Need a new Militia Act

[Jon_Roland]

Re: Militia as defense activity

In response to requests to provide more examples of the same word used both to refer to an activity and those engaged in it, here are a few:

Activity, those who do it | Verb
service | serve
assembly | assemble
movement | move
wedding | wed
viking | vyk
congregation | congregate
aggregation | aggregate
delegation | delegate
march | march
ministry | minister (also one who does it)
court | court (ask for something)
militia | defend
hunt | hunt
police | police (as in "clean up")
hospital | treat
university | teach

Indeed, it appears that in the 18th century almost any word for an activity was commonly also used to refer to those engaged in it.

These words are not verbs, although sometimes there is a verb form. Thus, it is grammatically correct to say "to hunt" (verb), "the hunt" (noun, activity), and "the hunt" (noun, those engaged in it, although this usage is more British than U.S.).

Many verb forms become activity nouns by adding "ing", the gerund form. The original Scandinavian word "vyk", meaning "to raid", becomes "viking" (raiding, noun for activity), and is used as "viking" (a raider, noun, in this case singular).

There is no verb form of "militia" (Latin, noun, activity). The corresponding verb would be "defend", as in "to defend".

Some of these usages persist in England but have abated in the U.S. So in the U.K. they say that one "goes to hospital" or "goes to university" while we put an article, "a" or "the", in front of "hospital" or "university", to emphasize the meaning of a place or institution, rather than an activity.

I'm sure if you go through a dictionary you can find a lot of other examples, including many in use in this country today, that you just never noticed before as referring to both an activity and those engaged in it, either both meanings at once, or one indicated by context.

An important reason for emphasizing the original meaning is that those who insist on using it only to mean a "group" can then take the next, incorrect, step to use it to refer to any armed group not under the direction of a government, and then use it only to refer to unsavory characters to stigmatize it. By reminding ourselves that it means "defense activity" we can see that any group that misbehaves is not militia. Not just not "well regulated", but not any kind of militia. There can be "armed partisans" or "insurgents", but the word "militia" is not properly used to refer to them because they are not defending their community and its constitution. To be "militia" it cannot be "select", as the Founders emphasized. It has to be broadly representative of the community, so it does not have interests in conflict with them.

Most of these points were made in the readings I provided links to. If you take the time to follow the links you will eventually cover all this.

 

[Jon_Roland]

Bounds on "militia"

The question has been raised of what is and is not included in "militia" as "defense activity". This is the key question in United States v. Miller, 307 U.S. 174 (1939), although it is surprising how many miss that who should know better. The SCOTUS was confronted with whether a tax statute could be applied to an item, a sawed-off shotgun, which Miller was being prosecuted for the crime for possession as an "illegal" item, made "illegal" because the tax on it had not been paid (and payment would have been refused if Miller had tried to pay it, because the tax was a ruse to prohibit the item). We have from the legislative precedent of the Militia Act of 1792 that militia items citizens were required to have were exempt from all taxes, and by implication, any item mainly for militia use would be tax exempt. The SCOTUS had to draw a line somewhere, because if everything could be used for militia, nothing would be taxable. So the court looked for evidence or argument that a sawed-off shotgun had a militia use, and finding none (because Miller was then dead and his lawyer didn't show up to argue the case), dismissed for lack of such evidence (which could have been easily provided, as sawed off shotguns were in use by military sentries in that era).

First, is a volunteer fire department militia? Yes. That was an explicit militia function in the Early Republic. But firemen were not subject to federal call-up to put out fires, because the only purposes for which militia can be called up for federal service are (1) defense against invasion, (2) suppression of insurrection (not other militias), or (3) enforcement of federal laws. That does not include disaster response, which was considered only local. There are many other kinds of defense activity at the state or local level that was the domain of state or local militia, but not federal.

What about raising turnips? No. As an activity that is too slow to be included within defense activity, which mainly contemplates violent threats to the fundamental rights -- life, limb, liberty, property. However, we have historical examples of citizens who had survived smallpox, and were thus immune, being assigned the militia duty of caring for smallpox victims and keeping them quarantined. Contagious disease was considered such a threat, whereas something like cancer or heart disease was not. On the other hand, procuring rations for militiamen while engaged in militia would be included, which could include hunting and fishing for them while in called up status, but not when not in such called up status.

