Saturday, December 22, 2012

The Second Amendment Can CREATE Gun Control

The problem with gun control activists is that they are beating their heads against the wrong part of the Second Amendment.   The Supreme Court in "DC Vs Heller" has ruled that the need for a militia is exactly why individual gun rights are preserved.   By deciding on the individual right to own a gun, the Supreme Court has created the absolute standard that the US is intended to have a militia and it is protected by the Second Amendment.  Their ruling tells us that, essentially, "the militia" and "the people" are legally one and the same. . . and guns are a common right they share.  This is all as it should be legally, and anyone who pretends otherwise is trying to create a "legal fiction" out of the intents of the Second Amendment.

In my view, the gun regulation community should be attacking an existing and very old legal fiction rather than trying to create another new one.  That fiction, in my view, is the current legal definition of "Militia" in the US militia code.    If the militia is such a critical thing, protected by an absolute right to the tools of life and death, then it would probably be important to know how it is legally defined wouldn't it?  It would be important to know if that definition was corrupted somewhere along the lines wouldn't it?  Would you want an unconstitutional, rogue, branch of the military running around on American soil?  How about a barely legal rogue branch that is wreaking havoc on society?  Would you want it changed?

The militia the Second Amendment spoke of is very easily found in the original Uniform Militia Act of 1792 and other militia codes of the day.  It was ALL able bodied males from 18-45.  The "well regulated militia" was the entire population of gun holders.  This was not an option.  Even those who didn't want to own guns were forced to buy one for their militia duty.  There was one and only one category of armed citizens, "well regulated militia."   So, lets use the Supreme Courts own standards to look at the Second Amendment backwards.  Individual gun rights are protected because "The individual" and "the militia" serve the same protected purpose in the eyes of the Court.   So why, then, is "the individual" not "well regulated" today as he was then?  The question is not:  "does the citizen have no rights to a gun because he's not militia."  The legal question should be: "does the citizen have the right NOT to be in a regulated militia while holding militia gun rights?"

The facts, as I see it, are that the majority of the American people were, basically, lax about their personal stake in the nation's defense at the turn of the 20th century.  It was easier to let others do the marching and take the risks.  Mandatory militia duty set up by our founders was basically viewed like jury duty with marching and pushups.  There were also some important flaws in the militia system which needed to be addressed.  This created the political will for change.  In 1903, over 100 years after the Second Amendment, a new militia code was passed.  That code created the National Guard which is what most of us think of as the modern militia today.  It was also the birth of a whole new branch of the military most have never heard of.  Because the people still loved their gun rights and it was very hard to change the Second Amendment, "The Unorganized Militia" was created.  That group is defined as "All Males 17-45 who are not in the National Guard. . ."  

This was, essentially, a legal but imaginary "class" of the militia that had nothing but gun rights.  It was a fiction, and an experiment but it was considered necessary to keep gun rights and militia in harmony with the Second Amendment.  When they created this class of militia, our early 20th century leaders unleashed a branch of the military on America that had millions of members, no commander, no orders, no discipline, no regulations, no code of conduct, no duties to anyone but themselves and full legal rights to light weapons.  Today we my want to ask ourselves what they were thinking. . . or at least we should ask if the experiment worked.  Would a responsible leader today think they had a right to do this in the name of domestic security?  Would it be legal for them to do this at all today considering the standards our leaders must meet to defend us?  Has anyone asked that yet?

If gun control advocates want to tackle this problem in a meaningful way, they need to challenge the legal definition of militia, and the legality of getting rid of mandatory duty.  They should force mandatory militia service back on Americans as a tactic to make us choose between our militia duty and our guns.  Then, maybe we will do the correct thing, which is to modify the Second Amendment to count us out if we want to get out of our duty. . . rather than making up an imaginary militia for ourselves in the military code.  

I would gladly sign up and get an official militia card that didn't really require much of me as an unarmed member if that's what it took to put stronger regulations on the decision and behavior of the people who choose to be the armed.  There should be NO armed militia in the US that is not well regulated.  The Unorganized Militia doesn't meet any of the standards in the constitution which describe something that can be given orders and sent places by the President or Governors.  If you qualify, do you know who you report to as a militia member?  Then how could you really be considered a member of anything?

