Checkmate on your “Military Type” Firearms Ban

checkmateThe Tenth Amendment Center – by Bob Greenslade

Progressives at the state and federal level are rushing to enact legislation that would ban firearms they claim are “military type” weapons. If they want to classify these weapons as “military type” firearms, then they have a problem, irrespective of the Second and Ninth Amendment, because a militia clause in the body of the Constitution bars them from enacting any general ban on these weapons.  

The Militia Debate—Arming the Militia

During the debates in the Federal [Constitutional] Convention of 1787, there was an extensive debate concerning the militia. On August 23rd, a committee report was delivered to the Convention. The following clause was under consideration:

“To make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U.S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed-

Mr. King “by way of explanation…the Committee meant…by arming, specifying the kind size & caliber of arms….”

Mr. Madison “observed that ‘arming’ as explained did not extend to furnishing arms….”

Mr. King “added, to his former explanation that arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the Militia themselves, the State Governments, or the National Treasury…”

There was no dissent from the Committee’s definition of the word “arming.” This provision, with a slight modification in verbiage, was adopted as Article 1, Section 8, Clause 16 of the Constitution for the United States.

Mr. King’s statement shows the intent of Clause 16 was to give Congress three (3) options for “arming” a State militia when called into federal service. First, Congress could require the individual to report with their personal military weapon. Second, it could require the militiamen to report with military weapons supplied and paid for by the individual State governments. Third, the federal government could supply and pay for the weapons.

This raises several interesting questions. How could citizens be constitutionally obligated to furnish their own military weapon, when called into federal service, unless there was an existing right to manufacture, purchase and posses such a weapon? And how could the States furnish arms to their militias unless they already possessed the “collective right” to arm their militias? According to organizations like The Brady Campaign, it took the so-called “collective right” Second Amendment, which was adopted 4 years after the Constitution was written, before the States and the members of their militias were “afforded” or “guaranteed” the right to keep and bear arms. As shown by Mr. King’s statement, these so-called rights existed prior to, and independent of, the Constitution or the Second Amendment.

A State cannot Negate the Arming Provision in Clause 16

Since the word “arming” in Clause 16 includes individual citizens providing their personal military weapon, independent of State control, no State can pass a general statute that negates or interferes with this constitutional provision. Thus, a general ban on “military type” firearms by a State is an unconstitutional encroachment on the exclusive power of Congress to prescribe the mode for arming State militiamen, when called into federal service, pursuant to Article 1, Section 8, Clause 16.

The Federal Government cannot Amend Clause 16 by Statute

A general federal ban on “military type” firearms would constitute a legislative revision of the Constitution because it would alter the arming provision enumerated in Clause 16. If members of the militia cannot purchase or posses “military type” firearms, then they cannot report when called into federal service with “military type” firearms. Thus, Congress would be modifying or removing one of the 3 options incorporated in Clause 16. That body cannot pass any statute that alters or defeats a constitutional provision. Since the Constitution can only be changed through the amendment process enumerated in Article V, the arming provision of Clause 16 supersedes any statute passed by Congress and prevents that body from negating it.

The Federal Government has no Authority over a State Militia when not in Federal Service

The only powers granted to the federal government concerning the militias of the several States, other than the power to call them into the service of the United States (Article 1, Section 8, Clause 15), are found in Clause 16. When not in the service of the United States, the federal government has ZERO authority over a State militia, their individual members, or their firearms. There is not a single provision in the Constitution that grants the federal government the power to prevent State militias or their members from acquiring and possessing firearms. In fact, Clause 16 specifically requires the States to maintain armed militias, independent of the federal government, because Congress can call them into the service of the United States at any moment and require them to be armed pursuant to Clause 16.

