Think Free, Live Free

An intellectual and visceral examination of all things free, with a healthy emphasis on the right of free men to own arms.

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Location: Macon, Georgia, Southeast United States

Co-founder of the Mercer Law School Second Amendment Society and fan of freedom at home and abroad. Admirer of Thomas Jefferson, James Madison, and Ronald Reagan. Detester of political correctness and the false dogma it imposes. Not entirely as vain as this profile sounds.

Tuesday, October 11, 2005

Militia

With a big round of federal and National Guard military bases to be closed, some Air National Guard components will lose their entire flight capacity. The commanders of these Air National Guards and the governors of their states are none to pleased. Some have sued the federal government to stop them from closing the bases. They have invoked the militia clauses of the Constitution.

Article 1, Section 8 says that Congress can "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Congress may also "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."

If you read the first provision literally, the "Militia" in the Constitution cannot be forced by Congress to deploy outside the United States. (The reluctance to leave the United States caused problems in the War of 1812). The Militia can only be used to suppress insurrections and repel invasions, not say, invade Iraq.

The second provision says that the authority of training the Militia is left to the states. I'm not quite sure what a court would say about the situation, but the National Guard is federally trained (not all training is federal but a lot is), inference then being that it is not the Constitutional Militia, which is trained by the states.

These points lead to the conclusion that: 1. the National Guard is not the "Militia," and 2. if it is, Congress can organize, arm, and discipline it, so the states have no way to stop the federal Government from closing the bases by invoking the militia clauses.

I think the National Guard is not the Militia. It is a "federal/select militia," not a true militia. The United States Code still says the unorganized militia is every able bodied man within certain ages not in the "organized militia," or National Guard. (10 U.S.C. Section 311). The "Constitutional Militia" cannot be sent overseas by Congress. Obviously, the National Guard is sent overseas. Since the National Guard is an "organized militia" (1o U.S.C. Section 311), it is a select militia controlled by the federal government, not the Constitutional Militia the founders envisioned. The governors suing the feds will lose.

Think Free, Live Free
C.A.G.

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