South Carolina Unorganized Militia And Assault Weapons
BY Herschel Smith
11 years, 9 months ago
As a warning shot over the bow, South Carolina is poised to take action to protect the rights of its citizens.
Congratulations, you are a member of South Carolina’s “unorganized militia.” Now that you know that, state Sen. Tom Corbin, R-Greenville, wants to make sure you have access to guns in case the governor ever calls on you to defend the state.
Corbin has proposed a new state law — unanimously approved Wednesday by a Senate subcommittee — that would guarantee all members of the unorganized militia “shall have the right, at his own expense, to acquire, possess, keep, and bear all firearms that could be legally acquired or possessed by a citizen of South Carolina as of December 31, 2012.”
Translated that means — barring an almost certain constitutional challenge if the proposal becomes law — you can buy an assault weapon, regardless of whether the federal government bans them, as President Barack Obama and others have proposed.
The proposed law is based on a state law, dating back to 1881, that refers to an “unorganized militia” made up of “all able bodied persons over 17 years of age.”
“All of us here can sit back and go, ‘Finally, I don’t have to worry about giving up my shotgun or giving up my Ruger pistol or whatever. It’s over,” Corbin said. “This bill just simply says it is now part of our unorganized militia’s weaponry, therefore it is protected. … It can’t be changed by anyone outside of South Carolina.”
We had previously discussed this as a possibility, but it’s good to see that this had the unanimous support of the Senate subcommittee. Perhaps it will pass with ease. But wait, pointy-head has to get involved.
Nice try, but it won’t work, said Thomas Crocker, an associate professor of law at the USC School of Law who specializes in constitutional law.
It is true, Crocker said, that South Carolina can specify weapons for its unorganized militia — a concept dating back to the 18th century, when states did not have modern police forces or National Guards. States then had laws requiring everyone to own a musket and be ready to fight against outlaws or attacking Native Americans.
“The trick is if the federal government enacts an assault-weapons ban, making it illegal to have the AR-15, that will trump automatically any state law,” Crocker said. “It doesn’t matter if the state statute says that is an approved weapon. It is an illegal weapon under federal law and federal law trumps.”
Really? Is it just that simple? The federal government can pass any law imaginable and it trumps state laws regardless of any other considerations? Perhaps pointy-head has been educated beyond his intelligence level. He may be smart, but he doesn’t have a lick of common sense and he doesn’t know the very state in which he works. I do.
Here’s a suggestion, send some federal agents to Pickens, Travelers Rest and Marietta, and up around the Jocassee Gorges, Devil’s Fork and Gap Creek areas to collect guns – that is, after you get all of the local Sheriffs to cooperate with you. Write me a note and tell me how that goes.
On February 14, 2013 at 4:20 pm, Ben said:
You forgot to mention spartanburg.
On February 14, 2013 at 4:37 pm, Herschel Smith said:
It actually crossed my mind, Ben.
On February 14, 2013 at 11:18 pm, Tim said:
“It doesn’t matter if the state statute says that is an approved weapon. It is an illegal weapon under federal law and federal law trumps.”
The Supremacy Clause only applies to laws made in pursuance of the Constitution. If the AWB is unconstitutional, then no, it does NOT ‘trump’ State law.
Article VI, section 2 of the U.S. Constitution, reads: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.”
On February 16, 2013 at 9:33 pm, amr said:
Unfortunately, all laws and Executive Orders are de facto constitutional which means the federal government can enforce them until the courts decide they are unconstitutional. People talk about nullification, but that doesn’t work if DHS goes out on their own to enforce the law. The question is will local law enforcement assist or just stand aside, will the courts issue a stay on federal enforcement and will this President acquiesce to the courts if overruled.
President Jackson forced the removal of Native Americans from Western Georgia and the Trail of Tears resulted with over 400 dying after a law allowing it was declared unconstitutional by the SCOTUS. Note that popular President Jackson was not impeached and I suggest, nor would this President.
So the gun control law would probably be enforced, some would resist and thus give legal standing for a court challenge and if Obama lost in court, would he cease and desist. I doubt it, and then citizens would have to make up their minds if the 2nd American Revolution was necessary.
On February 19, 2013 at 9:39 am, Frankie said:
No, again you fail to see the significance of State law. The governor would by law be forced to uphold his State Legislature’s law and actively prevent Federal enforcement of an AWB in his State until such time as the Federal courts attempt to strike down the State law. In order to do that the Attorney general of the State would have to initiate an appeal to the SCOTUS on behalf of the State and I believe the NC State supreme court could issue a STAY of execution of the Federal law by State Law Enforcement until such time as the SCOTUS ruled. Na nah na Nah naaaaaaaaaaa.
On April 4, 2013 at 7:07 pm, Rocky said:
Don’t forget about the Federal ‘Militia Act’ oc 1903, I believe, that makes anyone of Draft age (17-45?) as well as former military vets up to age 64, automatically members of the Unorganized Militia, as well. It should have some bearing, as well.