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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 affirmed the 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?"

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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?

Extended (Optional)

Originally posted to Plisko on Sat Dec 22, 2012 at 01:04 PM PST.

Also republished by Repeal or Amend the Second Amendment (RASA).

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