Following is the text of a sidebar to an article in the April, 1995, issue
of Soldier of Fortune magazine, page 48, entitled "..necessary to
the security of a free State...", by Mike Williams. The sidebar, by Wayne
Anthony Ross, appears on page 52. There are numerous defects in this sidebar,
and some defects in the main article. I provide a critique of the sidebar first,
then of the article, following the text of the sidebar. Readers are invited to
offer further criticism and to convey them to Robert K. Brown of Soldier of
Fortune, 5735 Arapahoe Ave, Boulder, CO 80303-1340, 303/449- 3750.
The sidebar is here recomposed for fax transmission, and because the author
had an advance copy of it a month prior to publication, choosing not to react to
it until after it was published in its final form, in case some of the defects
might have been removed in editing. They weren't.
Join A Militia -- Break The Law?
Legal research on the subject of militias raises the question of their
authority to organize. Article 1, Section 8 of the Constitution of the United
States provides that: "The Congress shall have the power ... To provide for
calling forth the militia to execute the laws of the Union, suppress
insurrections and repel invasions ... To 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 officers, and the authority of training the
militia according to the discipline prescribed by Congress."
The Second Amendment reads: "A well regulated militia being necessary
[for] a free State, the right of the people to keep and bear arms shall not be
The Constitution, therefore, demonstrates that militias are a creature of
the state, subject to being called forth by the U.S. government "to execute
the laws of the Union..." This is bolstered by the wording of the Second
Amendment which holds, "A well regulated militia being necessary [for] a
Free State..." and by Article 1, Section 8, Subsection (16), which reserves
to the states "the appointment of officers and the authority of training
Title 10, U.S. Code, Section 311 further stipulates that the militia
consists of all able-bodied males aged 17 to 45, both citizens and those
who have declared their intent to become citizens, and of female citizens who
are officers of the National Guard. It also specifies that the militia consists
of two classes: the organized militia and the unorganized or reserve militia.
Many states have similar statutes. Those citizens who apply, or are called up
for service and are accepted by a state militia, are part of an organized
militia. All others eligible under the law are members of the unorganized
militia, and are subject to call up by the state.
Thus, while most citizens are members of the militia, and therefore have the
right to keep and bear arms to respond to a call to assemble by lawful
authority, the appointment of officers, and the training of militia members are
the responsibility of the state. These militias that purport to support the
Constitution, yet have appointed their own officers and conduct their own
training without authority from the state, are therefore in apparent violation
of Article 1, Section 8, Subsection 16 of the U.S. Constitution.
The Michigan Constitution provides in Article III, Section 4, that "The
militia shall be organized, equipped and disciplined as provided by law."
This "rump" organization has not been "organized, equipped and
disciplined as provided by law." Instead private citizens, well-meaning
though they may be, have organized, equipped and presumably disciplined
themselves without any legal authority whatsoever.
Interesting enough, the state of Michigan, and a number of other states,
already have organized militias other than the National Guard. In Michigan, this
militia is known an the Michigan Emergency Volunteers. Other states call their
organizations State Guards, State Military Reserves, State Militias or State
Defense Forces. One wonders why this Michigan group doesn't simply join the
authorized and organized Militia of Michigan.
Further evidence that states retain the power a govern and regulate militias
can be found in American Jurisprudence: "...the state governments
have the power to regulate or prohibit associations and meetings of the people
.. and they also have the power to control and regulate the organization,
drilling, and parading of military bodies and associations, except when such
bodies or associations are authorized by the militia laws of the United States.
The exercise of this power by the states is necessary to the public peace,
safety, and good order. To deny the power would be to deny the right of the
state to disperse assemblages organized for sedition and treason, and. the right
to suppress armed mobs bent on riot and looting.
"Prohibiting any body of men, other than the regular organized militia
and the regular troops of the United States, to associate themselves together as
a military company or organization, or to drill or parade with arms without a
proper license, is not violative of the federal Constitution."
In light of this guidance, states have enacted legislation regarding
militia-type training. The California Penal Code Section 11460 states:
"(a) Any two or more persons who assemble as a paramilitary
organization for the purpose of practicing with weapons shall be punished by
imprisonment in the county jail for not more than one year or by a fine of not
more than one thousand dollars ($1,000), or by both.
"As used in this subdivision, 'paramilitary organization' means an
organization which is not an agency of the United States government or of the
State of California, or which is not a private school meeting the requirements
met forth in Section 12154 of the Education Code...