A kind of militia that would be controversial today was construction of improvements, like defense walls, bridges, lookout towers, etc., in which everyone was expected to pitch in to erect, at no pay other than perhaps being fed while working. A common pattern was for a grand jury to investigate the condition of defenses, return a presentment (report) that they were in need of repair or enhancement, and the sheriff would then call out the militia to do the work. Of course, a bridge serves other purposes than defense, and led to the practice of charging tolls on them to pay for maintenance, or raising taxes to pay for them, which is what we commonly do today.

Once we recognize militia as activity, then we can see that there are different levels and kinds of activity, involving either one person acting alone, or several acting in concert. There is no definite line below which activity ceases to be defensive, but much makes more sense if we accept that the social duty of mutual defense of rights extends down to low levels of activity, and is not limited to more spectacular situations.

 

[Jon_Roland]

Substituting “Defense Activity” for “Militia” in the Constitution

Consider the following militia clauses with "Defense Activity" substituted for "Militia":

To provide for calling forth the Defense Activity to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Defense Activity, 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 Defense Activity according to the discipline prescribed by Congress;

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Defense Activity of the several States, when called into the actual Service of the United States;

A well regulated Defense Activity, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

______

Now that does seem a little unfamiliar, but it works grammatically, and is consistent with the Latin meaning that was familiar to the Latin literate Founders.

One can make the same substitution wherever "militia" appears, and in almost every case, the substitution makes sense, and clarifies what the Founders can reasonably be considered to have meant.

 

[Hugh Damright]

firemen were not subject to federal call-up to put out fires, because the only purposes for which militia can be called up for federal service are (1) defense against invasion, (2) suppression of insurrection (not other militias), or (3) enforcement of federal laws. That does not include disaster response, which was considered only local. There are many other kinds of defense activity at the state or local level that was the domain of state or local militia, but not federal.

Right ... there is no federal power to call forth militia to put out fires, but what I mean to question is if there is a federal power to organize and discipline volunteer fire departments and to call them forth to enforce federal law. Or could it be that there is no such federal power because volunteer fire departments are not "militia" as the term is used in the US Constitution?

Even merely obeying laws is militia, at a low level of activity.

What about raising turnips? No. As an activity that is too slow to be included within defense activity, which mainly contemplates violent threats to the fundamental rights -- life, limb, liberty, property

I think the first assertion may go too far ... if merely obeying the laws is militia, then I can just sit here doing nothing and that is "militia" ... but if I go outside and plant a crop that is not militia ... am I to conclude that doing nothing is a higher/faster defense activity than raising a crop?

On the other hand, procuring rations for militiamen while engaged in militia would be included, which could include hunting and fishing for them while in called up status, but not when not in such called up status.

That makes sense to me, but why don't we make the same distinctions in other areas ... putting out fires for militiamen while engaged in militia duty would be included, but not when not in such called up status ... defending ourself or other militiamen while engaged in militia duty would be included, but not when not in such called up status?

well regulated Defense Activity, being necessary to the security of a free State

But again, if we're talking about volunteer fire departments, I don't see how they are any more necessary to the security of a free State than they are necessary to the security of any other kind of State. Wasn't the idea that a standing army threatens free government, and that the proper defense of a free State (in times of peace) is not a standing army but rather the people of that State organized into militia? If a standing army had been in charge of putting out fires, and the militia was an alternative to a standing army, then it seems that the militia would be in charge of putting out fires. And while there may have been instances where militia were in charge of putting out fires, does it follow that anyone who puts out a fire is "militia" as the term is used in the US Constitution?

 

[Evan Thomas]

Re: Militia as defense activity

Jon Roland wrote:

In response to requests to provide more examples of the same word used both to refer to an activity and those engaged in it, here are a few:

Activity, those who do it | Verb
service | serve
assembly | assemble
movement | move
wedding | wed
viking | vyk
congregation | congregate
aggregation | aggregate
delegation | delegate
march | march
ministry | minister (also one who does it)
court | court (ask for something)
militia | defend
hunt | hunt
police | police (as in "clean up")
hospital | treat
university | teach

I think Mr. Roland has just proved my point, not his. What I said was that all the examples I could think of in which the word for an activity and that for those who engage in it are the same are cases in which the noun is derived from a verb. To reiterate: there is no verb form of "militia."

