MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Saved by the Militia

My National Review Online Column After 9/11: In praise of the "unorganized" militia

On the tenth anniversary of 9/11, I posted this on the Volokh Conspiracy:

I am in New York, staying at a hotel in Times Square. On the train to the City, dogs swept the train in Philly, and another K-9 team boarded in Newark to ride to Penn Station. Penn Station has a detachment of national guard with automatic weapons. Security here in Time Square is intense. All cars approaching the square are given a police lookover at check points. Trucks are given especially close attention. My guess is that, if there were any bad guys heading towards these targets, they turned tail. They are fearless only when attacking unarmed and defenseless people. But the police and military who are guarding us here tonight, for which I am grateful, cannot be everywhere at all times.

With this in mind, I thought it would be appropriate to mark this day with one of my earliest op-eds on National Review Online — before I joined the Conspiracy — that I published on 9/18/2001:

Saved by the Militia: Arming an Army Against Terrorism.

By Randy E. Barnett
September 18, 2001 11:30 a.m.

A well-regulated militia being essential to the security of a free state. . . ." The next time someone tells you that the militia referred to in the Second Amendment has been "superceded" by the National Guard, ask them who it was that prevented United Airlines Flight 93 from reaching its target. The National Guard? The regular Army? The D.C. Police Department? None of these had a presence on Flight 93 because, in a free society, professional law-enforcement and military personnel cannot be everywhere. Terrorists and criminals are well aware of this — indeed, they count on it. Who is everywhere? The people the Founders referred to as the "general militia." Cell-phone calls from the plane have now revealed that it was members of the general militia, not organized law enforcement, who successfully prevented Flight 93 from reaching its intended target at the cost of their own lives.

The characterization of these heroes as members of the militia is not just the opinion of one law professor. It is clearly stated in Federal statutes. Perhaps you will not believe me unless I quote Section 311 of US Code Title 10, entitled, "Militia: composition and classes" in its entirety (with emphases added):

"(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."

This is not to score political points at a moment of great tragedy, though had the murderers on these four airplanes been armed with guns rather than knives, reminders of this fact would never end. Rather, that it was militia members who saved whatever was the terrorists' target — whether the White House or the Capitol — at the cost of their lives points in the direction of practical steps — in some cases the only practical steps — to reduce the damage cause by any future attacks.

An excellent beginning was provided by Dave Kopel and David Petteys in their NRO column "Making the Air Safe for Terror." Whether or not their specific recommendations are correct, they are too important to be ignored and they are not the only persons to reach similar conclusions about the need for effective self-defense. Refusing to discuss what measures really worked, what really failed, and what is likely to really work in future attacks — on airplanes and in other public spaces — for reasons of political correctness would be unconscionable. And we need to place this discussion in its larger constitutional context.

Asking all of us if we packed our own bags did not stop this attack. X-rays of all carry-on baggage did not stop this attack (though it may well have confined the attackers to using knives). And preventing us from using e-tickets or checking our bags at the street (for how long?) would neither have stopped this nor any future attack. All these new "security" proposals will merely inconvenience millions of citizens driving them away from air travel and seriously harming our economy and our freedom. As others have noted, it would be a victory for these murderers rather than an effective way to stop them in the future. A way around them will always be open to determined mass murderers. More importantly, none bear any relation to the attack that actually occurred on September 11th.

Ask yourself every time you hear a proposal for increased "security": Would have in any way have averted the disaster that actually happened? Will it avert a future suicide attack on the public by other new and different means? Any realistic response to what happened and is likely to happen in the future must acknowledge that, when the next moment of truth arrives in whatever form, calling 911 will not work. Training our youth to be helpless in the face of an attack, avoiding violence at all costs will not work. There will always be foreign and domestic wolves to prey on the sheep we raise. And the next attack is unlikely to take the same form as the ones we just experienced. We must adopt measures that promise some relief in circumstances we cannot now imagine.

