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Dick Act: A Legal Perspective


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I've been receiving email asking about the Dick Act and its applicability in our fight to preserve the Second Amendment. I turned the question over to a very trusted source I've relied on over the years for just such issues. My resource has access to multiple legal databases and references which I do not, is a highly respected, exceedingly well versed and intelligent legal mind of high standing. A gun owner and constitutional conservative---in other words, he's on the pro-constitution side. Due to his official position however, his opinions are provided on condition of non-attribution which I've respected throughtout the years. Bottom line: take my word for it, this man is reliable and knows of what he speaks.

 

CD

 

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"The Militia Act of 1903 was also known as the Dick Act in honor of Senator (and
National Guard Major General) Charles W.F. Dick. It's purpose was to remedy
deficiencies in the performance of militia troops during the Spanish-American
War (where militia units looked pretty bad compared not only to Regular Army
Units but even Volunteer units like Roosevelt's Rough Riders). Restrictions on
the use of militia as private armies for governors together with restrictions on
federalization were offset by Federal funding and training requirements.
(Keeping the citizen soldiers at a acceptable level of readiness has been a
constant problem. Some National Guard units have gone to war ready to kick
tail and take names while others, well, not so much).


Allegedly, the act defines every able-bodied male between 18
and 45 as members of the unorganized militia and, supposedly, gives such
militiamen the absolute right to purchase, keep and bear whatever arms they
desire. There is a small problem that the Act doesn't say anything of the
sort and its militia defining provisions have been amended substantially after
both World Wars.


The applicable legal authorities contain nothing, as in zip and nada, indicating
that able bodied militiamen are excused from compliance with gun control laws, a
fact that surely somebody accused of a fire-arms related offense would have
mentioned in the last 111 years if there was an iota of a chance of beating the
rap that way. I found no case law, law review articles, or even professional
commentary suggesting such a thing. As a response to contemporary Second
Amendment infringements, the Dick Act appears to be wishful thinking."


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Could you go back and ask him if there is anything that prohibits an "able-bodied male between 18 and 45" from purchasing military grade hardware? Especially in light of the 9th & 10th amendments. Just looking at it from a different angle. Too many people, lawyers included, look at what is specifically allowed rather than what is prohibited.

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Response to Joe's question:

 

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There does not appear to be anything in the Dick Act that directly relates to the purchase of weapons, military grade or otherwise, by the people defined as members of the unorganized militia.

 

The Act does indicate that after being called into the armed service of the United State, the militiaman is subject to the same rules as other members of our Armed Forces. Arguably, that might include the rules governing the private acquisition and transportation of personally-owned weapons. However, nothing in the Act appears to change the rules regarding the acquisition of firearms prior to being called into active service.

 

Secondly, it appears that Governors can requisition military grade weapons for use by militiamen called into active service. However, the Act is very clear that the weapons remain the property of the United States.

 

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Thanks for the update, Dan. I should have thought to throw in part of the Miller Decision too:

 

"The significance attributed to the term Militia appears from the
debates in the Convention, the history and legislation of Colonies and
States, and the writings of approved commentators. These show plainly
enough that the Militia comprised all males physically capable of acting
in concert for the common defense
. 'A body of citizens enrolled for
military discipline.' And further, that ordinarily when called for
service these men were expected to appear bearing arms supplied by
themselves and of the kind in common use at the time."

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