Wednesday, January 16, 2013

Obama's plan impacts the States adversely

Given the President’s and the liberal gun control lobbies’ intent to ban "assault" weapons and "high capacity" magazines, the question now becomes, what is the impact of these initiatives upon the ability of the unorganized militia and the 32 USC § 109(c) State Defense Forces to respond to a call up by their governor to State Active Duty in an emergency?

The Second Amendment states:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The militia of each State is comprised of two distinct components. One is the organized militia. Each State’s organized militia under State law is comprised of two components: the National Guard and the 32 USC § 109(c) State Defense Force of a State. There may also be a Naval Militia, which is actually part of the Navy, but it plays no role in terms of the unorganized militia. The second component of the militia of each State is the unorganized militia, which is comprised of the citizens of each State who are not members of the organized militia or the U.S. military. The officers to the organized militia are appointed by their respective governor. The National Guard, the federal militia, is authorized pursuant to Article 1 § 8:
". . . To provide for the 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 State Defense Forces are authorized by Congress pursuant to 32 USC § 109(c): "In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces."

Twenty three States, including the State of Alaska, have organized a State Defense Force (SDF) pursuant to 32 USC § 109(c). The SDFs and their contribution to the defense of their State and the maintenance of law and order in an emergency are virtually unknown to the American public. SDFs are comprised largely of former military, former and serving police officers, professionals, trades people, and people from all walks of life who volunteer their time, money to serve their State. SDF volunteer soldiers are required to provide their uniforms, firearms, ammunition, training, and transport at no cost to the State until called up for State Active Duty. At which time, they are paid according to State law. In Alaska, the Alaska State Defense Force (ASDF) volunteer soldier is paid the equivalent of a first year Alaska State Trooper, or approximately $187 per day. ASDF volunteer soldiers have no benefits except for Workman’s Compensation Insurance. (Alaska statutory authority: AS 26.05.010, AS 26.05.030, AS 26.05.070, AS 26.05.100, AS 26.05.110, AS 26.05.260)

The other component of the militia is the unorganized militia. Alaska law defines the unorganized militia as: " (b)(2) the unorganized militia, consisting of all qualified persons available for service but not serving in the organized militia." The unorganized militia is comprised of every able bodied man and woman over 17 years of age who are able to perform militia duty. Each State has statutes that govern the composition of and establish the qualifications for the organized and unorganized militia. The federal government sets the standards for the National Guard, as the National Guard has a federal mission and may be commanded by federally appointed regular military officers. (Alaska statutory authority: AS 26.05.010)

Article 1 § 8 of the Constitution of the United States demonstrates that the Congress must provide the money to organize, provide the arms, equipment, and discipline for the National Guard. The States are to provide for training and to appoint the officers thereof. However, in reality, the federal government provides the money to train the federal National Guard. While the State governor may have control of the State’s National Guard when not called to federal active duty, the National Guard of any State is always at the beck and call of the President who is the Commander-in-Chief of the military. Peprich v. U.S. DOD confirms the President’s authority to use the National Guard at any time, including calling up the National Guard for deploy overseas for training: "Article I’s plain language . . . establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a state governor or the declaration of a national emergency . . . The unchallenged validity of the duel enlistment system means that Guard members lose their state status when called to active federal duty, and, if that duty is a training mission, the training is performed by the Army. During such periods, the second militia clause is no longer applicable . . . This interpretation merely recognizes the supremacy of federal power in the military affairs area, and does not significantly affect either the State’s basic training responsibility or its ability to rely on its own Guard in state emergency situations . . . The consent of a Governor . . . may not be withheld . . . with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty." (Perpich v. DOD, 496 U.S. (1990), 335, 337; Dukakis v. U.S. DOD, 686 F. Supp., 30 (1988))

A State Defense Force cannot be called to federal duty, and exists solely for the use of the State, it falls to the State to provide for the State Defense Forces and/or the unorganized militia. Alaska’s budget for the Alaska State Defense Force has historically been about $26,000 per year to pay for a part-time administrative technician and administrative costs. However, Alaska and the other States with SDFs, do not provide arms for either the SDFs or the unorganized militia. The SDF volunteers  provide their own equipment, arms, ammunition, training and transportation. The members of the unorganized militia will also be required to provide their own gear, weapons and ammunition.

The Revolutionary War corollary for the SDF and the unorganized militia is the "Minutemen" of the Great American Revolution who, upon notification, grabbed their gear, firearms, and ammunition and immediately headed for the designated place of assembly. For those states without an organized SDF, the "Minutemen" role falls to the unorganized militia.

In Alaska, a call up of the unorganized militia would essentially be a mass draft into the State Defense Force. The ASDF would then have the responsibility for training the unorganized militia. ( Alaska statutory authority: AS 26.05.010, AS 26.05.100, AS 26.05.110)

The Alaska State Defense Force has historically been called to State Active Duty pursuant to AS 26.05.070, which states: "In the event of war, disaster, insurrection, rebellion, tumult, catastrophe, invasion, or riot; or if a mob or body of men act together by force with intent to commit a felony or to offer violence to persons or property, or by force and violence to break and resist the laws of the state, or the United States; or in the case of imminent danger of the occurrence of any of these events; or whenever responsible civil authorities fail to preserve law and order, or protect life and property, or the governor believes that failure is imminent, the governor may order the organized militia or any part of it, into active state service to execute the laws and to perform duties in connection with them that the governor considers proper. Whenever any portion of the militia is ordered into active service by the governor, it becomes an additional police force, retaining its separate entity and operating at all times as a military organization under military command, with power to cooperate with but not to supersede the existing civilian law enforcement officers whenever possible, for the re-establishment of law and order and for the protection of life and property. The governor may also order members of the organized militia to active state service, with their consent, for the purpose of training or for full-time duty with the office of the adjutant general."