To say that "militia" is derived from "defend" (or that "hospital," not a collective noun in any case, comes from "treat") is... well, sorry, but the word that comes to mind is "ludicrous."

But he's in good literary company:

'When _I_ use a word,' Humpty Dumpty said in rather a scornful
tone, 'it means just what I choose it to mean--neither more nor
less.'

'The question is,' said Alice, 'whether you CAN make words mean
so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master--
that's all.'

Alice was too much puzzled to say anything, so after a minute
Humpty Dumpty began again. 'They've a temper, some of them--
particularly verbs, they're the proudest--adjectives you can do
anything with, but not verbs--however, _I_ can manage the whole
lot of them! Impenetrability! That's what _I_ say!'

'Would you tell me, please,' said Alice 'what that means?'

'Now you talk like a reasonable child,' said Humpty Dumpty,
looking very much pleased. 'I meant by "impenetrability" that
we've had enough of that subject, and it would be just as well
if you'd mention what you mean to do next, as I suppose you don't
mean to stop here all the rest of your life.'

'That's a great deal to make one word mean,' Alice said in a
thoughtful tone.

'When I make a word do a lot of work like that,' said Humpty
Dumpty, 'I always pay it extra.'

'Oh!' said Alice. She was too much puzzled to make any other
remark.

Lewis Carroll, Through the Looking-Glass

There is something of an Alice-in-Wonderland quality to his arguments...

I'm done with this one.

 

[Jon_Roland]

Levels and kinds of militia; alternate meanings

Or could it be that there is no such federal power because volunteer fire departments are not "militia" as the term is used in the US Constitution?

In the Founding Era the same words were used with multiple simultaneous meanings, or meanings that were intended to be discerned from context. As I have argued previously, "defense activity" was the original, primary, meaning, but there were others:

1. defense activity
2. [set of] those engaged in defense activity
3. [set of] those who are required to respond to a federal militia call-up
4. [set of] those who are required to respond to a state militia call-up
5. [set of] those who are required to respond to a local militia call-up
6. [set of] those who respond to a call-up but aren't required to do so
7. [set of] those prepared to prevail over a standing army if it should come to that

If you substitute these phrases for "militia" in various contexts to see which makes the best fit, given what we can discern of the Framers' intent, much makes more sense. From the alternatives above, we can see that in the U.S. Constitution the meaning includes "those who are required to respond to a federal militia call-up" as a proper subset of "those who are required to respond to a state militia call-up", made proper because the purposes for a legitimate federal call-up are a subset of the purposes for a state or local call-up.

It is a mistake to treat terms of art with multiple, alternate meanings as though they only had a single, simple meaning. That's not the way the Founders used English. It's not even the way we use it today.

am I to conclude that doing nothing is a higher/faster defense activity than raising a crop?

They are different kinds of activity, so a lower level of some kind can be that kind while a higher level of activity of as second kind is not the first kind. However, merely obeying the law is setting an example and influencing the behavior of others to do likewise. Law enforcement is not just about arresting and prosecuting violators. It begins with setting an example and educating or influencing others to comply with the law any way one can.

why don't we make the same distinctions in other areas ... putting out fires for militiamen while engaged in militia duty would be included, but not when not in such called up status ... defending ourself or other militiamen while engaged in militia duty would be included, but not when not in such called up status?

Militia is not just about defending defenders, but the community. However, those who had previously been unwilling to do their fair share of militia might well be left undefended, if that could be done in a way that did not risk those who had been willing to do their fair share. Militia duty was not just enforced by fines or jail. It was mainly enforced by social pressure and perhaps leaving defectors undefended, which could be tantamount to a death sentence for severe threats.

Wasn't the idea that a standing army threatens free government, and that the proper defense of a free State (in times of peace) is not a standing army but rather the people of that State organized into militia?

More to the point, the intent was not that there wouldn't be a standing army, but that militia was always to be kept ready to defeat them if the army were to become a threat to the community and its constitution.

does it follow that anyone who puts out a fire is "militia" as the term is used in the US Constitution?