The Federal Government has no Power to Disarm a Militia or its Members

Federal control of the militias of the several States was the subject of heated debate in the individual State Ratifying Conventions. The following excerpts from the 1788 debate in the Virginia Ratifying Convention refute any assertion that Congress can disarm or prevent a State militia or its members from possessing “military type” firearms:

Mr. JOHN MARSHALL “The state governments do not derive their powers from the general government… The state legislatures had the power to command and govern their militia before, and still have it, undeniably, unless there is something in this Constitution that takes it away… But the power given to the states by the people is not taken away; for the Constitution does not say so. The truth is, that when power is given to the general legislature, if it was in the state legislatures before, both shall exercise it, unless there be an incompatibility in the exercise by one to that of the other, or negative words precluding the state governments from it. But there are no negative words here. It rests, therefore with the states. To me it appears, then, unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they could have done before its adoption… All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to the Congress) are contained in the 10th section of the 1st article. This power is not included in the restrictions in that section. But what excludes every possibility of doubt, is the last part of it– that “no state shall engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” When invaded, they can engage in war, as also when in imminent danger. This proves that the states can use the militia when they find it necessary.”

Marshall’s remarks totally invalidate any general ban on “military type” firearms. He noted the Constitution (Art. I, Sec. 10, Cl. 3) forbids the States from engaging in war, “unless actually invaded, or in such imminent Danger as will not admit of delay.” The Constitution, through the above clause, authorizes the States to use their militia to engage in war without consulting Congress. How could the States, as noted by Marshall, engage in war to protect their borders if Congress had the power to prevent their militiamen from possessing a military type weapon? This State power is independent and separate from the powers delegated to the federal government concerning the limited use and control of a State militia.

As the debates continued, Marshall, who would later become Chief Justice of the United States Supreme Court stated:

“[T]hat the power of governing the militia was not vested in the states by implication, because, being possessed of it antecedent to the adoption of the government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been.”

Marshall noted that the States had the indisputable power to control their militias prior to the adoption of the Constitution and they retained that power unless they agreed to surrender it. As shown by Marshall, the States had the exclusive power to arm their militias independent of Congress, the Constitution, or any subsequent amendment. Thus, Congress cannot abrogate the right of members of a State militia to purchase or posses “military type” firearms.

If the federal government had the power to penetrate the sovereignty of a State and impose general bans on “military type” firearms, then it could disarm their militias and render them useless. This would be contrary to and in conflict with Article I, Section 10.

Who are the Militia?

Many Americans might be surprised to learn that they are, were, or will be a member of the militia under both state and federal law. For purposes of federal law, the composition and classes of the militia are defined in Title 10 of the United States Code, Section 311:

(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.

Since the National Guard of a State is a sub-component of the militia of the United States (i.e., State militias in the service of the United States), and members of the militia can be required to provide their own military weapon pursuant to Clause 16, a general “military type” firearms ban imposed by a State cannot be applied to an individual who meets the statutory definitions above.

In addition, every individual between the ages of 17 to 44 who meets the qualifications referenced above, and is not a member of the National Guard or the Naval Militia (organized militia), is a member of the unorganized militia of the United States. This means everyone from the 19-year-old college student to the 43-year-old doctor is subject to the “arming” requirement enumerated in Clause 16. Thus, there must be a general right to purchase and possess a “military type” firearm or this constitutional provision would be an absurdity.

Even if a State had the power to pass a general ban, it could not prevent individuals between the ages of 17 and 44 from possessing this type of weapon because they could be required to report for federal service with that weapon in hand. And since every State in the Union has a companion statute for their militia, and it exists independent of the Constitution or the federal government, Congress cannot ban these individuals from possessing a “military type” firearm. In fact, if a State passed a statute requiring their militia members to posses a military firearm, the federal government would not have the constitutional authority to stop them because that government has no power over a State militia or their members when not in federal service.

One Clause cannot Alter or Negate Another Clause

The federal government claims the Commerce Clause granted it the general power to regulate firearms. Even if this assertion were true, Congress cannot circumvent Clause 16 through the Commerce Clause because one clause of the Constitution cannot be invoked alter or negate another clause.


Irrespective of the pronouncements by legislators at the state and federal level, the right of citizens to possess a “military type” firearm existed prior to and independent of the Constitution or the subsequent adoption of the Second Amendment. The Framers of the Constitution embedded this right in the “arming” provision of Clause 16. Thus, neither government has the general authority to modify or negate it through a legislative act.

