Date: Tue, 2 May 95 00:11:52 PDT From: Keith Ingram <ingram@interaccess.

com> Subject: RE: Question: SC case regarding militias To: firearms-alert@shell.portal.com, firearms-politics@cup.hp.com, fap@world.std.com

>What was the Supreme Court case that decided that the National Guard is not the >militia? (I need the cite.)

Militia Act of 1792 That the Militia of the United States shall consist of each and every free, able bodied male citizen of the respective States, resident therein, who are or shall be of the age of eighteen years, and under the age of forty-five years (except as hereinafter excepted) who shall severally and respectively be enrolled by the captain or commanding officer of the company within whose bounds such citizen shall reside.... That every citizen so enrolled and notified shall within one Month thereafter, provide himself with a good musket or firelock of a bore not smaller than seventeen balls to the pound, a sufficient bayonet and belt, a pouch with a box therein to contain not less than twenty-four cartridges suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball, two spare flints, and a knapsack, and shall appear so armed, accoutered and provided, when called out to exercise or into service as is hereinafter directed... Per: Charles Bickford and Helen Veit, ed., Documentary History of the First Federal Congress 1789-1791, Vol. 5, (Baltimore, Johns Hopkins University Press: 1986), 1460-1461. B. The National Guard Act (1903): Excerpt

The National Guard was established in 1903 when Congress created the NG under its power to "raise and support armies". (see H.R. Report No. 141, 73d Cong., 1st Sess. at 2-5, 1933) It was done in order to create reserve MILITARY units. The NG was specifically intended to avoid status as the constitutional militia, and this distinction is recognized by 10 U.S.C. 311 (quoted below). It was not, nor was it intended to be the Militia as was recognize by the USSC in Presser and reaffirmed again in US v. Miller. "[T]he militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes -- the organized militia, to be know as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be know as the Reserve Militia." [from "An Act To promote the efficiency of the militia, and for other purposes", January 21, 1903] C. 10 U.S.C. 311 Excerpt "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

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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 commissioned officers 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." 2. Court Citations: Presser v State of Illinois [116 U.S. 252 (1886)] "It is undoubtedly true that all citizens capable of bearing arms constituted the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the General Government." [id at 265] US v Miller [307 U.S. 174 (1939)] "The signification attributed to the term "militia" appears from the debates in the Convention, the history and legislation of the colonies and states, and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense. . . And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." [id at 179]

*************************************************** * Keith Chaucer Ingram---ingram@interaccess.com * * * * "If you won't fight for your life and liberty * * how can you expect others to do it for you?" * ***************************************************

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