"(b)(I) Any person who teaches or demonstrates to any other person the
use, application, or making of any firearms, explosive, or destructive device
... or any person who assembles with one or more persons. for the purpose of
training with ... the use of any firearm ... with the intent to cause or further
a civil disorder shall be punished..."
The Second Amendment should not be confused with the legality of citizens
militias. The NRA, while supporting and defending the amendment, does not
believe that the right to keep and bear arms is dependent upon membership in a
militia, and has drafted this response:
"It is the NRA's view, based on law (Article 1, Section 8 of the U.S.
Constitution; Title 10, U.S. Code, Section 311(a)), court precedents, and legal
historical interpretation, that all able-bodied persons, explicitly those
between the ages of 17 and 45, are members of the federal unorganized militia,
except members of the organized state guards ... the National Guards of the
various states (which also serve as a part of the National Guard of the United
States, a military reserve subject to nationalization by the President of the
United States), and certain government officials. An "organized citizen
militia" must be created under the Constitution itself and/or the laws of a
"Title 10, U.S.C., clearly affirms the existence of the citizen
militia; it is little changed since the original Militia Act of 1792 (except for
the addition in this century of recognition of the third type of militia, the
federally supported National Guard, in addition to the enrolled and unenrolled
"Further, the individual right to own firearms is guaranteed by the
Constitution, but the right to own firearms is not at all dependent upon the
militia clause. The militia clause of the Second Amendment merely adds to the
reason for the right, which is a common law right rooted in the right of
protection of self, family, and community.
"The Second Amendment guarantees an individual's right to arms;
participation in a citizen militia organization does not make that right more
valid nor any stronger."
-- Wayne Anthony Ross
Critique of "Join a Militia -- Break the Law?"
By Jon Roland
It is unclear from the way the sidebar is presented whether the editors
intended it to represent an opposing view to that of the main article. If so,
then this intent should have been shown by some label such as "an opposing
view". However, since it mainly discusses points of law, it is not opposed
to the main article, which discusses events and personalities. Balance would
require a discussion of opposing legal arguments. Since these are missing from
this issue of the magazine, and since the legal points made in the sidebar are
painfully unsound, I will herein present a legal brief on the subject which
corrects some of the deficiencies of the sidebar.
One of the things missing from the magazine is information about the author,
Wayne Anthony Ross, and his credentials to write such a legal analysis. My
source states that he is a colonel in the Alaska State Defense Force, which is a
select militia of the State of Alaska. I do not know if he has had any legal
training, but his article indicates that if he has, he didn't master his
lessons. Taken as a position statement, his sidebar seems to represent the legal
doctrine on the subject that the Ruling Elite would like to establish. It is not
clear that he has any authority to speak for the NRA, but if he has accurately
stated their position, then that position is in error and needs to be changed.
First, Ross misquotes the Second Amendment. He substitutes the word "for"
for the phrase "to the security of". This is indicated in the sidebar
by surrounding the word "for" in brackets, but the editors should have
made the correction. They got it right in the main article by Mike Williams.
That Ross cannot quote the Constitution correctly, and the editors of the
magazine can't catch it, is indicative of the quality of the reasoning elsewhere
in the sidebar.
Second, Ross commits the non sequitur that reserving the training of
militias and the training of their officers to the states, as provided in
Article 1, Section 8, Para. 16, means delegating an exclusive power to the state
governments. It is clear from the language and from historical analysis
of the development of the Constitution that "reserving to the states"
only meant the power was denied to the national government. For the Framers, the
State was the "people of the state", not the "government of the
state". When they wanted to indicate the government of a state, they used
the language "Legislature of the State", as they do in Article 1,
Section 8, Para. 17. It was left to the people of each state to decide what
powers, if any, to delegate to their state governments for organizing and
training militias and for the appointment of their officers. In the absence of
such delegation of authority, the authority defaults to local communities under
common law and established practice during the period in which the Constitution
was adopted. That practice was for militias to be organized by county or
township, usually under the authority of the highest elected law enforcement
official, such as the sheriff or constable. However, any credible person could
call up the militia, as Paul Revere did during his famous midnight ride.
Third, Ross makes the hidden and false assumption that a militia must be
some large assembly of persons. Under the republican theory of government on
which this nation was founded, the right of self-defense which we have in the
state of nature, becomes transformed, when we enter into the Social Contract,
into a duty to defend the community. When a solitary person defends
himself against criminal attack, he is not, strictly speaking, defending
himself. He is defending the community. It just happens that the member of the
community he is defending is himself. When he does so, he is calling up the
militia, even though the only militiaman he calls up is himself. If he asks any
other person for aid in doing so, he is calling up the militia consisting of the
two of them. And so forth for larger numbers of persons. There is no minimum
size to the militia.