Here is the cold hard fact of the matter that will be evaded and denied but which must never be forgotten in these discussions: Often — whether on an airplane, subway, cruise ship, or in a high school — only self defense by the "unorganized militia" will be available when domestic or foreign terrorists chose their next moment of murder. And here is the public-policy implication of this fact: It would be better if the militia were more prepared to act when it is needed.

If the general militia is now "unorganized" and neutered — if it is not well-regulated — whose fault is it? Article I of the Constitution gives Congress full power "to provide for organizing, arming, and disciplining the Militia." The Second Amendment was included in the Bill of Rights in large part because many feared that Congress would neglect the militia (as it has) and, because Congress could not be forced by any constitutional provision to preserve the militia, the only practical means of ensuring its continued existed was to protect the right of individual militia members to keep and bear their own private arms. Nevertheless, it remains the responsibility of Congress to see to it that the general militia is "well-regulated."

A well-regulated militia does not require a draft or any compulsory training. Nor, as Alexander Hamilton recognized, need training be universal. "To attempt such a thing which would abridge the mass of labor and industry to so considerable extent, would be unwise," he wrote in Federalist 29, "and the experiment, if made, could not succeed, because it would not long be endured." But Congress has the constitutional power to create training programs in effective self-defense including training in small arms — marksmanship, tactics, and gun safety — for any American citizen who volunteers. Any guess how many millions would take weapons training at government expense or even for a modest fee if generally offered?

Rather than provide for training and encouraging persons to be able to defend themselves — and to exercise their training responsibly — powerful lobbying groups have and will continue to advocate passivity and disarmament. The vociferous anti-self-defense, anti-gun crusaders of the past decades will not give up now. Instead they will shift our focus to restrictions on American liberties that will be ineffective against future attacks. Friday on Fox, Democratic Minority Leader Dick Gephart was asked whether additional means we have previously eschewed should be employed to capture and combat foreign terrorists. His reply was appalling. Now was the time, he replied, to consider adopting a national identity card and that we would have to consider how much information such "smart" cards would contain.

Rather than make war on the American people and their liberties, however, Congress should be looking for ways to empower them to protect themselves when warranted. The Founders knew — and put in the form of a written guarantee — the proposition that the individual right to keep and bear arms was the principal means of preserving a militia that was "essential," in a free state, to provide personal and collective self-defense against criminals of all stripes, both domestic and foreign.

A renewed commitment to a well-regulated militia would not be a panacea for crime and terrorism, but neither will any other course of action now being recommended or adopted. We have long been told that, in a modern world, the militia is obsolete. Put aside the fact that the importance of the militia to a "the security of a free state" is hardwired into the text of the Constitution. The events of this week have shown that the militia is far from obsolete in a world where war is waged by cells as well as states. It is long past time we heeded the words of the Founders and end the systematic effort to disarm Americans. Now is also the time to consider what it would take in practical terms to well-regulate the now-unorganized militia, so no criminal will feel completely secure when confronting one or more of its members.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • apedad||

    Any guess how many millions would take weapons training at government expense or even for a modest fee if generally offered?

    Zero millions!

  • Scarecrow Repair & Chippering||

    I'd show up and even pay if it were anonymous.

  • apedad||

    How can you be part of a "well-regulated militia" and yet remain anonymous?

  • Brett Bellmore||

    Since "well regulated" meant well trained and equipped, it's quite easy.

  • apedad||

    Yup, which means logistics and communications and command and control.

    No place for anonymity!

  • apedad||

    I forgot vetting too.

    Can't have Mexicans, Muslims, and gays in our "well-regulated militia" now, amiright!

  • VinniUSMC||

    Keep pretending "Well-regulated" means something other than what it means. Y'all are good are redefining words to suit your needs.

    How many millions would take free weapons training? Several millions. And that's just those who join the military.

  • regexp||

    How many millions would take free weapons training? Several millions. And that's just those who join the military.

    Knowing how to operate your boom boom stick and being able to participate in proper incident response scenarios are two very different things. The latter requires knowledge, training, and maturity. Which most 2nd amendment extremists do not possess.

