Saved by the Militia: Arming an Army Against Terrorism

My NRO Column After 9/11


[On 9/18/2001, I published a column commending our first victory in the global war against radical Islamic fascism. As we commemorate the horrific losses we suffered on 9/11/2001, we should also remember the victory we enjoyed that same day thanks to the "unorganized" militia of the United States. On this, the twentieth anniversary of that victory, I am reposting the version I posted in the 10th anniversary of 9/11, which was itself a sign of those times.]
On this tenth anniversary of 9/11, I am in New York, staying at a hotel in Time 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 The next time someone tells you that the militia referred to in the Second Amendment has been "superceded" by the National Guard, ask them who it was that prevented United Airlines Flight 93 from reaching its target.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.

NEXT: 9/11/2001 in Staten Island, New York

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  1. I understand that this is a joke and a cruel farce of a post, but it seems inappropriate to present something like this on the anniversary of 9/11.

    1. I understand that you’re a morally wretched pile of human garbage.

      But do you really need to be so aggressive about putting it on display?

      1. I guess you skipped over this section of this Forum

        Editor’s Note: We invite comments and request that they be civil and on-topic.

        1. Pot->Kettle.

  2. It’s one of the great shames of the Bush Admin, that their response to passengers knocking down the door to the cockpit and stopping the terrorists, was to make the cockpit doors stronger, so people couldn’t do that ever again.

    Because for the “expert” class, nothing is worse than the normal people effectively protecting themselves and us

    1. With respect to SUICIDE bombers and SUICIDAL mass shooters—guns don’t protect you because they want to die! That’s why Marines with guns were targeted by a suicide bomber in Kabul. So on 9/12/01 a big thing we got wrong is that Allah doesn’t make a terrorist a Bond level super villain…but Allah does make people suicidal and so the terrorist can use being suicidal to their advantage.

      1. “Guns don’t protect you”? Not necessarily true. “Ma Deuce”, in the hands of a soldier or Marine that knows how to use it, has been proven to be an effective counter measure since WW II. Worked at a distance against Kamakazes and still works against car bombs. Think, “Pink Mist” in a Toyota Hilux.

      2. Wrong

        Guns protect you, because they enable you to kill the mass shooter before he shoots anyone else

        And if you shoot the suicide bomber before he gets close enough to you, again, they protect you.

        Whereas “sticking your head up your backside while hoping the bad men go away”, which appears to be your plan, has a long history of getting people killed

    2. It’s today’s Greg J-is-a-very-stupid-person post. Perhaps he didn’t notice that the “passengers knocking down the door to the cockpit and stopping the terrorists” led to the deaths of all of those passengers. And that the expert class, no scare quotes needed, would intelligently have thought that this did not constitute people “effectively protecting themselves.” But Greg J isn’t an expert, so he didn’t think of that.

      1. Sorry, but just to clarify: the problem isn’t that Greg J isn’t an expert — though he isn’t — but that like all Trumpkins, he decries the very idea of expertise. He puts the concept in scare quotes.

        1. Because I’m not an idiot, I understand that the vast majority of “experts” in the US are worthless piles of garbage who having nothing of value other than a credential.

          And I also understand that none of the rest of them are “disinterested”. Which means that any time there’s a conflict between what they should say, and what they need to say to increase their or their field’s power, prestige, and / or wealth, there’s a high likelihood they’re going to do the latter.

          Look up “principle agent problem”, then write off as a moron anyone who tells you to “trust the experts”.

      2. “Perhaps he didn’t notice that the “passengers knocking down the door to the cockpit and stopping the terrorists” led to the deaths of all of those passengers”

        Perhaps David didn’t notice that the passengers on Flight 93 stopped their plane from killing anyone else.

        Which made them far and away the most effective Americans on 9/11.

        Would they have like to live, too? I’m sure they would have.

        But stopping the terrorists from murdering thousands of other people while also them was a far better outcome than just sitting there and dying in a ball of fire along with even more victims

        Which is something I would expect to be understood by anyone who has even a shred of human decency

  3. Does anyone want to take the 9/10/01 perspective and defend the policy of allowing hijackers into cockpits?? I guarantee you will lose because it is indefensible even on 9/10/01.

    1. Securing cockpit doors was the only sensible security precaution which followed 9/11. So yeah, I agree, that was a good change.

      Sadly, the rest of the changes were sham security theatre.

      1. The policy was to allow hijackers into cockpits—what good could come from a hijacker in the cockpit? So all a hijacker really needs to make sure the pilots are complying with demands is a compass. And in September 2001 cell phones were ubiquitous so a hijacker has no need for the pilot’s radio. So a hijacker’s leverage is hostages and pilots are generally military trained males which are the worst hostages…but in a commercial airliner they are busy so right there you are making your hostage situation better by keeping a door between you and the busy military trained males.

