2nd amendment penumbras II – disarming non-militia members

Edit: Ugh, what was I thinking. I haven’t gotten a post this wrong this decade. I reread Heller, which I apparently desperately needed. Mea culpa. I’ll leave this up as penance, and a reminder that I can be a great fool.

Previous item in series here: I

If you start from zero on the gun debate, a curious fact emerges. The right to arms is recognized in federal and state law as a military right in the form of milita membership via the unorganized militia. Militas are generally limited to men and only up to age 45 or so. So why don’t gun controllers go after the right to bear arms of those who are not covered? Women’s gun rights are only protected under the penumbra of the 2nd amendment. So why have women’s right to bear arms not been put under any specific pressure by the gun control crowd? Common sense and a little thought explains why attempts to control guns like this simply aren’t done and modern case law on this point is rarer than 3rd amendment case law. The ladies need their weapons to defend against both stranger attack and to equalize matters when boyfriend turns to ex-boyfriend stalker. Those over 45 have similar issues.

Those excluded from militia statutes have, theoretically, less protection of their right to bear arms, yet in practice this weakness of protection is never exploited. How did a 2nd amendment penumbra manage to grow up as custom without ever having gone through the judicial process.

Perhaps there have been relevant cases that I missed. Please educate me in comments.

Edit: I should have made clear in the text, and I manifestly did not, that the right to bear arms is a basic human right held by just about everybody that precedes constitutions and laws and is not limited to military service. That pretty much was the point of Heller, that bearing arms is an individual right.

This makes the article something of an exercise in looking at it from the other side’s viewpoint and still finding the gun controller position incoherent. The problem of Miller’s ruling against sawed off shotguns still stands.

20 thoughts on “2nd amendment penumbras II – disarming non-militia members”

  1. you are starting out with a fallacy … that the 2nd amendment right to bear arms is directly tied to being in a militia … it is not …

  2. Going from memory, from Title 10 of the US Code [which incorporated and updated the original Militia Act passed by the first Congress];

    1) the Organized Militia of the United States is the National Guard and the various Reserves.

    2) states are allowed to have their own militias, which are neither funded by the Federal government, nor under their command. There are, I believe 26 or 27 official state militias funded by state governments.

    3) the Unorganized Militia of the United States consists [according to Title 10] of all males from the ages of 15-45, who are US citizens or have declared an intent to become citizens, who are not members of the first two categories, AND WHO ARE NOT EMPLOYED BY THE FEDERAL GOVERNMENT.

    The 1939 Miller case in the Supreme Court noted that they were required to report when summoned with weapons of military utility; or specifically ” … 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.”. I happen to own a period Brown Bess musket. When it was made, it was a “weapon of military utility” and was used by the army of the British East India Company. Nowadays, not so much. The concept evolves with military technology.

    The specific weapons that the Left are trying to ban, are in fact, “modern weapons of military utility”. I would rather expect that if the point is reached where any part of the Unorganized Militia is called up, the phrase will be defined rather widely, with the ability to supply ammunition being a key factor. The .17 Javelina caliber may be an excellent varminting caliber adaptable to sniping, but has to be handloaded. 5.56 Nato [.223Remington] and 7.62 Nato [.308 Winchester] have large and busy production lines.

    It is interesting to note that even though the Unorganized Militia is subject to Federal call up, the last time that I know of it being done directly by the Federals was the War of 1812. There were call ups in the Civil War and Spanish American War, I believe, but as far as I know the actual mobilization and organization were handled by state and local authorities.

    As far as rights and liberties are concerned, I believe that they are considered to be additive rather than mutually exclusive. Thus later statutes can increase rights.

    There is a statutory limitation of the Unorganized Militia to males. However, statutes barring gender discrimination came into force since Title 10 was passed, and both the Organized Militia and State Militias allow women members. Further, the current regime has unilaterally opened combat MOS’s to women. Thus, one would have a hard time advancing a convincing rationale in court for barring women from the Unorganized Militia based solely on gender.

    There is a similar Title 10 limit on age. However, since 1965 it has been illegal to discriminate on the basis of age; outside of strictly defined “Bona fide Occupational Qualifications”. The closest analog would be the active duty military, where they have an upper age limit [absent action by Congress in individual cases] of 62.

    Thus it would be reasonable to consider the Unorganized Militia to be “all who are US citizens or have declared an intent to become citizens between the ages of 15-62, who are not members of the first two categories, AND WHO ARE NOT EMPLOYED BY THE FEDERAL GOVERNMENT”. And that could probably be defended and upheld in court, assuming a rule of law.

    That is a pretty wide swathe of the population. And I rather doubt that the Left really wants to take that to court. Plus the largest portion of people they would be trying to disarm are aliens, legal or otherwise. And in passing that would be inclusive of the Mexican and Central American street gangs that are running rampant.

