A California jurist and Gun Tests reader recently wrote me a short note that said, Enclosed please find a photocopy of United States Code Title 10, Section 311, which contains the definition of militia. Your readers concerned with Second Amendment issues may find this to be of interest.
It was. Heres what Title 10, Section 311 says:
Sec. 311. Militia: composition and classes
(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.
With these facts in hand, I wonder how anyone can reasonably argue that the overwhelming numbers of gun owners in the United States are not members of the militia. By legal definition we already are.
This is important because in the larger gun-control debate, even if we ceded the point (which we shouldnt) that guns can only be possessed by members of the militia, most of us already qualify. Thus, current arguments about the initial phrase in the Second Amendment, A well regulated militia being necessary to the security of a free state, meaning only members of the National Guard can own guns are flat-out wrong. If youre male and between the ages of 17 and 45, youre in either the organized or unorganized militia. Thus, the right of the people to keep and bear arms shall not be infringed applies to us.
I recognize this isnt a watertight argument, and I dont think we should fall back from what is the clear intent of the Second-that the government cant infringe on our rights to own and keep firearms, irrespective of our gender or age.
But its eye-opening, and chilling, to realize how much state governments in California, Massachusetts, and other states are willing to ignore both federal law and the Bill of Rights as they strip citizens of their ability to own guns.