LEGAL NOTES
BY
Lucien C. Gwin III
Militias: Looking for a Few Good Men
I
read with much interest, The Natchez Democrat article about a local citizen who met with the Board of Supervisors to inform them that he was interested in forming a “minute man group.â€? I also noticed that he was careful to say that he was “not forming a militia.â€? From there, he didn’t really say what formation the group would take, but simply that there are current safety concerns from residents. One has to be a complete hermit not to know and understand that violence, mob rule, and riots have taken over parts of our country; and crime seems rampant everywhere. I have talked with a lot of people in the last few months; and I have never heard so much discussion about public safety, personal protection, and the “Gâ€? word (GUNS). The violence as of late and people’s overall concern for their safety made me wonder whether local residents have a right to form a local militia. First, one must GHĂ€QH WKH WHUP militia. 7KH GHĂ€QLWLRQ RI D militia in its purest form is the following— “a military force that is raised from the civil population to supplement a regular army in an emergency.â€?
7KLV GHĂ€QLWLRQ FRQMXUHV up ideas of men between the DJHV RI HLJKWHHQ DQG IRUW\ Ă€YH armed and bonding together to Ă€JKW VRPH RSSRVLQJ IRUFH EHQW on civil destruction. Now, the real question is this: Is it legal for private citizens in Mississippi to band together with weapons to be UHDG\ WR JR DQG Ă€JKW VRPH LQvading force bent on civil unrest and destruction? The answer to this question is contained in the Mississippi Code. 6SHFLĂ€FDOO\ 0LVVLVVLSSL &RGH Annotated § 33-1-31, states the following: “It shall be unlawful for any body of men whatsoever, other than the regularly organized, armed military in this state, the Armed Forces of the United 6WDWHV RU FHUHPRQLDO Ă€ULQJ squads of veterans chartered by Acts of Congress, to associate themselves together as a military organization for drill in public with Ă€UHDUPV in this State, without special license from the Governor for such occasion.â€? So, a militia, under state law (in fact, XQGHU PRVW VWDWH ODZV LV GHĂ€QHG DV WKH National Guard. There is great debate today over whether the Second Amendment to the United States Constitution trumps state laws prohibiting local militias. We all know that Federal Law overrides State law. The State of Texas, however. is one of the only states legalizing militias. , ZLOO QRW JR LQWR JUHDW GHĂ€QLWLRQ RI WKH Second Amendment; but in 2008, Justice Antonin Scalia (my legal hero), in essence said that the Second Amendment means that United States citizens and NOT the government militias have the individual right to own and use their guns for personal safety. Many people of liberal persuasion believe that only the United States *RYHUQPHQW FDQ DQG VKRXOG SRVVHVV Ă€UHarms and that the Second Amendment applies only to the United State Government. However (and thankfully), Justice Scalia’s decision is the law of the land.
Mississippi also has an article in its constitution, Section 12, which states the following: “The right of every citizen to keep and bear arms in defense of his home, person or property, or in aid of the civil power when thereto legally summoned [by the Governor, I suppose] shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.â€? Mississippi’s Castle law allows a person to use deadly force in protecting his or her home, occupied vehicle, or business. Today in Mississippi and in most southern states, I can own a souped-up AR-30, round baQDQD FOLS DXWRPDWLF UDSLG Ă€UH ULĂ H , DFWXally own two.) and defend my home, business, family, property, or car; but I cannot, however, get together with my buddies and do the same thing. Now, there is a big difference in going to a neighbor’s aid in a life-threatening assault or crime versus forming an unorganized militia. Article 1, Section 8 of the United States Constitution allows only Congress to provide for the calling forth of militias to suppress a national attack; and said article reserves for the states the right to form and regulate militias, which today are almost DOZD\V GHĂ€QHG DV WKH 1DWLRQDO *XDUG My Thoughts: A great debate still rages about the Second Amendment to the United States Constitution. I read Justice Scalia’s case to say that the government can’t take away an individual’s right to defend himself or herself with guns of all types and kinds; but under certain circumstances, guns can be regulated (i.e. people under twenty-one years old cannot purchase guns, felons can’t own guns, etc.). That being said, in most states, Mississippi included, citizens of the United States of America do not have a constitutional right to form a local, organized militia or even a police force without further governmental authority from either their states or from the federal government. Lucien C. “Samâ€? Gwin III was admitted to the Mississippi Bar in 1981 and has been practicing many aspects of the law at the firm of Gwin, Punches & Kelley in Natchez, Mississippi, ever since.
Bluffs & Bayous { November / December 2020 { Page 23
