Apparently Oklahoma is considering it, and some in the media are freaking out. I have to agree with Professor Reynolds that this is well within the American Tradition. Here’s an interesting thing to think about. Suppose the State of Oklahoma wanted to equip its state militia with M16s and M4s? It’s hard to see how this would be illegal, since 922(o) specifically exempts anyone possessing a machine gun under the authority of a State. It would simply be a matter of the state granting the authority and issuing letters to members of the militia for the purchase of a machine gun.
The only real issue I see with this is that Congress is given almost plenary power over state militias. The United States Code allows states to maintain defense forces, independent of federal authority during times of peace, but this is specifically at the pleasure of Congress. If a state tried to arm its militia, Congress would be empowered to stop it.
But it looks to me like Oklahoma is just considering establishing a State Defense Force. If it does so, it joins a number of other states who also have them. It’s not anything to be particularly alarmed about, because it’s not unusual.
By and large, the state-organized militia concept was pushed and pushed hard by gun control supporters.
Now, I suspect, those same people will come out against the development of state-organized militias.
Count on it.
The militia purpose of the second amendment (which is clearly among the purposes) will have to be developed over time. And we can count on much wailing and nashing of teeth during the process.
Many states already have SDFs. In Ohio, it is a volunteer force that is a part of the state National Guard.
Virginia’s defense force dates back to 1607.
Here’s their web site.
http://www.vdf.virginia.gov/
I don’t think state militias (organized or not) exist at the pleasure of the Congress: Congress has the authority to call forth the militia, and once it’s federalized to control it.
Of course, Congress can decide to not allow a state militia to use any federal property – and even when a State gets federal property transfered to it, the feds can (usually) reclaim it.
It’s powers are more extensive than that:
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 the officers, and the authority of training the militia according to the discipline prescribed by Congress;
The states have the power to appoint officers and to train the militia according to Congress’ prescription. But all other powers are subject to Congressional control. Therefore Congress could prevent the states from arming a militia, or preventing the states from forming a militia at all if it wanted.
Larry Tribe wrote a law review article on this a while ago
I think there are something like 22 SDF’s. We have one in AK.
Honestly I think they make some sense. The whole war in Iraq showed that your national guard can be deployed at inopportune times, and when they get back a lot of their equipment is left behind.
“Therefore Congress could prevent the states from arming a militia, or preventing the states from forming a militia at all if it wanted.”
Does the Tribe article explore how that would seem to validate many of the Founders’ fears of toothless States and a centralized standing army?
It does, because that power was precisely their fear. The federalist just chose to allay that with a general guarantee of a right to bear arms.
Forgive me for coming so late to this tabe (demands of my job).
Sebastian, the Tribe article was outstanding!! I learned so much! What an invincible argument for an individual right to arms! Thank you!!!
I noticed in the article only a single passing reference to Art. 1, Second. 10, para. 4 of the Constitution, which authorizes the several States to employ their own standing army (“Troops”) and engage in war only in an emergency.
In my view, this is why our individual right to bear arms can never be regulated by the central government, and hence the 2A, which guarantees a pool of armed citizens from which each State can develop its own defense force.
Richard Henry Lee spoke distinctively of the general militia of the 2A, verses the select Militia (note capital M) of Article 1, sect. 8. The first is akin to Prof. Tribe’s “State Defense Force(SDF)”, today authorized by 32 U.S.C. 109(c); the latter would relate to today’s National Guard. The Guard (or select Militia) is ultimately a national force that could not be counted on to secure State freedom from Federal tyranny. But the general militia, or SDF, owes its allegiance only to its respective State’s Constitution and serves as a palladium of State sovereingty and individal liberty from national usurpation as well as general protection from Art. 1, sec. 10 exigencies. Such forces were actually used by Oregon and other west coast States against Japanese threats during WWII according to the NRA’s “First Freedom” magazine.
I should love to see more scholarly expositions on Art. 1, Sec. 10, and 32 U.S.C. 109(c) general militia laws and purposes.
Again, thanks for the Tribe article. What a treat!
Arnie