Bob Greenslade [send him email] has been writing for since 2003. Bob focuses his writing on issues surrounding the federal government and the Constitution. He believes politicians at the federal level, through ignorance or design, are systematically dismantling the Constitution in an effort to expand their power and consolidate control over the American people. He has dedicated himself to resurrecting the true intent of the Constitution in the hope that the information will contribute, in some small way, to restoring the system of limited government established by the Constitution.

24 thoughts on “Checkmate on your “Military Type” Firearms Ban

  1. Very good points, but we all know these people aren’t following the law, nor do they belive in the Constitution.

  2. Okay. Forget all the double-talk, all the legalese, and all the analysis of all the new gun laws, and forget all the gun laws themselves.

    It’s all very simple. They’re coming to take your guns so they can kill you, and easily take whatever you have left. It’s that simple, so there’s no need to spend hours trying to decipher what the law means, and what it covers, or how it was worded.

    You also aren’t going to sue anyone to get your freedom back, either, because we haven’t had a properly functioning justice system for a long time. Get ready for the fight of your life, and get ready to WIN it. All other options have been systematically removed, and this is what we’ve been left with, so play the cards you’ve been dealt and stop crying about it.

    It all happened because you were staring into the TV to get a better look at Brittany Spears’ boobs instead of watching your government, and now you’ll have to pay the price for your apathy.

    you’ll reap what you sow

    1. How do you expect to “win” the fight that is supposedly coming unless you know what the “law” is that you intend to enforce? Or are you a “law” unto yourself? In which case you pose almost as much of a danger to this country as the people you think you will have to fight.

      1. Ed, Ed, Ed, You still don’t get it. There is no rule of law in this country. You’re thinking like a lawyer, stop it! The law that we need to enforce is natural law. The law of man is always perverted to serve the ruling class. It is lawyers who twist and torture a simple declaration of natural law into a morass of legalistic mumbo jumbo that, in my opinion, is merely a masturbatory display of intellectual pedantry. The right to keep and bear arms (militia or no, that’s right, the militia is an extension of a personal right as in “We need more guys to get the job done”) is the law of the creator and trumps any “law” man might conjure. Stop making it so complicated-it isn’t.

        1. You might have missed it, but the Declaration of Independence, on the legal strength of which all the subsequent constitutions and laws in this country are predicated, is explicitly founded upon “the Laws of Nature and of Nature’s God”–as therefore are all of the other laws which derive from it or under its aegis. So “the Laws of Nature and of Nature’s God” are already part of this country’s body of laws. The problem, however, is in delineating exactly what those “Laws” require, or allow. Do you imagine that “the Laws of Nature and of Nature’s God” teach that each man in a community may be “a law unto himself” alone, that he has no duties towards others, and that his rights are not originally defined in relationship to the rights (and duties) of his fellow-citizens, rather than according to his own personal preferences? If so, you have never studied “natural law”. In any event, as a purely practical matter, your personal right to possess a firearm, divorced from any personal duty to the community, will prove of utterly no value when you are confronted with a mob of thugs dispatched by the local tyrant to apprehend you, and there is no one around who is willing, let alone required, to help you. The constitutional Militia are organizations of all of the able-bodied citizens within their communities, based upon certain specific legal principles and having certain legal authority–which is why the Militia are included within the federal system in the Constitution. Your personal opinions are not the source of those principles (and certainly cannot contradict them), and imbue you with no legal authority whatsoever over anyone else. It is useless to appeal in general to “the law of the creator”. That law certainly justifies personal self-defense, and community self-defense, too; but it does not tell us how most effectively to organize our communities for community self-defense, in the pursuit of which not every man can simultaneously be “a law unto himself” and a participant in the community’s collective effort. For the latter purpose, the community needs many laws that “man might conjure”, and that “man MUST conjure” if he wants his community to survive.

          1. Each man is the law unto himself. It is called self-governess, and our rights are a part of our being, as individuals.
            F#@k you and f#@k your collective attitude. This is not the Tea Party or Occupy. We will not be put into a herd to be controlled by a handful of turncoats.

