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Two, Three—Many Well-Regulated Militias

Remedies are available to communities that are unhappy with policing quality. 

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Credit: Dmitry Kalinovsky

There’s never a cop around when you need one, goes the adage; judging from the cross-complaints by various racial and ethnic groups against each other these days, the old saying must be true.

While President Joe Biden has said that white supremacist terrorism is the deadliest threat to the United States, Asian-Americans might differ. In 2023 so far, there have been 2,500 reported incidents of black-on-Asian crime in the United States, both “hate” and the garden-variety kind. Asian women were victims in 60 percent of the cases, and 80 percent of the perpetrators were black males.

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In 2022 the Anti-Defamation League recorded the most incidents of assault, vandalism and harassment of Jews in its 110-year history. While there were fewer similar incidents against Arabs, Muslims, and Sikhs (often mistaken for Muslims), the number (431) was still significant. Indian-American convenience store owners are victims of both break-ins and shoplifting that police in Jersey City’s “India Square” neighborhood say they can do nothing about.

Meanwhile, it is widely believed that black men are disproportionately the victims of police violence, although the facts tell a different tale; in 2021, those who described themselves as “liberal” or “very liberal” overwhelmingly thought that between 100 and 10,000 unarmed black men were fatally shot by police that year, when the actual number was—29.

With this wide disparity in views, it is perhaps time to consider a variation on the Daniel Patrick Moynihan quip, “Everyone is entitled to their own opinion, but not to their own facts.” If a one-size-fits-all police force doesn’t work for every racial and ethnic group, how about bespoke gendarmes, cut to the measurements of the neighborhoods and populations they cover?

In other words, shouldn’t every group be entitled to its own militia, but not to their own police? The idea isn’t so far-fetched as it seems, and even has legal and historical precedent to support it.

Contrary to the view that there is only one militia in the United States—the National Guard—the states have the power to recognize companies on their own, and some do. In Massachusetts, the Ancient and Honorable Artillery Company was chartered by the state legislature in 1638 and remains in existence today. Massachusetts also recognizes what it refers to as the “unorganized militia,” which is comprised of “all able-bodied citizens and all other able-bodied persons who have declared their intention to become citizens.” They can be called into service in times of war, invasion, threats to homeland security and “assisting civil officers in the execution of the laws.” 

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The latter function is a vestige of English common law that dates from the ninth century, when an official responsible for keeping the peace would assemble a group referred to as the posse comitatus (from the Latin for “power of the county”) to respond to an emergency, such as a riot or the pursuit of a criminal. The practice was formalized by the Statute of Winchester in 1285, which “preserved and codified well-tried features from earlier systems, and in particular...reaffirmed the principle of local responsibility for policing,” according to T.A. Critchley’s A History of Police in England and Wales. That law made it “a duty of everyone to maintain the King’s peace, and it was open to any citizen to arrest an offender.” If an “offender was not caught red-handed, hue and cry was to be raised.” This latter term referred to an ancient Saxon practice that required all able-bodied men, upon hearing the outcry of the constable or a private citizen who witnessed a crime, to join in pursuit of the suspect until he was apprehended and delivered to the sheriff. (Kyle Rittenhouse had more than a little history on his side during civil unrest in Kenosha, Wisconsin in 2020, when he shot three men, two fatally, despite the media consensus that he would be found guilty of homicide and other criminal charges.)

The states of which our republic is composed share their monopoly police powers only grudgingly, however, and sometimes refuse to do so for prejudicial reasons. In the years leading up to the Civil War, a Massachusettsian Irish-American militia company—the Emmet Guard—was disbanded by Governor Henry Gardner of the nativist and anti-Catholic Know Nothing party; “Put none but Americans on guard!” was the Know Nothings’ rallying cry. The company continued on its own as an independent self-supporting militia, and offered their services to President Lincoln, who accepted. They were added as Company C to the Massachusetts Third Battalion of Rifles in 1861 and fought with distinction at Annapolis, Maryland, during the “early days of gloom and trouble” for the Union; they continued to serve after their term ended. 

The inadequacy of publicly-constituted police forces to protect American citizens can be traced to several sources: efforts to defund the police and transfer resources to softer approaches such as the “holistic model of public safety” proposed by the Minneapolis City Council, which failed by a 56.2 to 43.8 percent vote in November of 2021; the low esteem and high risk that comes with the job of law enforcement; and pressure on municipal budgets generally.  Regardless of the cause, the current public safety shortfall casts man back into that state of war described by Thomas Hobbes, when men “live without a common power to keep them all in awe,” and life is “solitary, poor, nasty, brutish, and short.”

Private militia companies would of course have to remain subject to the ultimate authority of the states that chartered them, but that would lead to the end long desired by those who want to read a right of personal self-defense out of the Second Amendment; well-regulated militias, with training in firearms safety; non-lethal weapons or properly licensed lethal weapons; and background checks for personnel.   

With that sort of civilian force patrolling Asian, Jewish, Indian, and other neighborhoods whose residents are more likely to be victims of violence than perpetrators, those who must defend themselves in the absence of the ordered liberty that is supposed to be guaranteed by their governments might stand a fighting chance.

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