2A and the Militia Act(s)

**Aguila Blanca** · September 3, 2020, 04:28 PM

In another thread ( https://thefiringline.com/forums/sho...d.php?t=608486 ) a point was proposed that being in the unorganized militia might be a viable defense for someone (i.e. Kyle Rittenhouse, the Kenosha shooter) who stands accused of unlawfully carrying a firearm.

One of the follow-up comments mentioned the Miller case before the SCOTUS. One of Miller's defenses was apparently that he was a member of the unorganized militia. However, in Miller, the SCOTUS tossed that argument (erroneously, as it turned out) on the basis that a short-barreled shotguns had no place in military applications and that, therefore, claiming to be in the militia wasn't a useful argument.

I would be interested in what some of the attorney types here think about this. My view is that the Militia Acts of 1792 followed several years after the Bill of Rights, so an argument that the 2A is related to the Militia Acts can't be based in the 2A, it would have to be based on the language of the Militia Acts. And the Milita Acts of 1792 don't make any mention either of the 2A or the right to keep and bear arms. The Militia Acts strike me as having been for the purpose of setting up a structure so that the militias of all the states were similar in organization and equipment.

Further, the original Militia Acts of 1792 were not written to be permanent, which they would (or should) have been if they had been for the purpose of defining and clarifying the 2A. They expired in 1794. The Militia Acts of 1792 were quickly replaced by the Militia Act of 1795 -- which was then amended in 1862 and then subsequently replaced entirely by the Militia Act of 1903, which is the version still in effect today.

Consequently, I'm just not seeing a strong tie-in between the 2A and the Militia Act(s). Am I missing something?

[Edit to add]Another reason I choose not to see a connection between the Militia Act(s) and the 2A (aside from the fact that the Heller decision said the 2A is not dependent on service in the militia) is age. I'm in my mid-70s, so I am well beyond the militia age range established by any of the versions of the Militia Act. If the 2A is dependent on being a member of the unorganized militia -- then it could be argued that I am not entitled to the 2A right to keep and bear arms. I'm not prepared to concede that.

zukiphile · September 3, 2020, 05:10 PM

That membership in the Militia isn't a limit on the 2d Am. [one of the key points in Heller] doesn't require that the right is entirely unrelated. The Militia acts certainly lend a statutory definition to the population that compose the Militia, though the idea that Congress is entitled to define [away] explicit constitutional terms is itself problemmatic.

If the issue presented in the other thread is whether the 2d Am. prohibits age based restrictions on possession of arms to members of the Militia, I think there is a coherent argument in favor of a federal prohibition on such a restriction. If the explicitly stated right doesn't protect the defined Militia population, does it protect anyone? If a 17 year old member of the Militia can't have a rifle, can a 32 year old be prohibited from having one?

The age issues raised by you and Rittenhouse point up some oddities about age and how we treat it. What country would need to call forth people our age to defend it? One in an awfully bad spot, I'd think. That shouldn't mean that at 46 someone comes around to take your arms because the right isn't limited to the Militia.

At the other end of the spectrum, we have the modern phenomenon of an adolescence that can stretch into one's 30s, a legal structure that sees 18 and 21 as the big chronological milestones, and the fact that most modern 17 year olds are so isolated from so much of life that it is hard for old men to see them as much more than a child. The 17 to 45 year old bracket might not be an excellent fit for our current view of age, but Congress hasn't seen fit to amend it.

I had to register for selective service when I was 17; like every other 17 year old I could have been compelled to serve and wield a rifle for the state. On what reasoned basis should I be denied the right to wield one for my own defense?

Whether such a defense would succeed is another matter.

**44 AMP** · September 4, 2020, 12:21 PM

I was required to register with Selective Service within 30 days of my 18th birthday, but I never did.

Never got in any trouble over it, either. I think the fact that I had enlisted in the Army some 6 months prior might have had something to do with that..