Yes, in the sense of "those who are required to respond to a state [or local] militia call-up", but not in the sense of "those who are required to respond to a federal militia call-up". "Defense activity" encompasses both, but the context can put the focus on one rather than the other.

It is an acceptible method of constitutional construction to disaggregate compound terms and substitute expressions that have essentially the same meaning but are more precise and easier to understand.

 

[Jon_Roland]

Re: Militia as defense activity

all the examples I could think of in which the word for an activity and that for those who engage in it are the same are cases in which the noun is derived from a verb.

And I provided examples in which the word for the activity was not derived from a verb. There are many such words, most of which refer to complex activities that either do not work as a verb, or for which an etymologically unrelated verb is available that pre-empts the development of a verb form from the noun for the activity.

Derivation can work both ways. Sometimes people use or modify nouns to get verbs, or other parts of speech.

We can see this by looking for a verb form that means "to engage in militia". One candidate would be "to muster", and "muster" is another word that can be either a verb, an activity noun, or a "those who engage in it" noun. It is also commonly used in association with "militia". However, it contains the meaning of "gathering" (another verb/activity/engagers word), and while "militia" often involves "gathering" it does not always do so. There can be militia of one, or militia that is scattered over a wide area without 'gathering" at any point, except perhaps for its officers.

Note here that the standard oath for military and militia is to "preserve, protect, and defend the Constitution". It uses three verbs, because each adds something to the complete obligation, and no one verb is sufficient. It also uses the term "Constitution" to represent not just the written document, but the more complex idea of the "society governed by the Constitution".

One of the reasons I emphasize studying 18th century English as a foreign language is that English had only recently displaced Latin or French as the language of law, and had not yet been transformed from the poetic language of the Elizabethan Era into the language of law, commerce, and learning.

 

[Evan Thomas]

Re: Millitia as defense activity

Jon Roland wrote:

And I provided examples in which the word for the activity was not derived from a verb.

No, Jon, actually you didn't. You listed three words -- "militia," "hospital," and "university" -- none of which fits the criterion of a word that's used both for an activity and as a collective noun referring to those who engage in that activity -- and tried to associate them, by some process which escapes me, with etymologically unrelated verbs; in your other examples, you list a noun and verb which derive from the same root. This supports the point I made initially about this class of noun: there is always an associated verb. You're correct in saying that which one came first is not relevant: as I tried to point out with the quote from John Adams I cited, the transformation does go both ways, and did in the 18th century.

In any case, this is a bit of a red herring. When I asked for examples, what I was mainly hoping for was an example of the usage you're claiming for "militia," from an 18th century source.

My point in all this is not to quibble about noun-verb transformations. It's that I believe the larger argument you're making here is based on a false premise: namely that in the 18c. "militia" was used to mean an activity as well as a group of people. You can prove me wrong with one verifiable (i.e., with a traceable reference) example of a quotation from an 18c. work in which "militia" is unambiguously used in this sense. Please don't refer me to your website again, unless it's to a specific link which quotes such an 18c. reference.

Since you're claiming this was a common usage in the 18c., you must know of examples. Provide me with one, and I'll gladly concede the point.

You wrote:

It is an acceptible method of constitutional construction to disaggregate compound terms and substitute expressions that have essentially the same meaning but are more precise and easier to understand.

Yes, it is, but first you have to establish that terms in question do have essentially the same meaning. In establishing this, "Because I say so" isn't persuasive.

 

[RDak]

TG: Here's a link to the Michigan Emergency Volunteers ("MEV"). It's somewhat akin to a well-regulated militia but not as strict. It operates under the authority of the Gov. Granholm.

http://www.mivdf.org/

We can organize neighborhood watch groups as long as over one-half of the residents approve of one. They are strongly encouraged not to arrest anyone but it is legal for them to do so if they witness a felony. But it is strongly frowned upon by the police for safety reasons.

These are our "approved" militias IMHO. The MEV is more a well-regulated type of militia and the neighborhood watch groups are more of a general militia. These groups are obviously not on par with the strict definition of a well-regulated militia but they provide some of the "flavor" of one IMHO.

These two groups are recognized by the professionals and the pros are always available to help out or answer questions. The MEV is headed by retired military people IIRC.