Fourth, Ross falsely claims that the 1903 Dick Act, which is encoded in 10
USC 311, did not substantially change the Militia Act of 1792, and that it is
constitutionally valid in the definitions it advances. In fact, it repealed the
Militia Act of 1792, which required all free white able-boded males age 18 to 45
to keep a weapon then considered suitable for militia duty, and which was
amended in 1862 to include all males regardless of race. The Dick Act introduced
a subtle change in word usage. That part of the total militia which were
required to keep a weapon began to be treated as though it were the entire
militia, although its language did suggest that they were the militia which was
required to respond to a call up. The Dick Act also introduced the term "unorganized"
for that portion of the militia not included in various select militias such as
the National Guard, with the evident intention that they remain
unorganized, which is clearly contrary to the intentions of the Framers. In
1933, the National Guard Act amended the Dick Act to establish the authority for
raising the National Guard not on the "militia clause" but on the "army
clause", thus making it a part of the regular armed forces, subject to
being sent abroad, as the constitutional militia is not. What 10 USC 311 defines
as the "unorganized" militia might more properly be called theobligatory
militia, those who may be required to respond to a call up. That is
clearly a subset of the entire militia, which includes all citizens and persons
intending to become citizens, male or female, of whatever age, able-bodied or
A militiaman is simply any citizen in his capacity as a
defender of the community, who is obliged to do so within his or her ability.
Militiahood is a role which citizens may play as the situation requires it. It
is not a permanent condition. But just as each citizen has a duty to defend the
community, he also has the duty to prepare himself to play that role
effectively, and to join with others in his community to train and to function
as organized forces, and the elected officials of his community have the duty to
facilitate that organization and training. If those officials fail in their
duty, he must carry on without their participation.
Even though the Militia Act of 1792 has been repealed, by the logic of the
Constitution, that part of the militia which is the obligatory militia still has
the duty, and not just the right, to keep and bear arms suitable for militia
duty. For all others, it is just a right and not a duty.
Ross asks why the persons who have become active in the Michigan Militia did
not just join the Michigan Emergency Volunteers, the State Guard. The answer to
that goes to the heart of the concept of the militia. State Guards are select
militias, not true militias. To be a true militia, it must be open to
all of the citizens in a community, normally the result of a general call up to
an entire area, representative of the community as a whole, and not just a few
persons chosen for compliance with some purpose of the authorities and
subservient to their commands.
One of the main purposes for the militia is to serve as a counter to the
government and any standing army it might maintain. The Framers intended that
the militia should always be able to prevail over that combination, and over any
select militias that might arise, if there were a confrontation between them.
The role of the militia is to enforce the laws, beginning with the Constitution,
especially in those situations where the lawbreakers are public officials
themselves and the regular processes of law enforcement have failed to control
official misconduct. That is precisely the situation in which we find ourselves
The quote from American Jurisprudence is another example of
Establishment Doctrine that is ignorant or defiant of constitutional principles.
People have the natural right, recognized in the First Amendment, to peaceably
assemble, subject only to the property rights of the owner of the property on
which the assembly takes place. Since they also have the right to keep and bear
arms, and since any rights which may be exercised separately may be exercised in
combination, then they have the natural right to assemble as a militia, bearing
arms, and to organize and train, provided that they do not otherwise commit any
offenses against innocent persons. States may have some authority to regulate
the operations of select militias, but not to prohibit them on the
grounds that they might commit some offense against an innocent person.
Furthermore, if a militia musters in response to a public notice, it is a true
militia, and has a special status under common and constitutional law, with the
right to ignore private property rights when necessary to conduct military
operations. Such a true militia takes on the character of a convention of
the whole of the community, and as such is superior to all governmental
authorities of that jurisdiction, with the power to replace officials and
re-organize governmental institutions, subject to ratification by a general
vote. In a republican form of government, direct democracy is not the norm, but
the people may have to resort to it temporarily if republican institutions fail
to serve them.
Citing California Penal Code Section 11460 is instructive. It is clearly
unconstitutional, even under the California Constitution. The rights to assemble
and to bear arms are unalienable natural rights, the infringement of which are
prohibited by the First and Second Amendments to the U.S. Constitution, extended
to the states by the Fourteenth Amendment. As written, it would seem to prohibit
every kind of shooting club, range, or hunting club. In fact, it is one of those
statutes never intended to be applied strictly, but at the discretion of law
enforcement officials, against people they don't like. Such intentional
selective enforcement itself makes the statute unconstitutional. To be
constitutional, a statute must be intended to be uniformly applied, and actually
applied uniformly, even if not always thoroughly.
