White House Readies Executive Action On Gun Control

[happyslug]

88. The problem is that is NOT the law.....

Congress has defined the Militia as two parts:

10 USC § 311

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.

https://www.law.cornell.edu/uscode/text/10/311

Hamilton actually supported the concept of a two tier militia system in the Federalist Papers:

Concerning the Militia (Federalist #29):

http://www.law.ou.edu/ushistory/federalist/federalist-20-29/federalist.29.shtml

The Complete Federalist Papers:

http://www.law.ou.edu/ushistory/federalist/index.shtml#Federlist

Please Hamilton's plans for the Militia was ignored by the First Congress who instead set up the Militia Act of 1792:

https://en.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_1/2nd_Congress/1st_Session/Chapter_33

US vs Miller, is the case where the Supreme Court ruled that weapons of the Militia is a factual finding reserve to a jury, thus no judge can rule a Weapon is a Militia Weapon as a matter of Law. That a Weapon is a Militia Weapon can only be found after a trial is held and the Jury finds it to be so, or the Judge sitting without a jury finds the weapon is a Militia Weapon.

http://caselaw.findlaw.com/us-supreme-court/307/174.html
http://www.constitution.org/mil/mil_act_1792.htm

Some History of the Militia and the National Guard, I disagree with parts of this paper, but it is a good paper to start out any discussion involving the Militia:

http://lawsonline.com/LegalTopics/Militia/regulated-militia.shtm

http://www.yalelawjournal.org/pdf/427_pa9skxwv.pdf

The problems with the Militia is that in rural areas (which was where most Americans lived prior to the 1920 Census), peace time Militia duty was done at the county seat, took all day (this is the day you WALKED to the County Seat) and generally NOT needed in peace time. Thus what is now called the "unorganized Militia" and what in the 1800s were called the "General Militia" tends to be most active in times of local crisis but the members all what to go home once the LOCAL crisis is over. This is both the strength and the weakness of the Reserve Militia. It is a Force Magnifier during times of local crisis, but quick to quit the field once that crisis is over. Thus good when the danger is near, useless if the danger is to far away (which may be the next county over, the distance varies depending on the crisis). Hamilton advocated that such Militia be called up once a year to see if they have the required equipment and then sent home till the next inspection OR a crisis occurs.

Mao Tse Tung and Ho Chin Ming agreed with Hamilton on the Reserve Militia, through they called their Reserve Militia different names (Local Militia, Militia etc, Stalin just called them his Partisans, a popular name throughout Europe till taken over by the Communists Guerrillas during WWII).

Hamilton, Mao and Ho then pointed out the need for a better equipped, armed Militia who would be willing to leave their home areas to go to other areas during their crisis. This is what the "Volunteer Militia" of the 1800s did, what Mao's and Ho's provincial militia did in the China and Vietnam. Like the Reserve Militia it is a Force multiplier but by itself can not win a war, but without it you will lose. It provides a reserve that can be called up AND MOVED to where it is needed, unlike the reserve Militia which is hard to move. This is the role of the ArmY Reserve and National Guard in the US.

The final key to all three, Hamilton, Mao and Ho, is a Regular military force. This provides the key hitting power, the ability to do offensive action that you can re enforce by with Provincial Militia/National Guard Troops AND local Militia. These are expensive to maintain and thus should be kept small as possible, in times of crisis the push should be to call up the National Guard and if needed the local militia.

Please note both Ho and Mao understood that units can go from Local Militia to Provincial Militia and then to being a regular force, and vica versa, depending on what is needed at that point of time. In peace time you need a small Regular Force, and slightly larger National Guard, and the local reserve militia should be counted and plans to call them into service should be made but left alone.

https://www.marxists.org/reference/archive/mao/works/1937/guerrilla-warfare/index.htm

http://www.rand.org/content/dam/rand/pubs/conf_proceedings/CF160/CF160.ch6.pdf

The problem in the US is we have had no domestic problems the National Guard and Regular Forces could NOT handle since the Civil War. Thus the reserve militia has been ignored. China appears to have the same problem, since the 1950s it has had no need to call up its local Militia so it has been ignored. From what I have read some training occurs in High School in both Russia and China to prepare the students for reserve militia role in the future, but that is about all.

On the other hand just because a "Right" is not questioned for centuries, does NOT mean it is no longer a right. If that was the case the Right to an Abortion would have been abolished in 1792 when it was NOT mentioned in the Bill of Rights. The same with being a member of the Militia, just because the reserve militia has been ignored since the Civil War (and watched as being dangerous since the General Strike of 1877, when the workers on the Pennsylvania Railroad and other rail lines went on strike and the Cities those railroads went through from Baltimore to St Louis backed the Strikers, in Pittsburgh the "Reserve Militia" turned out and drove the National Guard out of town, the State then imposed a blockade of Pittsburgh till the locals agreed to stay home).

The key to understanding the Militia is to accept its limits, and main limit is the concern for local dangers NOT out of area dangers. Political Leaders at the State and National Levels want troops who will respond to what the State and Local leaders think are State or national dangers, thus prefer National Guard and Regular forces over Local Militia. On the other hand during local dangers, the National Guard shows up and supports the local militia (often called "Volunteers" today, that they are doing the job of the Local Militia is not mentioned) when a local crisis occurs. The most televised event of this was the flooding in the Upper Mississippi River in the 1990s, you saw locals helping each other sandbag the river banks. The National Guard and Regular Armed forces showed up (without weapons) and help, but to be anywhere close to be effective they needed the local volunteers, the local militia, to get those sandbags in place.

In many ways Katrina hit New Orleans so hard and so fast, the locals did not have time to sandbag anything. You had all types of "Volunteers" showing up moving people, again the Reserve Militia calling itself up for duty. The flooding was so extensive that there was nothing anyone could do till the water receded except move people. The lack of boats meant the Reserve Militia could not do much, it had to wait for the National Guard and the Regular Armed forces to show up with the boats. Once the boats appeared, the reserve militia did a decent job of making things as comfortable as possible for the survivors, but like most volunteers they efforts was ignored given how bad the situation was in New Orleans (It was a debacle, the plan for Hurricanes hitting New Orleans involved using School Buses to move people out of the City who had no cars themselves. The problem those buses were stored in one of the lowest elevations in New Orleans and once the breach on the levy occurred, those buses were the first to be flooded. The Reserve Militia can NOT do much without the right equipment, and by the time the flooding occurred, there was no equipment for the reserve militia.

And lets not forget the Reserve Militia calling itself to action on 9/11. The passengers on the last plane hijacked, on hearing of the crashes in NYC and DC, called themselves into service and charged the cockpit in an effort to retake the plane. They failed, but they tried. My point was it was the passengers acting as a team, untrained, but still a team, and that is the heart of being a member of the Reserve Militia, to be called into service when no one else is available.