The increase in murder-suicide, in multiple gun ownership, and the rise of right-wing evangelical civilian militias has caused Second Amendment arguments relating guns and regulated militias to pervade the media. Speculation on what our forefathers had in mind for the role of militias is a new cottage industry. It is irrelevant. Militias are defined by existing federal laws that are intentionally designed to be changed when they become archaic. Redefining and specifying in detail, what determines a regulated militia and who its members are, may in effect, be a method of modifying the Second Amendment. At a minimum, it can pose serious questions relevant to the “Constitutional Right to Bear Arms” argument of the civilian population and rogue “Civilian Militias”..
I have found among eminent counsel and judges alike a lack of definite and discriminating comprehension, frankly acknowledged, as to what our militia is,... Indeed, more than once I was asked from the bench, "What is the militia anyway?"
57% of the people who invoke the Second Amendment to justify their possession of private arsenals do not know what the Bill of Rights is.
Although the Second Amendment to the U.S. Constitution reads,
"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.",
the definition of a “Militia” much less “A well regulated Militia” does not appear in the Declaration of Independence, the Constitution or the Bill of Rights. It is defined by Federal statute in the United States Code.
The organized militia and the unorganized militia were created by the Militia Act of 1903. The present day militia is defined by federal law, the “United States Code , 10 USC § 311 - MILITIA: COMPOSITION AND CLASSES.”
Codification and Repeal of Codification in the United States
In the United States, acts of Congress, such as federal statutes, are published chronologically in the order in which they become law —being signed by the President, on an individual basis. The official codification of Federal statutes is called the “United States Code.
The United States Code is the result of an effort to make finding relevant and effective statutes and eliminating expired and amended sections straightforward.
Repeal of 10 USC § 654
Recodification is the established process where existing codified statutes are repealed, reformatted or rewritten. This is often necessary as, over time, a code that contains archaic terms, superseded text, and redundant or conflicting statutes can be changed or repealed. The most recent example is the repeal of (DADT) Don’t Ask Don’t Tell, the “Policy Concerning Homosexuality in the Armed Forces” in 10 USC § 654
10 USC § 311 - Organized (Regulated) vs Unorganized (Unregulated) Militias
Under 10 USC § 311 the militia is defined by,
(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.
It is generally accepted that the unorganized federal militia represents all draft eligible individuals who can be called upon by the federal government to defend the country when necessary.
Under the modern definition of a regulated militia, there is nothing in the Second Amendment that explicitly allows people not in a federally regulated militia to keep and bear arms. If individual states allow locals to own guns it is not a “constitutional right”. It is a state granted privilege and therefore subject to both state and federal regulation through interstate commerce laws.
The Threat to Democracy of a Nation Of Hundreds of Unorganized Civilian Militias
Virtually every state in the US has multiple self-regulating rogue “Civilian Militias” with similar goals of overthrowing the US government in defense of “the people.”
For example, in North Carolina
“Given the rapid political changes occurring in our country, it appears that the unorganized militia will be needed to provide for the personal and collective security of its citizens, and the preservation of our Constitution and republican form of government. To that end, our forefathers have entrusted us with the ability, means, and the obligation to preserve it.
This website, therefore, is dedicated to the millions of armed Americans who make up the unorganized militia.”
“The Militia represents the authority and power of the people over the government and stands as the last defense of the citizens of this country against any domestic tyrants.”
In the absence of a standing peacetime army, the Federalized National Guard is the only defense against a concerted attack of angry misguided “Civilian Militias”.
In a nation involved in permanent wars with a standing army composed of more mercenaries than volunteers, and in control of drones, one of the deadliest remote controlled weapons in the world, the need for militias is on a par with the need for bayonets.
Existing federal law distinguishes between regulated and unregulated militias. Nowhere in the Constitution or in federal law is the concept addressed of allowing self-appointed gun bearing “Civilian Militias’ who “represent(s) the authority and power of the people over the government and stands as the last defense of the citizens of this country against any domestic tyrants.”
Ambiguities and bizarre speculations of what the authors of the Second Amendment had in mind by “well regulated Militias” will never account for the explosion in multiple gun ownership, the exceptional gun violence in America and the deadly development of democracy opposing militias.
The only solution is a drastic reduction in the access to guns by a uniform national policy. On the federal level, a redefinition of a “well regulated Militia” or total repeal of the legality of modern militia concepts through revision of 10 USC § 311 is a starting point for modifying the Second Amendment.