm Americans. <<

Gun control advocates are heeding the Second Amendment now, and have been since it was first written. "Regulating" armed Americans—not disarming them—is also hardwired into the Constitution.

>> Now is also the time to consider what it would take in practical terms to well-regulate the now-unorganized militia <<

Again, we've already considered it. Among the solutions we've considered and implemented are licensing and registration laws. Whether they work as intended is a separate question from whether they're constitutional or not.

Another paltry argument, easily dismissed. But keep trying, Dan. Maybe you'll make a legitimate point someday!

Rob

P.S. As I thought, your so-called militia didn't save much of anyone. In contrast, government workers saved thousands. They're the true "militia" Americans are thanking.

*Not the legitimate president.

* More opinions *

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