We also have/had(?) a strong movement in Michigan towards armed unregulated militias but they are not recognized by the State. I know very little about these unregulated militias and really couldn't tell you much more about them. I only know what I hear in the media.

 

[Evan Thomas]

Jon,
You wrote:

Some of these usages persist in England but have abated in the U.S. So in the U.K. they say that one "goes to hospital" or "goes to university" while we put an article, "a" or "the", in front of "hospital" or "university", to emphasize the meaning of a place or institution, rather than an activity.

Actually, this usage is commonplace in both British and American English. It's used in several ways. First, to denote location in the present: You'd reasonably answer the question, "Where's George?" with "He's at school," or "He's in church." Another use is to denote an activity in the present: you might answer the question "What's George doing [right now]?" by saying, "He's at work." Note that in all the cases in which the referent is an activity, there's a verb form of the noun, as well: you could also say "He's working." You wouldn't say "He's schooling" unless George were a fish, but the verb form still exists. You could, however, say "He's going to school" to mean either a location (he's en route there right now), an activity (he's travelling there), or that he's a student. You'd need the context to know which was meant.

The last of these is an example of another use of this construction, which I think you're misconstruing in your examples of "hospital" and "university:" the use of a place referent to denote a condition, as distinct from an activity. This is where it gets interesting, and I think this is why you're trying to bring in these examples to support the meaning you're claiming for "militia." In both British and American English, we say "He's in prison" (the condition of being a prisoner) or "He's in school" (the condition of being a student). So you might answer the question "How's George these days?" by saying "He's in hospital." Your listener would understand this as a description of George's condition: he's sick.

This is where the British usage differs somewhat from the American: "He's at university" is British for "He's a college student;" it doesn't refer to an actual location, and it refers only to students, not to teachers or cafeteria workers. (An American would say "He's at the University" to mean (a) a specific location, (b) the condition of being a student, or (c) the condition of being employed by the University.) It's also possible for a Brit to say "He's in work," referring to the condition of being employed -- an American would never say this, I don't think.

You wrote (a while back):

Anyone engaged in activity defending the community is engaged in militia, and that activity is properly called just "militia" (not "the" militia or "a" militia).

I think this is where your confusion arises, and why you're dragging in the examples of "university" and "hospital." It's true that the British drop the article in front of these nouns in certain cases, and say "in hospital," for example. You seem to be trying to argue that dropping the article here is a peculiarly British thing (and was in the 18c.), and that because it's also possible to say "George is engaged in [management, or fishing, or service - insert the activity of your choice here]" -- in which the article is also dropped -- that dropping the article somehow makes the word refer to an activity.

But as I've noted above, "in hospital" doesn't refer to an activity. It refers to the condition of being sick. This is why your association of "hospital" with "treat" in your list of examples is meaningless, and it's also, basically, why none of this supports your contention that "militia" refers to an activity or set of activities. A condition and an activity are not the same, and "militia" refers to neither. It has the meanings I cited initially, and only those meanings:

1 a: a part of the organized armed forces of a country liable to call only in emergency
b: a body of citizens organized for military service
2: the whole body of able-bodied male citizens declared by law as being subject to call to military service​

Enough said. More, far more, than enough.

 

[Hugh Damright]

"that standing armies, in time of peace, should be avoided as dangerous to liberty"

the intent was not that there wouldn't be a standing army, but that militia was always to be kept ready to defeat them if the army were to become a threat to the community and its constitution.

Wasn't the intent that there would be militia instead of a standing army? As I understand it, Virginia once had British troops here, supposedly for our protection, but really more to dominate us. Some States to the south wanted British troops because they still needed protection from Indians, but the French and Indian threat had passed for Virginia, and Virginia declared (in 1775) that a standing army in times of peace is a danger to liberty, and that the proper/safe/natural defense of a free State is the people of that State organized into well regulated militia. I do not think we can construe such a declaration to mean that Virginia wanted to keep the British troops and also create Virginia Militia, I think the intent must have been to do away with the troops and for Virginian to instead have militia to perform that function. IIRC, all of the requests for the Second Amendment declared that a standing army in times of peace is a danger to liberty. I understand the intent to have been that, unless at war, there was to be no standing army but instead there was to be militia.