Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
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By Joe Latwin
Bet you didn’t know that you are, were, or will be in the military. You might have never worn a uniform or swore to defend the Constitution. Nevertheless, military service is, was in your past, or will be in your future!
As I sat through Rye’s Memorial Day program this morning, I heard the speakers’ detail how many Rye folks had served during our nation’s conflicts. That left me wondering how many did not serve. Then, I remembered that before June 14, 1775, there was no U.S. Army. Those were citizens in local militias. Three days later, the Army fought the Battle of Bunker Hill (at Breed’s Hill) outside of Charlestown, Massachusetts.
Know it or not, you probably are in the militia. New York’s Military Law, Section 2 says:
The unorganized militia shall consist of all able-bodied male residents of the state between the ages of seventeen and forty-five who are not serving in any force of the organized militia or who are not on the state reserve list or the state retired list and who are or who have declared their intention to become citizens of the United States, subject, however, to such exemptions from military duty as are created by the laws of the United States.
Are you able-bodied, male, citizen, between 17 and 45 years old, not serving in the military or exempt form service, you are a member of New York’s militia!
This law was added in 1951 so if you are 74 or younger and meet the qualifications, you were in the militia. You don’t get away because you weren’t in New York. There is an identical provision in 10 U.S. Code 246 (a) enacted in 1956 for the federal militia and similar laws prevail in most States.
There are legal questions concerning this law. Much has changed since the 1950s. Does it discriminate against women or disabled individuals by excluding them? Does it discriminate based on age? Now that there is an all-volunteer military, what if you don’t want to be in the militia?
This has other implications. Some have argued that the Right to Bear Arms in the Second Amendment applies to the militia. Does that mean every 17- to 45-year-old male has a right to bear arms as they are members of the militia?
In any event, your service in the militia does not put you in the same class as those who served on active duty or the Reserves until you stand on the Rye Village Green and confront the invaders as did the Minutemen at Lexington 250 years ago. May we never have to do so.