        So a RATIONAL hijacker should not want access to the cockpit…but an irrational hijacker would want to be in the cockpit…but you should never allow any irrational person in the cockpit because if they are suicidal they could take the entire plane down.

        1. “So a RATIONAL hijacker should not want access to the cockpit”

          Maybe that works if the intent is to ransom the passengers back.

          It doesn’t work if the intent is to turn the plane into a suicide bomb.

          If you make it impossible to penetrate the cockpit from the passenger cabin, then the suicide bomber type hijackers just switch to infiltrating the pilot corps.

  4. On this day of all days one should respect the deep loss experienced by the thousands and thousands of New Yorkers who lost loved ones on 9/11 or saw the horrible sight of the WTC collapsing.

    Overwhelmingly they are opposed to the sentiments expressed in this post. You could have waited one more day.

    1. Did you ask them all?

      For a different perspective read the Amicus brief of The Bronx Defenders, the Brooklyn Defender Services, and the Black Attorneys of Legal Aid:

      “Each year, we represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms,” they write. “For our clients, New York’s licensing regime renders the Second Amendment a legal fiction. Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities. That remains the effect of its enforcement by police and prosecutors today.”

        1. Neither are your comments.

      1. Everyone knows those regulations are unconstitutional and most simply ignore them…just keep the gun in your house and you won’t be prosecuted. Giuliani was able to reduce violent crime by prosecuting people that carried those guns outside the home.

  5. ” It is long past time we heeded the words of the Founders and end the systematic effort to disarm Americans. ”

    Unless Prof. Barnett is promoting a ‘shoot-em-up’ approach to in-cabin activity mid-flight, it is difficult to apprehend a sensible point here.

  6. Professor Barnett, have you ever asked yourself how come the active duty military keeps all its guns under lock and key, except when they are in use under stringent military discipline? Part of the answer is that the professional military have practical experience with guns.

    You write like someone with little or no practical experience with guns. They do not work magically. Guns are not morally enlightened, and they do not deliver moral advantages to those who use them.

    Have you ever seen anyone killed by a gun? Have you ever seen an animal killed by a gun? Have you ever carried a gun with the intent to kill a person or an animal?

    I have known quite a few people who can answer yes to those questions. None of them talk like you do about guns. Perhaps that is because of experience. They seem to lack your insouciance about guns.

    1. “have you ever asked yourself how come the active duty military keeps all its guns under lock and key”

      Let’s think about that. Imagine two use cases for guns.

      Case 1 – you don’t plan to use the gun without a lot of warning. Examples:
      -an infantry platoon that expects to use its guns (and other equipment) only after a long process of warning orders and global travel.
      -a hunter that doesn’t plan to use a rifle until the next deer season

      It’s wise to lock those up.

      Case 2 – you might use the gun in a little-to-no warning emergency. Examples:

      -you are one of the Air Force types who patrols ICBM sites
      -you’re a cop who is out and about and might face an emergency that doesn’t allow time to go back to the stationhouse armory and fetch a gun.
      -you’re a civilian who is out and about and might face an emergency that doesn’t allow time to go back home to the gun safe

      For Case 2 uses, sensible people don’t leave the guns locked up at home. Any more than you’d keep your fire extinguisher or first aid kit locked up.

    2. “Professor Barnett, have you ever asked yourself how come the active duty military keeps all its guns under lock and key, except when they are in use under stringent military discipline?”

      Hmm, maybe because the military brass are a bunch of losers who don’t trust their own troops?

      Now, you want to explain why you’re stupid enough to trust the “judgement” of the people who lost Afghanistan for us?

      1. I’m open to correction if we have any WWII vets around, but my sense is that the practice of generally storing weapons in arms rooms at U.S. bases has generally been the practice since the days of Marshall, Patton, and Eisenhower, if not before.

  7. Good people ought to be armed as they will, with wits and Guns and THE TRUTH.

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

    A lot. The volunteer Federal Flight Deck Officer program created by Congress after 9/11 is now the largest federal law enforcement officer force.

  9. Our army and special services are a reliable counteraction to all terrorists and enemies. We need to respect these guys and invest more in our defense capabilities so that more tragedies like 9/11 don’t happen at all. I read a lot about terrorism and 9/11 and found at a lot of interesting information about terrorism, its causes and impact on our lives. This resource helped me a lot in writing my college work, so I decided to share it with you. For students it is a cool tool, for everyone else a cool information resource.

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