We The Unorganized Militia

We the Unorganized Militia

By Randy E. Barnett is the Austin B. Fletcher Professor at Boston University
and the author of The Structure of Liberty: Justice and the Rule of Law.

September 18, 2001 11:30 a.m.

"Well-regulated militia being essential to the security of a free state..."
The next time someone tells you that the militia referred to in the Second
Amendment has been "superceded" by the National Guard, ask them who it was
that prevented United Airlines Flight 93 from reaching its target. The
National Guard? The regular Army? The D.C. Police Department? None of these
had a presence on Flight 93 because, in a free society, professional
law-enforcement and military personnel cannot be everywhere. Terrorists and
criminals are well aware of this - indeed, they count on it. Who is
everywhere? The people the Founders referred to as the "general militia."
Cell-phone calls from the plane have now revealed that it was members of the
general militia, not organized law enforcement, who successfully prevented
Flight 93 from reaching its intended target at the cost of their own lives.

The characterization of these heroes as members of the militia is not just
the opinion of one law professor. It is clearly stated in Federal statutes.
Perhaps you will not believe me unless I quote section 311 of US Code Title
10, entitled, "Militia: composition and classes" in its entirety (with
emphases added):

"(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."

This is not to score political points at a moment of great tragedy, though
had the murderers on these four airplanes been armed with guns rather than
knives, reminders of this fact would never end. Rather, that it was militia
members who saved whatever was the terrorists' target - whether the White
House or the Capitol - at the cost of their lives points in the direction of
practical steps - in some cases the only practical steps - to reduce the
damage cause by any future attacks.

An excellent beginning was provided by Dave Kopel and David Petteys in their
NRO column "Making the Air Safe for Terror." Whether or not their specific
recommendations are correct, they are too important to be ignored and they
are not the only persons to reach similar conclusions about the need for
effective self-defense. Refusing to discuss what measures really worked,
what really failed, and what is likely to really work in future attacks - on
airplanes and in other public spaces - for reasons of political correctness
would be unconscionable. And we need to place this discussion in its larger
constitutional context.

Asking all of us if we packed our own bags did not stop this attack. X-rays
of all carry-on baggage did not stop this attack (though it may well have
confined the attackers to using knives). And preventing us from using
e-tickets or checking our bags at the street (for how long?) would neither
have stopped this nor any future attack. All these new "security" proposals
will merely inconvenience millions of citizens driving them away from air
travel and seriously harming our economy and our freedom. As others have
noted, it would be a victory for these murderers rather than an effective
way to stop them in the future. A way around them will always be open to
determined mass murderers. More importantly, none bear any relation to the
attack that actually occurred on September 11th.

Ask yourself every time you hear a proposal for increased "security": Would
have in any way have averted the disaster that actually happened? Will it
avert a future suicide attack on the public by other new and different
means? Any realistic response to what happened and is likely to happen in
the future must acknowledge that, when the next moment of truth arrives in
whatever form, calling 911 will not work. Training our youth to be helpless
in the face of an attack, avoiding violence at all costs will not work.
There will always be foreign and domestic wolves to prey on the sheep we
raise. And the next attack is unlikely to take the same form as the ones we
just experienced. We must adopt measures that promise some relief
incircumstances we cannot now imagine.

Here is the cold hard fact of the matter that will be evaded and denied but
which must never be forgotten in these discussions: Often - whether on an
airplane, subway, cruise ship, or in a high school - only self defense by
the "unorganized militia" will be available when domestic or foreign
terrorists chose their next moment of murder. And here is the public-policy
implication of this fact: It would be better if the militia were more
prepared to act when it is needed.

If the general militia is now "unorganized" and neutered - if it is not
well-regulated - whose fault is it? Article I of the Constitution gives
Congress full power "to provide for organizing, arming, and disciplining the
Militia." The Second Amendment was included in the Bill of Rights in large
part because many feared that Congress would neglect the militia (as it has)
and, Congress could not be forced by any constitutional provision to
preserve the militia, the only practical means of ensuring its continued
existed was to protect the right of individual militia members to keep and
bear their own private arms. Nevertheless, it remains the responsibility of
Congress to see to it that the general militia is "well-regulated."

A well-regulated militia does not require a draft or any compulsory
training. Nor, as Alexander Hamilton recognized, need training be universal.
"To attempt such a thing which would abridge the mass of labor and industry
to so considerable extent, would be unwise," he wrote in Federalist 29, "and
the experiment, if made, could not succeed, because it would not long be
endured." But Congress has the constitutional power to create training
programs in effective self-defense including training in small arms -
marksmanship, tactics, and gun safety - for any American citizen who
volunteers. Any guess how many millions would take weapons training at
government expense or even for a modest fee if generally offered?

Rather than provide for training and encouraging persons to be able to
defend themselves - and to exercise their training responsibly - powerful
lobbying groups have and will continue to advocate passivity and
disarmament. The vociferous anti-self-defense, anti-gun crusaders of the
past decades will not give up now. Instead they will shift our focus to
restrictions on American liberties that will be ineffective against future
attacks. Friday on Fox, Democratic Minority Leader Dick Gephart was asked
whether additional means we have previously eschewed should be employed to
capture and combat foreign terrorists. His reply was appalling. Now was the
time, he replied, to consider adopting a national identity card and that we
would have to consider how much information such "smart" cards would
contain.

Rather than make war on the American people and their liberties, however,
Congress should be looking for ways to empower them to protect themselves
when warranted. The Founders knew - and put in the form of a written
guarantee - the proposition that the individual right to keep and bear arms
as the principal means of preserving a militia that was "essential," in a
free state, to provide personal and collective self-defense against
criminals of all stripes, both domestic and foreign.

A renewed commitment to a well-regulated militia would not be a panacea for
crime and terrorism, but neither will any other course of action now being
recommended or adopted. We have long been told that, in a modern world, the
militia is obsolete. Put aside the fact that the importance of the militia
to a "the security of a free state" is hardwired into the text of the
Constitution. The events of this week have shown that the militia is far
from obsolete in a world where war is waged by cells as well as states. It
is long past time we heeded the words of the Founders and end the systematic
effort to disarm Americans. Now is also the time to consider what it would
take in practical terms to well- regulate the now-unorganized militia, so no
criminal will feel completely secure when confronting one or more of its
members.