Clarity on the Militia for 2nd Amendment DefendersThe militia in the United States, as repeatedly stated by the founders and every Supreme Court case on the subject, is the whole body of citizens capable of providing for the common defense.
Does this mean they act outside of any chain of command? Of course not. The militia is called up by the Governor in times of emergency, invasion, rebellion, etc. Once called up, those who volunteer are part of that chain of command. Currently the organized portion of the militia, the State's National Guard would take it's orders from the Governor of that State and the volunteer militia units would in turn take their orders from that chain of command. Before the National Guard there was typically an organized portion of the militia that did regular training in most States (although some States originally required all citizens to train.)
The militia isn't some lawless mob that can overthrow the federal government on a whim. The militia itself is commanded by that State's governor, or if they are volunteering for federal militia service are commanded by the President of the United States.
The National Guard issue complicates the situation because they are the organized portion of the State militias, but they also take a dual oath, so they are also available for federal military service as another reserve component if needed, but on the federal level they are not considered militia units, hence why they can be shipped overseas etc. That is certainly a muddled arrangement given the obvious conflict it causes with a State's ability to keep the federal gov't in check. Yet another post Civil War adaptation.
The Civil War was an excellent example of how militia units are under the command of the State governments and with good reason... they are more effective in a chain of command. Although they eventually lost they did have a definite opportunity to win at a few points in time, and in their minds they were defending their States against a tyrannical federal government.
Some nutjobs who think they can go it alone against the feds if they rally enough people together are more likely to end up in the history books along with Harper's Ferry and the Whiskey Rebellion.
It's just not accurate to say the militia must exist outside of any goverment control. A militia by definition is sanctioned by a government power. Their primary obligation is to the State and their secondary obligation is to the United States. So if the feds ever go off their rocker, the States have a military power to stop them. But individuals don't make that call directly. The militia is specifically charged with putting down rebellions when federal forces are not readily available. They do not start rebellions. Only the State can authorize that.
Even Webster's defines it this way, the second definition being the most applicable to those who are not currently called up:
MILITIA:
1 a : a part of the organized armed forces of a country liable to call only in emergency b : a body of citizens organized for military service
2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service
Now wait just a darn minute, theyll cry! The Declaration of Independence states that the people have the power to overthrow corrupt governments! How can the militia overthrow the government if the federal government and the state governments are all in it together? Short answer: They cant.
The inalienable right to overthrow corrupt rulers does not come from the Constitution, nor is it the law of the land by any means. Our government is designed to have all the checks, balances, and representation of the public to avoid tyranny. But if there ever comes a day where it becomes a tyranny, would we expect a tyranny to have a provision for legal rebellion in its laws? Of course we wouldnt. The right to revolution exists beyond any piece of paper or law and is irrelevant to the militia itself until a revolutionary interim government sanctions a militia for overthrowing said tyrannical government. Perhaps a Third Continental Congress will one day be necessary to stop a totalitarian power-grab in the unlikely and distant future.
References:
Article I, Section 8
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress
Article II, Section 2
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
Amendment II
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.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
10 United States Code 311
311. Militia: composition and classes
Release date: 2004-03-18
(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.
Declaration of Independence
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
http://glock21.blogspot.com/2005/03/clarity-on-militia-for-2nd-amendment.html.