          2. edwin, If all these millions upon millions of “MAN MADE” STATUTES AND CODES( man made laws) which NO MAN CAN KNOW ALL OF OR UNDERSTAND are so grand then how come our whole world is crashing, our greatest cities(detroit chicago etc.) are fkn war zones nearly 50 million here in america on food stamps no hope is rampant across this country,despair and war are served to the american people 24/7 365 ,ignorance and the queer agenda dominate the schools and filth has become common.We the HOMETEAM have clarity on what must be done and it is with natural law not man made codes of corporate sleeze and favoritism enslaving freemen is the agenda of all self serving manmade “laws” and they must be abolished.If only each of us would treat everyone else as we want to be treated and MIND OUR OWN HOUSES then most of our problems would evaporate leaving only traitors to prosecute and hang then we as a nation would be well on our way to recovery.

      2. I know what the law is I intend to enforce. It’s called “hack off their F&%$in’s heads and roll them down the street”, because that’s the only law they’ve left us.

        You can spend a decade of your life being run in circles by corrupt courts if you like, but I’ve seen that happen to too many people already.

        There is NO LAW without a functioning legal system, and we don’t have one of them.

        1. “For the latter purpose, the community needs many laws that “man might conjure”, and that “man MUST conjure” if he wants his community to survive.”

          We don’t need to “Conjure” anymore freakin’ laws Eddude, we have too many as it is! They create new laws everyday….
          Too Many laws, Too Many executive orders, and Too large of a government is in part why we are where we are today.

          Go bury your head back in the sand, that way you’ll be in the right position when they come to screw you.

      3. I don’t give a good god damn about laws of men. If a man assaults me with intent to do harm to myself, my family or my property that man or men will die. So to answer your question that you so cowardly asked, yes I am a law unto myself. I was born into this world not by my own doing, I have to live with the consequences of my decisions and when It comes time to die, I will die alone and it will be my personal experience, it always has been. I make my laws. Not men who have I have surendered no authority to. THAT is what makes me a freeman. If you wish to remain a slave, keep thinking in terms of laws imposed on you by your masters.

        “We ask not your councel nor your arms, bow down and lick the hand that feeds ye, and let posterity forget ye were our countrymen.” – Samual Adams (A freeman)

  3. A good article. However, notwithstanding 31 U.S.C. sec. 311, the National Guard and the Naval Militia are not constitutional “Militia” at all. They are the “Troops, or Ships of War” that the States may “keep * * * in time of Peace” with the “Consent” of Congress. Art. I, sec. 10, cl. 3. A condition to Congress’s “Consent” is to meld these establishments into the regular Armed Forces under certain conditions, which (of course) is constitutionally impossible for true Militia. Also, 10 U.S.C. sec. 311 is plainly nonsensical to refer to “the militia of the United States” (unless that is Congress’s confused way of signifying the National Guard and the Naval Militia alone). As the Constitution makes clear, there is no “militia of the United States”, only the fifty “Militia of the several States”. Art. II, Sec. 2, cl. 1. “Part” (or perhaps all) of “the Militia of the several States” may be “call[ed] forth” for certain purposes to be employed in the “Service of the United States”. Art. I, sec. 8, cls. 15 and 16; and art. II, sec. 2, cl. 1. But that does not change their character as State institutions.

  4. Okay, Ed.
    Get yourself a good lawyer, take this to court, and see how far you get. I suggest what I do because everything else has been tried for decades while you were watching some idiocy or another on TV.

    No one came this these conclusions overnight. Some people here have been wrestling through the court system for decades. You’re clinging to a TV fantasy you remember from watching “L.A. Law”, or some other non-sense, but the reality of what happens in our courts is very different.

    I’ve been awake for a decade, and many people here for much longer than that. You have some catching up to do as far as grasping reality is concerned.

  5. Ed, Ed, Ed, you really are living in another world, my friend. READ MY TEXT:


    What part of that do you not understand?



    What part of that do you also not understand?

    Like JR says, if you value the law so much, then go take it up with the corrupt courts and see how far you get. I guarantee you won’t make it past the first stage.

    Wake up and stop living in your legal LA LA LAND. There is no legality in this land any more and that’s why we need to arrest the traitors in the White House, Congress, and all government positions and hang them by the rope for treason and crimes against humanity.