I see two possible ways to force a decision between mandatory militia duty and changing the Second Amendment on the American people:

1) A challenge to the legal right to create the unorganized militia under the constitution in the first place.  No use of the militia in the constitution speaks of the states right to unleash an unregulated freelance group of armed citizens onto society in the name of domestic order or defense.  It is not military code, it is military chaos.  There should be no such class of people in our military.

2) A Presidential order calling up all classes of militia to service.  I dealt with this in another post.  Believe it or not, ALL males today from 17-45 are legally militia. They don't even need to be drafted with an act of congress.  In order to keep gun rights, our ancestors essentially agreed that they and all future generations were automatically part of this legal but "unorganized" military branch just by being born in America and turning 17.  I'm no military legal scholar, but as far as I can tell, the President could command the "unorganized militia" to become regulated with the stroke of his pen just by claiming a large enough national crisis and refusing to see a distinction between them and the National Guard.   Paying for it might be trickier. .  but that military budget is already pretty damn big.  Rob Peter to pay Paul and all that.   Either way, the point is to force the decision people must make between being legally obligated to the President's regulation, or having an absolute right to a gun.  

If these approaches both seem too extreme there is one more to consider.   Since all gun owners technically have their rights as militia. Maybe the approach is to insist that gun control is not a matter of civil law.  It should be considered a military code issued as orders to all members of the US militia, organized and unorganized.  Would the Supreme Court really support the individual right not to follow orders by the President to the Militia?

Wednesday, December 19, 2012

Mr. President, Please Call the Unorganized Militia Up For Inspection

"A well regulated militia being necessary to the security of a free state. . . ."
-United States Second Amendment-

Mr. President, I just dropped my two girls off at elementary school today.  One of them is in first grade and the other is in third grade.  Can you imagine what was on my mind as I looked at all the houses across the street and wondered who lived there?

We are in a national state of crisis, Sir.  There is a freelance insurrection occurring nationwide.  Self appointed, uncentralized, enemy rebels are appearing from within our nations ranks and committing suicide attacks against our neighbors and our children using the firepower of all the men in Shays Rebellion combined.  Even our elementary schools are not safe.  Like international terrorists, they are unpredictable, nearly unstoppable and they are using our own laws, our freedoms, our weapons and even our very right to defend ourselves against us.   This is a national crisis every bit as real and damaging as 9/11 and it requires a national action that is just as severe in response to the threat.  What can we do to meet this threat?  

Mr. President, I know it is possible to create some more marginal gun regulation but I have come to believe we will never be effective at reducing the violence meaningfully this way. The Second Amendment simply makes it impossible to regulate the weapons very well. Gun defenders will quickly tell you that no limitation on guns will stop a surprise attack mass murderer.  Unfortunately, I agree.  It is not the gun at fault, or the amendment.  It is the people who hold guns that cannot be trusted to make correct decisions.   

I submit to you that regulation of guns is not enough by itself.  I have been a staunch defender of the gun rights community for a long time but my children are the deal breaker for me. I want to begin looking for new ideas to tackle this issue in a completely different way.  This is why I would like to point out today, that we/you DO also have every legal right to regulate the PEOPLE when it comes to national defense.  It is pointed out in the very same Second Amendment and it is time that "We the People" are all called upon, en masse, to serve our nation, if only by presenting ourselves for inspection.

Today gun owners, and all the other citizens who qualify but are not already serving, are legally a "class" of the US militia known as the "unorganized militia."

The United states Militia Code (1903 militia act):
10 USCS [Armed Forces]
   (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 [which deals with
       membership in theNational Guard]  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. [AKA: Gun owners and the rest of us who qualify]"

There is no tradition or history of this #2 group of militia being used at all in the entire spectrum of national defense over the years and this is rather strange to me.  The unorganized militia is, arguably, a legal fiction which actually contradicts the Second Amendment.  Consider the Uniform Militia Act of 1792. That original militia law (the first militia law written under the new Bill of Rights) recognized NO body of citizens as the "Unregulated Militia." 