    Two problems with that. The current government has demonstrated an absolute refusal to enforce any laws against non-citizens illegally in this country as they consider them a vital part of their political base. Second, unlike law-abiding Americans, the heavily armed gangs which are responsible for much or most of the firearms crimes in this country will shoot back.

    One can extrapolate a penumbra, although I cannot quote the exact text of a decision or statute off the top of my head, out of the text of the Amendment; ‘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.’.

    In US -v- Verdugo-Urquidez (1990), the Supreme Court had to define the reach of the Bill of Rights. It was a drug case that reached into Mexico, and had nothing to do with the 2nd Amendment; but one of the filters used by the Supreme Court was that the phrase “the people” was a term of art used by the Founders to indicate a right that was inalienable to Americans and those of our “national community” and could not be removed by the government.

    Reinforcing that penumbra is the concept that if “the people” are expected to furnish a trained or at least trainable militia from the body of the population; that those being raised should be exposed to and familiar with the use of firearms, which implies training and use before reaching militia age, and that those beyond 62 who are trained would be quite appropriate instructors; thus retaining the rights to be armed.

    I am not a lawyer, nor do I play one on TV. So I may have stepped in it big time. However, there are enough lawyers here to tear me a new one if appropriate, and that should add to the discussion.

    Subotai Bahadur

  3. I will link my previous dissertation on this subject instead of re-posting it:


    I would point out that state legislation may have more generous provisions than Federal laws. E.G. Ohio makes all non-disabled adults 18 to 67 members of the unorganized militia.

    IMHOP and IAAL, the constitutional case against limiting membership in the unorganized militia to males is fairly strong.

    If we are changing federal law with respect to AR-15 type rifles, I think the argument for requiring all members of the unorganized militia to own one and train up to a standard of proficiency in using it is far stronger, than the argument in favor of banning AR-15 type rifles.

  4. One of the distinguishing features of a militia is that it’s armed only with those weapons available to ordinary private citizens. So if you disarm non-militia members, then the former militia is no longer a militia, but rather some other (and much more dangerous) sort of paramilitary group. Either that, or you have to disarm the militia at the same time, and to the same extent.

    Trying to claim that only members of a government-recognized militia have a right to keep & bear arms (and that everyone else can be disarmed) is oxymoronic, in the same way as a claim that only publishers of government-recognized newspapers have freedom of the press (and that everyone else can be censored).

  5. JeffC has it right, up front. The 2nd Amendment (and at least my own state constitution too) does not condition the right on militia membership. The 2nd merely gives a reason why the right is being protected.

  6. Since who is and who is not a member of the militia can be specified by law, this whole controversy can be ended when the Democrats control the presidency and legislature by passing a law which strictly defines the militia.

  7. I believe that the right to self-defense and the use of firearms to achieve that right is broad and near universal (loss of gun rights for violent felonies under certain circumstances for instance is acceptable). The point of the article is that under a direct reading of the text, the right protected under the 2nd amendment is more limited than the right as it is lived out in the US and the defense of that broader understanding of the right resides on a reading of 2nd amendment penumbras and recourse to the 9th and 10th amendments, that self-defense is a retained right for those not in the militia. Do I really need to go through how mainstream jurisprudence has gelded the 9th and 10th amendments?

    Try googling up 2nd amendment and musket for a sample of how ridiculously originalist the gun control side can get. Yet the 2nd amendment protects the right to own a musket crowd never go after senior citizens or women as a group even as they attempt even more ridiculous contortions with their musket line of argument. This is an opportunity they are passing up for a political reason because seniors and women form an essential part of their potential coalition and drawing attention to how the gun control side would negatively affect their rights is a political loser. We on the pro-self defense side of the argument would profit if we were to slam the wedge in deeply here.

    Subothai Bahadur – I believe that the militia codes are generally poorly written, defining the unorganized militia as they do as a means to provide limits on the terms of the state’s draft (forced military service) law. They are assuming a common consensus that the people in general have a right to arms whether they can be drafted or not. This situation could be improved and should be. There has been a general effort to remove sexism from the legal code but I don’t think that it’s happened in the militia statutes. The feminists missed that one. Do you wonder why?

    Yes, I agree that the left does not want to take it to court. It’s a real loser and everybody knows it. But it is a loser that would logically be called for by the “2nd amendment right to a musket” hyper-originalist argument. Instead of bothering to go through the arguments in Miller, I would be more satisfied for 2nd amendment supporters to simply say “sexist” and “ageist” in response to the musket line and let the other side take the harder political road to explain why they are not prejudiced.

    Drive the wedge deep.

    Deep Lurker – I’m not quite sure that I understand your distinction. Are you talking about the unorganized militia or some hypothetical private militia outside government control.

    ErisGuy – Since I believe that the current definition of the militia is unconstitutionally restrictive, I’m not quite sure how this would *resolve* the controversy.