  • CE||

    Knowing how to operate your boom boom stick and being able to participate in proper incident response scenarios are two very different things. The latter requires knowledge, training, and maturity. Which most 2nd amendment extremists do not possess.

    The record of US municipal police forces isn't exactly stellar in that regard either.

  • PeteRR||

    "The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it."

    http://www.constitution.org/cons/wellregu.htm

  • Joe_JP||

    The word "regulated" is a form of "regulation" and "regulate" which is used elsewhere in the Constitution. The 2A dealt with existing militia, which were regulated by the state, including led by the governors of said states, in various ways. A basic example being requiring people to show up for training/drill on a regular basis.

  • FlameCCT||

    There are federal regulations, as provided in the article, that shows how the militia is well-regulated. Including both the organized militia (National Guard & Naval Militia) and unorganized militia (males age 17 to 45 which now includes females per later Constitutional Amendments).

  • Absaroka||

    Well, the CERT folks are claiming 600000 graduates. That rounds up to 1.0 millions :-).

    And it's 600k better than zero.

  • Jerry B.||

    20 million people target shoot in the U.S. on their own dime. I bet they'd be glad to do more practice on the governments dollar.

    Target Shooting In America

  • Harvey Mosley||

    I'm not millions but I'm not very unique either. I would certainly take advantage of free and almost free training.

  • Scarecrow Repair & Chippering||

    Thank you. Flight 93 is too easily forgotten, and too easily slandered as an aberration by statists who abhor individual responsibility.

  • Rev. Arthur L. Kirkland||

    Is this an argument for enabling citizens to be armed at all times and places, in particular to enable "shoot 'em up" exercises by the unorganized militia in pressurized aluminum tubes at 40,000 feet?

    If not, what is it?

  • PeteRR||

    Handgun fire can't bring down an airplane by piercing the skin or windows.

  • Rev. Arthur L. Kirkland||

    That is quite the unqualified declaration. A bullet couldn't compromise a window with catastrophic consequence? Couldn't strike a hydraulic line or important wiring?

  • PeteRR||

    I didn't bother to qualify it because internal gunfire has never brought down an airplane that didn't kill the pilots. I couldn't find an incident that qualifies. Even if your theoretical bullet blew the window out instead of putting a small hole in it, it wouldn't take down the airplane.

  • Bob from Ohio||

    I will break my rule against responding to AK to point out that today of all days shows his ignorance.

    If some reliable passengers had a hand gun 17 years ago, how much death and horror might have been avoided?

  • Rev. Arthur L. Kirkland||

    Do you figure the hijackers would have carried boxcutters in that context? I figure they'd have had firearms, explosives, and more manpower.

    By all means, enjoy your John Wayne-Roy Rogers fantasies. Yippee ki yay, etc.

  • Grifhunter||

    Yippie ki yay? Are you 10 years old. We have Air Marshals and civilan pilots carrying handguns on some commercial airplanes. A gun on a plane does not equal crash due to perforation.

  • Joe_JP||

    Air marshals? You mean official government agents?

    The issue here is not that but the "militia" made up of ordinary citizens.

    The reference there was to "Die Hard," though since the character is a police officer, it might not be totally apt.

  • Grifhunter||

    My point was a handgun on a plane for self defense is not thought to be contraindicated due to the potential of a bullet perforating cabin walls, as evidenced by the actual carrying of loaded handguns on planes (government agent or not- commercial pilots are civilians).

  • FlameCCT||

    A bullet might compromise a window or even penetrate through the entire fuselage however the worst that would happen would be a rapid decompression. Which would then release the oxygen masks so people can breathe. I would note that every system on an aircraft has redundant systems located in different areas of the fuselage. The only way to compromise the flight systems would require an explosive device that takes out a major component of the aircraft itself. Hell, years ago, an entire overhead section of an aircraft was ripped off and the aircraft still flew and landed. IIRC that was a Hawaiian airline.