Original Militia Law (1792 Uniformed Militia Law):
That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of 18 years, and under the age of 45 years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizens shall reside, and that within 12 months of the passing of this act. ...That every citizen so enrolled and notified, shall, within 6 months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, a and a knapsack [etc] ... and shall appear so armed, accoutred and provided, when called out to exercise, or into service..and that from and after five years from the passing of this Act, all muskets for arming the militia as herein required shall be of bores sufficient for balls of the eighteenth part of a pound. And every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.
That the rules of discpline, approved and established by Congress in their resolution of 29th of March, 1791, shall be the rules of discipline to be observed by the militia throughout the United States... It shall be the duty of the commanding officer at every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained agreeably to the said rules of discipline".

The "well regulated militia" of our constitution under the original laws and intentions was every male from 18 to 45 in America.  I don't think even our "originalist" Supreme Court Justice Scalia could disagree.  A term for the "well regulated militia" we might use today to describe them was "military discipline for EVERY GUN OWNER" including former non gun owners who had to go buy it for the purpose.  

Mandatory militia duty was very unpopular to citizens as the country began entering times of peace and prosperity.  Think: jury duty with pushups and marching.  It was politically rather easy for politicians and members of the military to change it so it suited their needs better.  That doesn't mean they served our civilian national interests indefinitely by doing it, however.  While the term "unorganized militia" has been around since the 1840's, the term officially appeared in the US militia law defining all of us who do not serve in the 1903 militia act quoted above.  That militia act also folded all remaining "organized militia" into the National Guard.  So, we have an "unorganized" class of something that is really only defined by it's "organization" and "discipline."  It is a sophistry.  The only reason I believe anybody accepted this legal gymnastics, is that it got Americans out of mandatory militia service without letting go of the Second Amendment gun rights.  Who cares how it happened if we get our cake and eat it too!!  God bless America. . . .     As a national defense force, and a benefit to national security, however, this artificial, unorganized, leaderless, discipline free, militia class was completely untested and mostly a matter of pride rather than criticism in people's viewpoints. Today, I believe, we are beginning to get a sense of the results of that test. . . and that pride. 

So, we now have this large body of citizens defined as "US Militia" who have no duty to the military or our national defense, no demand for discipline and no obligation to present themselves for inspection unless called, yet, enjoying all the gun protections of a military branch.  This is a bit like me holding up my gun and claiming to be an "unorganized member" of the Marine Corps who is vital to defending America.  I know some Marines who would kick my butt barehanded if I claimed that. .  even with me holding my gun. . .because it takes more than a gun. . .   but here we are with citizens legally allowed to demand military privileges in a militia in the name of defending us all.  It seems just as absurd to me.

While it did eliminate mandatory service, one thing the creation of this "unorganized" group of citizens did not do, as far as I can tell, is make us exempt from being called into State and Federal service by the Governors and President if they deem it necessary.  There will always be those who will not be found and they will remain in the unorganized class, so the term is intact.  99% of them could be legally "well regulated" if we chose to do it, however.  Some people I can think of may kick and scream about this. . . but the legal facts suggest to me that we/they only have gun rights because we/they are all involuntary reserve government security officers under the law.  We, like the military, report to the Commander-in-Chief if he calls us.  We just haven't been "activated" since we were established in the 1903 Militia Act.  We are a "sleeping" security force.  I suggest it is time to wake us up and test a militia system designed for the problems of 21st century of America, not the 17th century and 19th century America.

This government security force we belong to may not sound very much like the pop culture idea that the Second Amendment is there to help us protect ourselves FROM the government.  While this self defense idea is technically an accurate side effect, it is simply a legal fact that the government has always been the commander of the US militia including us unorganized members.  All militia groups who have risen up and challenged that in the past have either been declared illegal or folded into the state guards and those who were particularly disagreeable were put down (See: Waco Texas 1993).