Obviously, the intent of the Alaska Legislature in drafting AS 26.05.070 was to provide the governor with a military force capable of acting as a state police force to restore order and maintain law and order in the event of an emergency. This implies an armed force. All civilian law enforcement officers are armed. It is unreasonable to believe that the organized State militia be an unarmed military, which would severely limit its use. Former Alaska Governor Tony Knowles was alleged to have stated to the effect that "unarmed soldiers are just more victims waiting to happen," upon his authorizing the ASDF to be armed just after the attacks of 9-11.

What would be the impact upon the organized and unorganized militia were there to be a ban on semi-automatic military style rifles and semi-automatic magazine fed pistols and high capacity magazines?

Most SDF volunteers use the AR15 or some variant of the rifle in 5.56X45mm or 7.62X51mm. Other authorized weapons include the M1A, FNFAL, or HK 91 7.62X51mm rifle or other comparable military grade semi-automatic rifle chambered for 7.62mm. 30 round magazines are expected as the magazine for these rifles. The 7.62mm rifles have 20 round magazines. Where authorized, SDF volunteers provide magazine fed semi-automatic hand guns in .45 cal or 9mm. Magazines for the pistols and rifle are expected to be at least equal in capacity to those of the military or the civilian police.

During the Revolutionary War and up until the common use of the brass cased bullet, the caliber of the weapon did not matter a great deal. The commonality was the black powder that provided the charge for the weapon. Each individual in the days of muskets and black powder rifles had lead molds and were expected to provide their own cast balls or cast bullets for use in their black powder muskets or black powder rifles. They could simply melt spent lead balls taken from the battlefield or another source of lead to make into ammunition. Today, that would not be practical.

The British Brown Bess army musket had an effective range of 175 yards, but was used at about 50 paces, or 150 feet maximum from the target, for greatest effectiveness. There were many Brown Bess muskets in use by the Colonial Army against the British Army, because the of the British colonial requirement that military age males be required to maintain their own arms and ammunition for militia duty. Therefore, there is pre-colonial precedent for the Second’s militia requirement with respect to the duties and obligations under the Second Amendment. George Washington was an officer in the British Colonial Militia.

The requirement for a semi-automatic rifle and a semi-automatic pistol for the State militia coincides with the military requirements for service weapons. The M16 and M4 rifles in use with the Army and USMC are select fire weapons with both a semi-automatic and three round burst capability. Therefore, the militia being armed with a semi-automatic rifle capable of using military ammunition is a common sense requirement.

In Alaska, were the unorganized militia to be called up, it would be expected that each individual would provide their own AR15 or some variant or a semi-automatic military style rifle in 7.62mm at the very minimum.

All of these weapons and the military and police compatible magazines are readily available on the civilian market. Now, the President of the United States and the liberal gun control lobby under the guise of protecting children have threatened the availability of these weapons and the magazines necessary to their use as a militia duty weapon pursuant to the militia requirements under the Second Amendment.

It is critical that the militia aspect of the Second Amendment be fully appreciated with respect to the firearms expected as duty weapons to be supplied by the individual militia member. The reason for the requiring military style rifles in 5.56mm or 7.62mm for militia duty is a commonality of ammunition and, in the case of the AR15 and its variants, a commonality of magazines with military stocks.

Of what use would the militia be to the defense of the State and/or the United States, if the members of the SDFs and the unorganized militia showed up for duty with the myriad variety of rifles and ammunition available in today’s market? How could such a militia expect to be resupplied with ammunition from military stores, if the firearms and calibers are not standardized? Or, supplied with adequate magazines, when their rifles are not magazine fed?

The military does not stock ammunition for hunting rifles. As a result, the militia’s usefulness would end when they run out of ammunition.

The AR15 family of rifles shares the same magazines as the military’s M16/M4 family of rifles/carbines.

Under the Second Amendment, each member of the unorganized militia and the organized State Defense Forces has a duty and an obligation to maintain a weapon suitable for militia duty. Each member–every man and woman of military age in this country–has a duty to purchase and to maintain a military grade semi-automatic rifle compatible for use with ammunition from national military supplies.

If there ever is a call up of the unorganized militia, they would be expected to fall under State military command with a strong likelihood of being attached to National Guard units or being directly inducted into State Defense Force units. Therefore, commonality of weapons type and ammunition is critical to organization, training and logistics. It only makes sense that the militia be able to use the same ammunition as federal forces and have a commonality in basic weapons operation and controls.

Any rational human being with any knowledge of history, geology, astrophysics, weather, or politics should know that it is a matter of ‘when’, and not ‘if’ with respect to any call up of the unorganized militia. One’s political ideology does not relieve one’s obligations or duty under the Second Amendment.

Any ban on ‘assault’ weapons and high capacity magazines reduces the military capability of this country with respect to the potential usefulness and military effectiveness of the unorganized militia and the State Defense Forces. Such a ban would have a serious negative impact upon the States to have the internal military resources necessary for the restoration and maintenance of law and order in the event of an emergency.

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