  • Brett Bellmore||

    People used to fly with their hunting rifles as carry on baggage, way back when. I kind of miss the country and world where that sort of thing was possible/permitted. We've lost so much liberty in so many ways since my childhood.

  • ||

    Which incidentally, coincides with the 1965 Immigration and Nationality Act.

  • Auditpop||

    Many years ago when I shot trap competitively, I would take my shotgun on the plane with me. It would be stored in the cockpit with the pilots. Not that kind of world anymore.

  • Joe_dallas||

    Just an example of the purpose of 2A - Stevens even cited numerous historical writings regarding the "common defence" in Heller.

    Stevens just took the absurd position that the right to a common defence only applied when the government gave the citizens permission to provide for their common defence.

  • CE||

    You could train people in some type of martial arts with sticks, then hand everyone a baseball bat when they board a plane.

  • Brett Bellmore||

    Didn't even actually need that, as Flight 93 demonstrated: As soon as people knew that a hijacking didn't mean an unplanned vacation in some exotic destination, but instead being used as an innocent hostage on the way to a kamikaze attack, the 9-11 terrorist attack model became infeasible; Anybody who says "This is a hijacking!" today goes down under a human wave attack.

    The only reason it worked in the first place was that people had spent decades being trained out of their natural urge to fight back.

    Almost everything we labor under in the way of airline security today is just "security theater", designed to make us think something is being done. I flew to SF a few days after 9-11. There was a National guard member positioned at the entrance to the Bay bridge, with a rifle.

    What was he there to do? Shoot out the tires if a van went by with an "I (heart) Osama" bumper sticker?

  • Joe_dallas||

    repeating my prior comment for RAK benefit - Just an example of the purpose of 2A - Stevens even cited numerous historical writings regarding the "common defence" in Heller.

    Stevens just took the absurd position that the right to a common defence only applied when the government gave the citizens permission to provide for their common defence.

  • Ellis Wyatt||

    Steven is correct.
    And did not write the opinion.
    Are you distorting what "common" defense means, like so many others?

  • dwb68||

    word. There are 17 million law abiding CCW holders in the USA... and growing. I'd bet most would sign up for extra training if it were offered.

  • apedad||

    The NRA offers plenty of training already.

  • Jerry B.||

    Yet you don't think anyone would turn up for training paid for by the government? Maybe you should quit disputing your own arguments.

  • bernard11||

    How many non-law abiding?

  • PeteRR||

    1/6th the rate of that of police officers.

  • PeteRR||

    1/6th the rate of that of police officers.

  • Michael Cook||

    Remember that there are a lot of us combat veterans and retired law enforcement types walking around who have lots of training and experience, but no longer are part of any organized group. There are two types of challenges (A) short term, in which extreme disaster has caused the disappearance of normal authorities and agencies, and (B) long term, in which there is something else going on that requires civilians to mobilize in small groups and establish bonds of comradeship and trust in what may be times of legal and communications confusion, to include extreme national suspicion and distrust of any report about anything, such as might be expected during a powerful cyber attack and disinformation campaign by a foreign government.

  • Krayt||

    But the army is so strong you should just accept your fate as captured peasantry and not even try, and have your guns taken away because crooks in giant cities -- Paraphrased from Lisa Simpson

  • mad_kalak||

    It's good to read this blog post, right after a (semi) hit piece on the Civilian Marksmanship Program comes out in Bloomberg.

  • Grifhunter||

    Look up the Civilian Marksmanship Program. Link won't post.

  • John Galt Jr||

    Add spaces. No portion longer than 50 characters. It's easier to see if each break is 2-3 spaces wide
    Readers can then COPY, manually delete your added spaces and use the url (site address)

    This page would be (to illustrate, portions can be 49 chars)

    https//reason.com / volokh/2018/09/11/ saved-by-the-militia

    If very long, can have multiple additional portions
    First break AFTER the ".com" " .org" ".net" or whatever.
    That's the easiest way.

  • Joe_JP||

    A small minority doesn't support "provide for training and encouraging persons to be able to defend themselves — and to exercise their training responsibly."