    The Constitution and our Bill of Rights was not meant to be twisted by your words and legal speak nor by any members of the British BAR club. It was meant to be understood by everyone. NOT THE PRIVILEGED FEW. Try talking and thinking like a normal American National and not some frat boy trying to get on his high horse in order to preach the law to everyone and thinking he is better than everyone else because he got indoctrinated by the elite through a phoney college law school and got some fake corporate piece of paper that ain’t worth the paper it’s printed on that says, “I’m a member of the lawyer’s club”.

    We here on From the Trenches know what our God-given rights are and what the law is. So why don’t you go take your bullshit, legal rhetoric and man-made penal codes and shove it up your ass!

    1. NC, though I agree with your intent to do justice to the criminals, I am afraid we are in a much more serious situation. It would do no good to arrest them and it would serve no justice. They have committed the crimes of war against the people in broad daylight and without consequence. As the state has become the enemy of the people, the people are under no moral obligation to afford them trial nor reprieve. As they have created a state of war the natural law of war can be serverd on them. The natural consequence is extermination.

      1. Dead or Alive, it makes no difference to me as they will get there’s eventually, soon after we get them. Maybe you missed the part where I said, “hang them by the rope for treason and crimes against humanity.” soon after arresting them.

  6. Ed all you need to do is get some hemp rope.We know who the tratiors are and where the lamp posts are, use your brain.Going through the courts is like voting,and we all know how that turns out.I would think from your posts that your working for the Obama administration.

  7. Ed, really? You think this will be solved by using a totally corrupted, government controlled “legal” system? WOW! I thought better of you than that BS. The courts have betrayed us, the elections are a sham, the economy is being systematically destroyed, there are wars and talk of more wars and you think blabbering on about some arcane and useless legalese is going to help? Get a grip on yourself man!

  8. Well Mr. Ed…..pun not intended……..when they push the big button they think they have……they aint not friggin law, No more No how………..Get your damn head out of the book and get some range time………if you dont ,they gonna have a bead on your pasty ass…
    We appreciate your studied attention to law detail…..but now it seems we could rather use you if you be a true Patriot and not a mouth piece,…as a good field man and rifleman.
    The time to argue the f*%^&( law is over……! Besides…who is left thats not corrupt that will listen to your documents at the B A R ??

    We have relied on Legal eagles for so long now that we are all but CHAINED…….enough already…shit-it or move!

  9. Ed, I am glad you mentioned the Declaration of Independence; however if you would re-read it you will see that the government We suffer under today makes king George look like a saint, by comparison.

    Our so called elected leaders are bought and payed for by the corporate dynasty, who’s only goal is profit at any cost.

    The Law is preached to us by nine black robed priests of Satan, who have forgotten where the Law originated in the first place, and have the unmitigated gall to preach to us the meaning of what we have written for them.

    We have been declared the enemy of the very country WE THE PEOPLE created, and this is not a recent declaration, it predates the the bankers war of 1861. They have declared war on us, so we are no longer obligated to dance to the tune of their statutory death march. ENOUGH is ENOUGH.

    You offer us mediocrity in pursuit of justice, which is no virtue. There is no justice, and there hasn’t been for a long time, what is left is, JUST US.

    We have been divided by every trick in the book, pitted against one another over trivialities, it is time to shut out the divisive rhetoric, drop the labels,whether they are, ethnic, religious, or political. We are Americans
    first, or not at all. To war amongst ourselves is defeat, to revolt is to tear it all apart, our only recourse at this time is to REBEL in every possible way.
    They have been in our face long enough, its time to get in their face, don’t be nice, don’t be polite, raise your voice, and raise some hell, give em A
    little religion, like the fear of God.


  10. What is clear to all is there is a force afoot to destroy our freedoms and way of life. It is united. The dark side would have us all at each others throats arguing the finer points of how we are to resist oppression(divide/conquer). This is all good debate. Let us not be divided on our cause. Individual rights/freedoms. At some point, we will all have to make decisions(life and death type). Let’s keep in mind the common foe.

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