  8. JeffC and Kirk Parker are certainly correct about this. The “Right of the People to bear arms” is not predicated on membership in a militia (of any kind), as the Supreme Court’s 2008 ruling in District of Columbia v. Heller clearly states……. “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” All this discussion about militias seems irrelevant and “beating a dead horse” at this point; it hasn’t been under-analyzed, it’s been over-analyzed.

  9. The problem with tyrants is that they constantly try to redefine the meaning of written laws. Or they say laws were written by dead people and we need laws that change with needs of the times.

    When the Founding Fathers wrote the Constituion the colonies had been dealing with tyrants for 200 years. So they tried to limit tyranny. They created a system based on local government and limited the federal government to delivering the mail. They disbanded the national army but kept the navy.

    Today we have an official federal standing army. In addition there are 11 other national armies – 11 agencies with armed “agents”. DEA has a army. ICE has an army. FBI has a army. Social Security has an army. HEW has an army. Indian Affairs has an army. Etc. etc. etc.

    If your agency has over a hundred men/women under arms with automatic weapons, armor, drones, heliocopters, bombers, etc then your agency has an army.

  10. The point of the article is that under a direct reading of the text

    The point many of us are trying to make is that we disagree with this assertion. That prefatory clause is explanatory, not limiting.

  11. TM Lutas: I’m talking about armed groups sanctioned and employed by the various levels of government, e.g. police departments. If a police department were to be armed only with those weapons that ordinary private citizens can own and carry, then it would qualify as a militia for 2nd amendment and other Constitutional purposes even if it’s not called a “militia.”

    But if a police department is armed with weapons beyond those available to private citizens, then it’s not a militia. Rather it’s an example of “troops, or ships of war” that the States aren’t suppose to have without special permission from Congress.

    Even if a State government takes a group of armed men and calls it the “state militia,” rather than the “state police,” it’s still not a militia for Constitutional purposes if it’s armed with weapons that private persons are restricted or prohibited from having. The soi-disant militia will still be the troops of a State army, and not an actual militia at all.

    Likewise the government can make a law classifying you as not being part of the militia, but it can’t prevent you from owning militia weapons by doing so – because what counts as a “militia weapon” is defined by what you can own as a non-militia member.

    Or to riff on what Grey Eagle said: If your agency has over a hundred men/women under arms with automatic weapons, armor, drones, helicopters, bombers, etc then your agency has an army – unless private citizens are also allowed to own those automatic weapons, armor, drones, helicopters, bombers, etc without legal hindrance. In that case, what your agency has is a portion of the militia called into government service to enforce the laws of the Union. (Or the laws of a state, if it’s a state rather than a federal agency.) But since ordinary private citizens currently aren’t allowed to own automatic weapons…

  12. @ JeffC, Kirk, Mike Doughty. I think you miss the point. Most people here agree with you on that, and TM Lutas may as well. He is opening up the line of argument for use against gun controllers. If they are so big on this militia-only idea, why don’t they seal the deal by going after the guns of women, or those over 45?

    The implication is that they don’t really mean what they say – they think guns are icky and no one should own them – but are hiding behind this militia idea as a mere rhetorical convenience.

  13. @AVI

    There was a great article many years ago by B. Bruce-Briggs that said that the central argument of most gun control proponents was “I don’t like guns and I don’t like people who like guns”. I don’t think anything has changed since then.

  14. Your edit still doesn’t completely fix things. Sure, it’s now clear that you’re making a “I’m trying to see this from their side: if it is conditioned on militia service, then how come you haven’t tried to restrict possession by women/the elderly?” argument (but ssshhhhhhh! don’t give them any ideas!!!.)

    I just don’t see the point of doing this. The anti-gun arguments are fairly incoherent already (when they’re not just out-and-out statist), so why bother? Does adding entropy to a system increase its randomness? And by “why bother?”, I mostly mean “Is there a single anti-gun person out there who, confronted by this argument, will go ‘Oh, you got me there, I think I’ll rethink my gun control position”, rather than just replying with more incoherence?

    And regarding reading: you need to read Miller again. It is manifestly not a “ruling against sawed off shotguns”, it was a reversal and remand of a case in further action regarding which was made moot by Miller’s subsequent death. Note this part of the decision:

    In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. [emphasis added]”

    If that’s not just begging some lower court to please develop some facts, I don’t know what is…

  15. Since 2002 more children under 18 have been shot by police than by civilians with assault rifles. The rogue cop in California supports gun control and killed three cops. LA police evened the score by shooting 3 civilians.

    FDA cops shot a 15 year old kid this week. They were defending a secret FDA lab which was next door to his school. The lab contained viruses that could wipe out the city. The kid had p0arked his car illegally in the FDA parking lot. Shooting is a bit extreme as a penalty for illegal parking.

    Social Security has armed agents who are licensed to kill. Old folks with AD are hard to intimidate.

    Too many crazy people work for the government and are given guns. Gun control should start with them.

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