As to the 2nd Amendment, Militia acts, and carrying a firearm (and using them as a legal defense for carrying a firearm) I think you are overthinking things.

The 2nd Amendment explains why it is in the govt's interest to not infringe on the right to keep and bear arms, and orders the Fed govt not to do so.

The Militia acts simply define what/who the militia is, under the law.

I'd say that, if there is such a thing as "unlawful carry" in state law, then the 2nd Amendment is not protecting you from that "infringement", as it is done by the State, not the Federal Govt.

You MIGHT have a case, if the State Constitution has a clause that mirrors the Fed 2nd Amendment. Most do, but the wording varies, which leads to differing interpretations.

Fed Militia laws simply don't apply, that I can see.

Not a lawyer, don't play one on TV, didn't stay in any hotel last night, my advice is worth what you paid for it.

**Aguila Blanca** · September 4, 2020, 01:32 PM

Quote:

Originally Posted by 44 AMP

I'd say that, if there is such a thing as "unlawful carry" in state law, then the 2nd Amendment is not protecting you from that "infringement", as it is done by the State, not the Federal Govt.

You MIGHT have a case, if the State Constitution has a clause that mirrors the Fed 2nd Amendment. Most do, but the wording varies, which leads to differing interpretations.

The McDonald case established that the Second Amendment limits the states as much as it limits the federal government.

https://supreme.justia.com/cases/federal/us/561/742/

Quote:

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

Quote:

Originally Posted by 44 AMP

You MIGHT have a case, if the State Constitution has a clause that mirrors the Fed 2nd Amendment. Most do, but the wording varies, which leads to differing interpretations.

I haven't counted recently, but my recollection is that more states don't have a 2A analog in their state constitutions than those that do have it.

[Edit to add]Found the link to McDonald: https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

**44 AMP** · September 5, 2020, 10:54 AM

Quote:

The McDonald case established that the Second Amendment limits the states as much as it limits the federal government.

Ok...so, WHO is doing the infringing doesn't matter...?? OR doesn't matter much?

My point is, if there is a valid law defining "unlawful carry" until/unless a judge rules it invalid, then it is the law, and I don't see how the 2nd A or the Militia acts would work as a defense.

zukiphile · September 6, 2020, 08:44 AM

Quote:

Originally Posted by 44AMP

Ok...so, WHO is doing the infringing doesn't matter...?? OR doesn't matter much?

That the 2D Am. underwent incorporation in McDonald means that this part of the the Bill of Rights, which only originally applies against the federal government, now also applies to the states (and therefore counties, townships and cities).

We now accept that states can't designate an official state church because of the language of the 1st Am., yet prior to incorporation several states had just that.

Incorporation of the 2d Am. would not prohibit a private entity, like a store, from prohibiting carry within a store.

September 3, 2020, 04:28 PM	#1
Aguila Blanca Staff Join Date: September 25, 2008 Location: CONUS Posts: 18,460	2A and the Militia Act(s) In another thread ( https://thefiringline.com/forums/sho...d.php?t=608486 ) a point was proposed that being in the unorganized militia might be a viable defense for someone (i.e. Kyle Rittenhouse, the Kenosha shooter) who stands accused of unlawfully carrying a firearm. One of the follow-up comments mentioned the Miller case before the SCOTUS. One of Miller's defenses was apparently that he was a member of the unorganized militia. However, in Miller, the SCOTUS tossed that argument (erroneously, as it turned out) on the basis that a short-barreled shotguns had no place in military applications and that, therefore, claiming to be in the militia wasn't a useful argument. I would be interested in what some of the attorney types here think about this. My view is that the Militia Acts of 1792 followed several years after the Bill of Rights, so an argument that the 2A is related to the Militia Acts can't be based in the 2A, it would have to be based on the language of the Militia Acts. And the Milita Acts of 1792 don't make any mention either of the 2A or the right to keep and bear arms. The Militia Acts strike me as having been for the purpose of setting up a structure so that the militias of all the states were similar in organization and equipment. Further, the original Militia Acts of 1792 were not written to be permanent, which they would (or should) have been if they had been for the purpose of defining and clarifying the 2A. They expired in 1794. The Militia Acts of 1792 were quickly replaced by the Militia Act of 1795 -- which was then amended in 1862 and then subsequently replaced entirely by the Militia Act of 1903, which is the version still in effect today. Consequently, I'm just not seeing a strong tie-in between the 2A and the Militia Act(s). Am I missing something? [Edit to add]Another reason I choose not to see a connection between the Militia Act(s) and the 2A (aside from the fact that the Heller decision said the 2A is not dependent on service in the militia) is age. I'm in my mid-70s, so I am well beyond the militia age range established by any of the versions of the Militia Act. If the 2A is dependent on being a member of the unorganized militia -- then it could be argued that I am not entitled to the 2A right to keep and bear arms. I'm not prepared to concede that. __________________ NRA Life Member / Certified Instructor NRA Chief RSO / CMP RSO 1911 Certified Armorer Jeepaholic

