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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, an amendment removed the language that had restricted federal 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The old militia statutes were repealed and replaced by the Militia Act of 1903, 32 Stat. 775, commonly known as the ‘‘Dick Act’’ for its sponsor Representative Charles W.F. Dick, a Major General in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 Naval Militias maintained by some states. 10 U.S.C. §311(b)(1).
The Dick Act also defines the ‘‘unorganized militia.’’ The unorganized militia is all able-bodied men between 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 U.S.C. §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 very 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 email is being circulated, which claims that the Dick Act absolutely prohibits any form of gun control for men 17-44. Further, the email asserts, preposterously, that the Dick Act is unrepealable, because repeal would violate the Bill of Attainder and Ex Post Facto clauses. David Hardy deconstructs this email 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 emails such as this are, objectively speaking, helpful to gun prohibitionists. To the extent that pro-rights activists mistakenly rely on the email, 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 vast array of repressive laws which are being pushed in Congress and the state legislatures, some 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.
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