The Dick Act and Gun Control



David Kopel and David Hardy

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JPFO Introduction: Much has been said about the "Dick Act", to the extent that is has been assumed to be a reliable protection against any and all 'gun control' measures. It would appear this is not the case at all, and to help explain it we offer these two essays by David Kopel and David Hardy, both much respected friends of JPFO. In addition, it might be worth checking back also to our recent article by David Hardy, looking in depth at the legal background of the National Guard.

The Dick Act and Gun Control

by David Kopel

The first federal statutes governing the militia of the United States were enacted in 1792. There were some revisions in 1795. During the Civil War, and amendment removed the language that had restricted militia membership to free whites.

The old militia statutes were repealed and replaced by the Militia Act of 1903, 32 Stat 775, commonly known as the "Dick Act" for its sponsor Charles F.W. Dick, a Major General in the Ohio National Guard.

The Dick Act gave formal federal recognition - and financial support - to the National Guard, which had begun as a volunteer state-based civic organization after the Civil War. According to the Dick Act, the "organized militia" of the United States is the National Guard, plus the Naval Militias maintained by some states. 10 USC Sect 311 (b) (1)

The Dick Act also defines the "unorganized militia." The unorganized militia is all able- bodied men between the ages of 17 and 44 years of age who are United States citizens (or "have made a declaration of intention to become citizens"), and who do not belong to the organized militia. 10 USC Sect 311 (a), (b) (2). They are subject to call-up by the federal government in order to "execute the Laws of the Union, suppress insurrections, {or} repel invasions," under the Constitution's Militia Clauses. (Clause 15 of Article I, Sect. 8 is the "Calling Forth" clause. Clause 16 grants Congress the power to organize, arm, and discipline the militia.)

The best book on the early history of the National Guard, including the Dick Act, is Jerry M. Cooper, The Rise of the National Guard: The Evolution of the American Militia, 1865-1920 (2002). During the late 19th and early 20th century, the National Guard and the National Rifle Association were closely intertwined.

The Dick Act has long been a part of the Second Amendment debate in the United States, since the Act plainly shows that Militia is not solely the National Guard.

These days, however, a ridiculous e-mail is being circulated, which claims that the Dick Act absolutely prohibits any form of gun control for men 17-44. Further, the e-mail asserts, preposterously, that the Dick Act is unrepealable, because repeal would violate the Bill of Attainder and Ex Post Facto clauses. David Hardy's blog deconstructs this e-mail over at his excellent blog, of Arms and the Law. Hardy's Blog is mandatory reading for anyone with a serious interest in firearms law and policy.

Grotesquely wrong e-mails such as this are, objectively speaking, helpful to gun prohibitionists. To the extent that pro-rights activists mistakenly rely on the e-mail, and use it as the basis for arguments that they send to elected officials in opposition to proposed anti-gun laws, the activists are wasting their time with arguments that are plainly incorrect, and therefore will not be persuasive to elected officials. Further, some readers who fall for this email hoax may imagine themselves immune from a vast array of repressive laws which are being pushed in Congress and the state legislatures, some of which have already been enacted in New York. As a result, these readers may sit on the sidelines politically, failing to get involved at a time when citizen activism is essential.

Dick Act Mythmaking

Posted by David Hardy - 25 January 2013

I've rec'd 3-4 copies already of an email claiming that the Dick Act of 1902 … well, let me post it:

"DICK ACT of 1902 - CAN'T BE REPEALED (GUN CONTROL FORBIDDEN) - Protection Against Tyrannical Government This criminal Cabal is counting on the fact that the American Citizens don't know this, their rights and the constitution. Don't prove them right.

The Dick Act of 1902 also known as the Efficiency of Militia Bill H.R. 11654, of June 28, 1902 invalidates all so-called gun-control laws."

No, the Dick Act repealed the Militia Act of 1792, and created the National Guard system. It says nothing about gun control. And it was extensively re-written in a couple of post-WWI Army Acts.

"It also divides the militia into three distinct and separate entities. ** SPREAD THIS TO EVERYONE ** The three classes H.R. 11654 provides for are the organized militia, henceforth known as the National Guard of the State, Territory and District of Columbia, the unorganized militia and the regular army."

I believe 10 USC 311 survives (and is almost the only section that has survived) from the original Act. That breaks the militia into two classes, organized (Guard) and unorganized. Why would the regular army have been part of the militia?

"The militia encompasses every able-bodied male between the ages of 18 and 45. All members of the unorganized militia have the absolute personal right and 2nd Amendment right to keep and bear arms of any type, and as many as they can afford to buy."

No authority cited for this, I notice. In any event, such a right would vanish once a person hits 45.

"The Dick Act of 1902 cannot be repealed; to do so would violate bills of attainder and ex post facto laws which would be yet another gross violation of the U.S. Constitution and the Bill of Rights."

There is no such thing as a statute that cannot be repealed. The bill of attainder clause prevents Congress from convicting people without a trial. The ex post facto ban prevents punishment, or increased punishment, of actions taken before the law in question was passed. As noted above, most of the Dick Act was rewritten by the Army Acts (I think of 1916 and 1920), so it HAS been repealed.

"The President of the United States has zero authority without violating the Constitution to call the National Guard to serve outside of their State borders.

The National Guard Militia can only be required by the National Government for limited purposes specified in the Constitution (to uphold the laws of the Union; to suppress insurrection and repel invasion). These are only purposes for which the General Government the can call upon the National Guard."

Those are the only purposes for which the government can call out the militia. They got around this in the post WWI Army Acts by organizing the Guard as part of the reserve forces of the regular army, etc., and by requiring dual enlistment: any Guardsman also takes an oath to the U.S..

A bit of history: in 1912 the Attorney General indeed ruled that the militia could not be used outside the US. Then came WWI. The government dealt with that ruling by simply drafting National Guardsmen en masse. The Guard didn't care for this: its units were broken up, officers became enlisted men, etc.. So after the War, they were supporters of the system of dual enlistment, so that their units could be called up as units.

Mr. Kopel is research director of the Independence Institute and co-author of the law school textbook, "Firearms Law and the Second Amendment" (Aspen, 2012).

About David Hardy. David T. Hardy has practiced law since 1975 and has five books and thirteen law review articles in print; one of the articles has been cited by the U.S. Supreme Court and eleven of the thirteen U.S. Circuit Courts of Appeals.

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