    The overall appropriate nature of a range of gun regulations aside, that is not the actual general debate we are having these days. The ability to disallow certain types of guns might be bad or not bad but still leaves open for training and so forth. In fact, many of the regulations are geared toward "responsibility." But, at times, some around here appeal to more general libertarian principles than such prudential concerns.

    Not allowing guns in various locations (or at best storing them in places where people on the planes would have had a hard time to obtain them during the attacks, likely with the bullets out of them to boot) is a time old practice. Being prepped for air hijacking is not likely something even many gun rights supporters were big on. The best way to (as far as it's possible) to stop or temper the reach of hijacking is not regular passengers committing self-defense acts.

    Such a situation is different than normal self-defense training in various ways. It's fine really to support that sort of thing though the level of government regulation and duty (including mandatory militia service) required might upset certain conservatives and libertarians.

  • Gasman||

    "My guess is that, if there were any bad guys heading towards these targets, they turned tail. They are fearless only when attacking unarmed and defenseless people."

    You marvel at the effectiveness of government sponsored security theater to protect us, and leave the 'bag guys' quaking in their boots. Were there really no soft targets 8 years ago when you wrote that? As there have been no significant terrorist events within our borders for 18 years, the more likely reason is that no one is really trying all that hard. There are a lot of big fat juicy targets out there.
    Security is an endlessly expensive task, for which security theater is better suited. Harden one target, and they just move on to the next softest target.

  • John Galt Jr||

    The next time someone tells you that the militia referred to in the Second Amendment has been "superceded" by the National Guard,

    (yawn)

    in a free society, professional law-enforcement and military personnel cannot be everywhere.

    STILL superceded!

    The people the Founders referred to as the "general militia."

    Not in the Constitution!
    What the Founders believed is IRRELEVANT. What did they INTEND, within the Constitution?
    duh

    It ain't just progressives babbling for a "Living Constitution"

    I stand with Jefferson. Replace the entire Constitution -- if so decided by a Constitutional Convention ... which should put everything on the table EVERY 20 YEARS

    Crazy-ass libertarian that he was
    The earth belongs to the living.
    No generation can commit any later generation to a constitution, without the consent of the governed.
    Nor to any law/ Not to any debt.
    Else we be governed by the consent of the dead ... by might not by right.

    Constitutional fundamentalism is as authoritarian as Christian fundamentalism, and Muslim Fundamentalism
    NONE can be defended by any lover of liberty.

    I have Jefferson's letter to Madison. Barnett has nothing but non sequiturs

  • jdgalt1||

    Ask yourself every time you hear a proposal for increased "security": Would have in any way have averted the disaster that actually happened?

    Mr. Barnett, this is the exact argument I made to you years ago for the abolition of the TSA. You were unable to refute it then. Should we now infer that you have changed your mind?

  • Ellis Wyatt||

    non sequitur

  • Martinned||

    Wait, so because everyone is a member of the "general militia", the militia (and, by extension, the 2nd amendment) gets credit for all brave things done by anyone?

  • Ellis Wyatt||

    And all the murders!.
    But you get the general drift of their zany bullshit.

  • Leahfy||

    Only males between 17-45 and National Guard members, not everyone.

    I would have liked to say that we don't know for sure that the only people on those flights who took part in the "militia" were male and between those ages.

  • Ellis Wyatt||

    Umm, age is irrelevant, if they're not in the Guard, they are not militia.
    Nice try. But a fail. Yuge.

  • Absaroka||

    If you're talking about males, congress disagrees according to 10 USC 246, which reads:

    "(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."

  • Jon_Roland||

    Defense activity (the meaning of the word "militia") is not limited to the use of firearms. A well-trained militiaman uses any tools that are at hand, including just his hands.

    See http://constitution.org/cs_defen.htm

  • Jon_Roland||

    Defense activity (the meaning of the word "militia") is not limited to the use of firearms. A well-trained militiaman uses any tools that are at hand, including just his hands.

    See http://constitution.org/cs_defen.htm

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online