September 3, 2020, 05:10 PM	#2
zukiphile Senior Member Join Date: December 13, 2005 Posts: 4,450	That membership in the Militia isn't a limit on the 2d Am. [one of the key points in Heller] doesn't require that the right is entirely unrelated. The Militia acts certainly lend a statutory definition to the population that compose the Militia, though the idea that Congress is entitled to define [away] explicit constitutional terms is itself problemmatic. If the issue presented in the other thread is whether the 2d Am. prohibits age based restrictions on possession of arms to members of the Militia, I think there is a coherent argument in favor of a federal prohibition on such a restriction. If the explicitly stated right doesn't protect the defined Militia population, does it protect anyone? If a 17 year old member of the Militia can't have a rifle, can a 32 year old be prohibited from having one? The age issues raised by you and Rittenhouse point up some oddities about age and how we treat it. What country would need to call forth people our age to defend it? One in an awfully bad spot, I'd think. That shouldn't mean that at 46 someone comes around to take your arms because the right isn't limited to the Militia. At the other end of the spectrum, we have the modern phenomenon of an adolescence that can stretch into one's 30s, a legal structure that sees 18 and 21 as the big chronological milestones, and the fact that most modern 17 year olds are so isolated from so much of life that it is hard for old men to see them as much more than a child. The 17 to 45 year old bracket might not be an excellent fit for our current view of age, but Congress hasn't seen fit to amend it. I had to register for selective service when I was 17; like every other 17 year old I could have been compelled to serve and wield a rifle for the state. On what reasoned basis should I be denied the right to wield one for my own defense? Whether such a defense would succeed is another matter. __________________ http://www.npboards.com/index.php

September 4, 2020, 12:21 PM	#3
44 AMP Staff Join Date: March 11, 2006 Location: Upper US Posts: 28,820	I was required to register with Selective Service within 30 days of my 18th birthday, but I never did. Never got in any trouble over it, either. I think the fact that I had enlisted in the Army some 6 months prior might have had something to do with that.. As to the 2nd Amendment, Militia acts, and carrying a firearm (and using them as a legal defense for carrying a firearm) I think you are overthinking things. The 2nd Amendment explains why it is in the govt's interest to not infringe on the right to keep and bear arms, and orders the Fed govt not to do so. The Militia acts simply define what/who the militia is, under the law. I'd say that, if there is such a thing as "unlawful carry" in state law, then the 2nd Amendment is not protecting you from that "infringement", as it is done by the State, not the Federal Govt. You MIGHT have a case, if the State Constitution has a clause that mirrors the Fed 2nd Amendment. Most do, but the wording varies, which leads to differing interpretations. Fed Militia laws simply don't apply, that I can see. Not a lawyer, don't play one on TV, didn't stay in any hotel last night, my advice is worth what you paid for it. __________________ All else being equal (and it almost never is) bigger bullets tend to work better.