1903 Militia Code:
     Whenever the President considers that unlawful obstructions,
     combinations, or assemblages, or rebellion against the authority
     of the United States make it impracticable to enforce the laws
     of the United States in any State or Territory by the ordinary
     course of judicial proceedings, he may call into Federal
     service such of the militia of any State, and use such of the
     armed forces, as he considers necessary to enforce those laws
     or to suppress the insurrection."

This gives the President his own power to call up the militia if Federal protections cannot be enforced by normal means.  The Posse Comitatus act prevents his use of the traditional military this way but he has more flexibility with the militia.

I submit that a pattern of American gunmen committing mass murder suicide against soft targets is no different from a pattern of foreign madmen committing the same murder suicide, except that it is more like a domestic insurrection by individuals than foreign attacks.  Unfortunately, as I said above, one "personal insurrection" by an individual today can potentially have the same fire power and create more death than all the men with arms in famous insurrections of the past.  Insurrection is what empowers the President to act in non traditional ways.  It is the kind of national emergency which is beyond the reach of the normal law enforcement and protections in the United States or any territory.  At best, our current laws only provide responses to these insurrection incidents which creates nothing but trauma and stress to our citizens and the first responders who are almost always powerless to stop it, if not victims themselves.  

Do not misunderstand, I do not request the militia so that teachers have guns and everyone will run out and buy one.  Any true expert in defensive tactics will agree that only a highly trained individual could build the kind of artificial reactions from his body that would go against his human panic responses and stop a surprise attack shooter.  Arming lightly trained soft targets is simply a fantasy defense in the aftermath of tragedy, not a sound defense tactic for the future.  As any warrior in the war on terror will tell you, the best defense in surprise attacks against civilians is to stop the enemy's ability to mount the surprise attacks in the first place.  I want the militia to be activated so that we can bring back regulation, discipline and civil responsibility to ALL gun owners, as well as empowering those who want to serve in other ways.  Such a system would not effect gun access to law abiding stable people but it would have many screenings, safeguards, regulations and other protections against the crazy gunman who slipped by normal judgement. We simply can't count on ordinary people who may either barely pay attention or have bad judgement about a person's capacity to go crazy with guns.  

1903 Militia Code: 

     The President, by using the militia or the armed forces, or
     both, or by any other means, shall take such measures as he
     considers necessary to suppress, in a State, any insurrection,
     domestic violence, unlawful combination, or conspiracy, if it--
      a) so hinders the execution of the laws of that State, and
         of the United States within the State, that any part or
         class of its people is deprived of a right, privilege,
         immunity, or protection named in the Constitution and
         secured by law, and the constituted authorities of the
         State are unable, fail, or refuse to protect that right,
         privilege, immunity, or to give that protection; or
      b) opposed or obstructs the execution of the laws of the
         United States or impedes the course of justice under
         these laws"

My reading of the Second Amendment and the US militia code gives me several ideas about how the President, if he chose, could set up a modern version of the militia that could work as a well regulated civilian layer of national defense.  It would not be a militarily active branch of our armed forces as much as a supervised civilian force that works at home to fill in the Gaps.  The following is just a rough sketch of what might be possible, not a finished proposal.  I am a Father, not a military scholar.   I think it is a reasonable starting point, though, for a discussion about use of the US militia code in a way that helps both to reduce gun violence and provide additional benefits to citizens and communities that modern times may call for

The scenario would go something like this:

After a large period of horrible gun violence by internal rebels against the American People, the Militia become activated nationwide under the authority of the President.

1) All able bodied citizens who meet the above criteria for "unorganized militia" will be immediately called into action by the President and registered into a new, fully domestic, layer of The National Guard within their respective states, created and maintained for this new purpose.  They will register at the nearest National Guard base and they will receive a militia card that identifies their State and Federal militia credentials as well as their status as a member.  The organization will be operated primarily as a lower, civilian, layer of the National Guard system, similar to some state guards. It would be under the direction of Governors and regulated by the States but partially funded and coordinated by the Federal Government just like the National Guard.  

2) This branch of the US militia will consist of two primary classes:  Armed Militia and Unarmed Militia.