The alleged NRA statement is obviously confused. For example, it states that
members of state guards are not part of the federal "unorganized"
militia, but under 10 USC 311, members of state guards are not recognized as
being outside the "unorganized" militia. State guards are not
mentioned in the statute. A state militia is indeed subject to state law and
officers appointed by the state government, if it is called up by the
Governor of the state, and if that call up is of the entire militia
of an area and not just of a select part of it. Similarly, the militia is
subject to local law and local officials if called up by them, provided that the
call up is of the entire militia of the locality. That authority extends only to
the duration of the emergency for which the call up was issued, and then only if
the officials are acting in accordance with constitutional law. If they are
violating their oaths of office, the militia has the duty to arrest them and
elect new officers to act in their stead until a new election can be held to
Finally, Ross implicitly assumes throughout his sidebar that the
Constitution or common law confers rights, and that people do not have a right
unless it is granted them by the Constitution or common law, the doctrine that
"everything that is not permitted is forbidden." Under our system of
government, the people have all powers of government. They may pool those
powers, and limit the zones within which they may freely exercise them, but they
give up none of them. Government has only those powers granted to it by the
people, which they may reassert whenever they determine that government has
abused those powers, especially when that abuse includes the corruption of the
courts and of elections, so that normal avenues of recourse are unavailable and
a crisis of legitimacy prevails. This is the situation in which we now find
ourselves, and it is that situation that drives the militia movement.
Ross does get one thing right. The right to keep and bear arms does not
depend on the right to assemble as a militia. It is, however, an inseparable
component of it, if the concept of the militia is properly understood, which is
apparently not the case for many of the people who should be expected to
Critique of "... necessary to the security of a free State ..."
By Jon Roland
This article is, on the whole, a good one. There are only a few small
matters that deserve comment. First, Williams mentions in the first paragraph
that "there are citizens militia groups active in every state except Hawaii
and Delaware." He apparently got that from a press release I put out in
which I mentioned that I had "received inquiries from every state except
Hawaii and Delaware" for information on organizing militias. That is old
news. Since then I have found militias in both of those states, but there are
still two states in which I have not had a reliable report of a militia being
activated: New Jersey and Rhode Island. I would appreciate being put in touch
with any militias that have formed or may form in those states, as well as in
other states on which I have reports but have not yet established contact.
Actually, there is one single issue that has triggered this nationwide
militia movement. It is the increasing violation of the U.S. Constitution and
constitutional laws by federal and state officials. Activists may differ in the
violations with which they are most concerned, but most of their concerns
revolve around violations of some kind.
The sinking feeling that many activists have is not that federal judges are
answerable to "no one", but that they are answerable to criminal
special interests and corrupt officials, and not to the Constitution or to
It should always be made clear that statutes, such as those of Oregon,
California, and Idaho, are not laws. To be a law, a statute must be
constitutional. Those statutes are not constitutional, and are therefore null
and void from their inception. Citizens have the right and duty to ignore or
resist such statutes, regardless of personal consequences.
Although it is doing some useful work, the United States Field
Forces/National Militia is a select militia, a private association, not a true
militia. Neither is the Texas Light Infantry, although they play a valuable role
in helping to train county militia units in Texas. And the Texas Constitutional
Militia, a unit of which I first activated in Bexar County on April 19, 1994, is
not comprised of just those persons who are active in it. The term is only
properly applied to the entire population of Texas, and only those units which
meet in response to public notices can properly be called units of the TCM.
Without public notices, those meeting can only properly be called "militia
activist groups", perhaps playing an important leadership role, but not
themselves the militia for their county or locality.
Finally, although Steve Brown deserves credit for serving as the commander
of Unit 1 of the Bexar County Militia (there is at least one other unit), he may
not have the resources to answer a flood of inquiries from all over the country
about how to activate a local militia. Such inquiries might better be directed
to the Texas Militia Correspondence Committee, 6900 San Pedro #147-230, San
Antonio, TX 78216, 210/224-2868. We have an 80+ page package of materials which
many activists say they have found useful, including some materials customized
for each state and county, and we can put persons in touch with any local
militia units in their area. We are soliciting additional materials to be
included in this package, and welcome contributions which may be useful to