3) Like public schools, the use of this militia can vary from place to place beyond basic criteria.  It could be a simple registration program (no pushups!) with light discipline which tracks armed or unarmed status and does some training, licensing and regular screening of armed individuals.  Or it could train up citizen soldiers and be very active in all kinds of community service or security activities, depending on the local needs and wishes.  Like with schools, each community would decide how their militia is used beyond the basics of registration, training and qualifying for armed status.    The next few ideas show possible examples.

4) All members of the militia will immediately gain access to the federal employee health care and retirement pool, or similar state run programs whichever is better for them.  The Federal and State governments will pay as much as 2/3 of the premium for these benefits as compensation for their service, depending on how involved they are.  There can also be paid opportunities.

5) Armed militia will face the same screening and safety management of weapon users as the military and police do with their own members, except that they cannot be removed from or refused membership, they can only have their militia status changed in various ways.  They shall be required to report for regular musters which could include training in gun safety, public safety, and security.    Typical armed militia would be trained and drilled in various emergency and security scenarios and pass tests and trials which will determine psychological and/or physical fitness for various armed duties they volunteer for.  Employers are required to allow their employees to perform this service just like they are with jury duty.  If armed militia fail psychological testing or background checks in the screening process, or they are facing obvious dangerous stress or trauma, they can be placed under limited armed status, or complete unarmed status under the authority of local commanders.  They can also petition to get their status back if things change.  Unarmed status would make any access by that person to a weapon by anyone else illegal and the offender would be liable for any harm the unqualified person does.  Local citizens who feel an individual is dangerous can report them to the militia and they can be required to submit to testing or counseling for review.  All individual rights are present and appeals are possible.  The idea is simply to use the military discipline and chain of command to have more than one person's judgement when it comes to granting life and death powers.  We disarm citizens today using the civilian laws such as banning handguns in cities, forcing background checks and forbidding criminals from owning guns.  This would use well regulated military knowledge and discipline to make that process more competent with more professionals specific to firearms involved.

6) All members of this new militia will have the President as their Commander in Chief, but they will mostly be directed and supervised as State Guard members of the National Guard under the Governors.  They will backup the National Guard during times of State and national crisis such as hurricanes, tornadoes, forest fires, riots and man made disasters like large spills or explosions. Armed members can also act under the mandatory direction and supervision of the local authorities such as police to travel with them patrolling dangerous neighborhoods or helping to secure soft targets such as schools when threats are detected.  In this capacity they would be like armed police cadets.  Members will have a lot of choice where they can best serve their communities and they will be able to serve in any way they qualify for that needs them.

7) Armed members of the US militia will have strict regulations regarding how and where their weapons are stored, how many are available to anyone else in the home and how they are used on public property.  If a resident in the house is under fully disarmed status, then the weapons of other members cannot be stored there or they must have very strict limitations.  All male citizens over 17 must be tested and qualify for armed status if they reside in homes containing fully available arms lockers, even if they don't plan to use them.  There will always be an easily accessible secure location provided by the State Guard to store any arms not allowed or not wanted at the home.  

8) Armed militia will also, in some cases, when needed, have the same kinds of privileges and weapons that the State or Federal police forces have available but only with special qualifications and under the direct authority, supervision and liability of that force.

9) Unarmed members of the US militia will register themselves with the local National Guard just like armed members but they have less obligations and benefits unless they choose to accept them.  Otherwise, they would get a militia card that feels more or less like a CPR certification or an organ donor card.  They can do as little as just registering as unarmed if they want, or they can choose to do emergency and volunteer work to earn better rewards from the system.  Unarmed members, for example, could list the skills they could offer in an emergency if they want to participate.   At such times, they will receive a reverse 911 call telling them where to report.   If these unarmed members choose at any time to become armed militia members, then they must legally apply to change their status to "armed" and pass all required tests and muster duties.  They can then legally purchase any arms available on the civilian market.

10) More advanced versions of this State Militia system could be a doorway for members to exchange their service for not just health care, but training in skills such as nursing, EMT, security guards or civil engineering work.  

11) It will never be illegal to have access to guns in the USA but it COULD become illegal to avoid the militia registration (like with the selective service) and it COULD be illegal to refuse to submit to militia inspection and regulation, especially if you want to own a gun.  It would, most importantly, be illegal to possess a gun if you are found to be a dangerous risk in the screening process.

This new branch of the militia will provide some very valuable advantages to our national security:

1) It will help make sure that the gun OWNERS we have are fit to be armed by regulating the unorganized militia.  

2) It will make all gun owners fit to be armed available to serve their communities in emergencies and in a security capacity under the supervision of officials in exchange for government benefits and or skills training.  

3) People will always make bad decisions with gun ownership but this will make it much easier to keep better track of the chain of personal responsibility and liability, much like we do with cars.  

4) All citizens can use the militia system to coordinate their desires to help others in times of emergency.  Many citizens wanted to do something after 9/11.  Many citizens what to be able to do something right now in the wake of this tragic elementary school shooting.   The US militia system would give us a better way to contain people unfit to be armed and empower people to help in the aftermath of disasters and emergencies.  Many skills that are not usually associated with military operations can be brought into the unarmed militia duty to serve the public interest at the very times it is needed most.

Mr. President, I completely understand that this is a very drastic action I am suggesting and I expect many skeptics.  What I suggest, though, is that nobody can really deny that it is the most deep reaching, constitutionally supported way to contain gun violence available to us under the Second Amendment.  Those who stand behind the Second Amendment have very little argument with the President's ability to call up the militia to use it in any way necessary to protect people who are not being protected in the normal way.  Nobody can argue that a well regulated militia is half of the Second Amendment.   It has been determined by the Supreme Court that we cannot take away individual GUN rights or regulate ACCESS because of this militia provision but that doesn't have anything to do with regulating the gun OWNERS,  AS MILITIA.   

I also see this idea as something that both liberals and conservatives can embrace if they think about it honestly enough.

The conservatives have always wanted better representation by safe gun owners in homeland security.  Many gun owners have long wanted to participate in some kind of part time security function.  Some may not qualify for professional organizations but they may still be very useful in more casual work.  Others may be retired from professional military or police service but they still want to make a difference in the community.  It is often said by gun advocates that we just need more legal, safe, gun owners, not less guns.  Many of them want mandatory safety training for gun owners.  This new militia system would take more steps to provide exactly this.

The liberals, on the other hand, will cringe at the idea of making gun owners into militia members and they will likely have police state concerns about militia marching down main street and the whole nation militarizing under this system.  They might fear it is a system that encourages more gun owners.  I suggest, first, that the responsibilities attached to gun ownership under this system may actually discourage some people from owning one unless they were very serious about it.  Who wants to go do drills and qualifications for the government just so they can pose in front of a mirror with a gun or shoot paper targets?  I also suggest that honest liberals also can't help but admit that the Second Amendment was created so that we would BE a militarized society.  We can't escape this, we can only contain it.  It was that balance of "well regulated" military organizing that made the unlimited access to weapons a reasonable law to write in the first place.  This request to call up the unorganized militia again is simply admitting that we are all already legally members of the military and it is time to start REGULATING US with our guns just like the military regulates it's own people's access to arms.  No liberal I know would ever trust an untrained, undisciplined, leaderless military organization running around in America with each member doing what it wants.  Yet, we have one right now by another name.   REGULATING gun owners themselves under military discipline is more constitutional, with more options to screen and disarm unqualified people than any challenges to gun access under the Second Amendment could possibly provide.  It also gives liberals an opportunity to tell the gun owners that they need to put their money where their mouthes are and become the responsible national defense force they claim to be.  Meanwhile, the peace loving person's own personal, disarmed, militia service can feel less like jury duty with pushups and more like organized volunteering before and after the next hurricane or forest fire.  

I don't know that any solution to this horrific new level of domestic terrorism we are seeing will be perfect or easy.  Doesn't anyone else think it's time we tried cutting a little deeper into the problem, though?


The US Second Amendment:

Militia FAQ:

Uniform Militia Act of 1792:

Militia act of 1903

Posse Comitatus act: