MILITIA - HISTORY AND LAW FAQ 5/6 version 1.01 July, 1995 3.65 The 1990 U.S. Supreme Court
MILITIA - HISTORY AND LAW FAQ 5/6
version 1.01
July, 1995
3.65 The 1990 U.S. Supreme Court decision of Perpich v. Department
of Defense provides an excellent summary of the history
of the militia from 1792 to the present.
A. The Supreme Court [all excerpts are from 110 S.Ct. 2418] in 1990 held
that Congress may authorize members of the National Guard of the United
States to be ordered to active federal duty for purposes of training
outside the United States without either consent of the state governor or
declaration of national emergency.
The Court, in an unanimous decision, traced the history of the militia
starting at 2422 (footnotes and citations excluded):
"Two conflicting themes, developed at the Constitutional Convention and
repeated in debates over military policy during the next century, led to a
compromise in the text of the Constitution and in later statutory
enactments. On the one hand, there was the a widespread fear that a
national standing Army posed an intolerable threat to individual liberty
and to the sovereignty of the separate states, while on the other hand,
there was the recognition of the danger of relying on inadequately trained
soldiers as the primary means of providing for the common defense.
"Thus Congress was authorized both to raise and support a national Army
and also to organize "the Militia".
"In the early years of the Republic, Congress did neither. In 1792, it did
pass a statute that purported to establish "an Uniform Militia throughout
the United States," but its detailed command that every able-bodied male
citizen [Note that the Court left out the word white, which was not a
change made by Congress until 1862] between the ages of 18 and 45 be
enrolled therein and equip himself with appropriate weaponry was virtually
ignored for more than a century, during which time the militia proved to
be a decidedly unreliable fighting force. The statute was repealed in
1901. In that year President Theodore Roosevelt declared: "Our militia
law is obsolete and worthless". The process of transforming the "National
Guard of the several States" into an effective fighting force then began.
"The Dick Act [of 1903] divided the class of able-bodied male citizens
between 18 and 45 into an "organized militia" to be known as the National
Guard of the several states and the remainder of which was then
described as the "reserve militia" and which later statutes have
termed the "unorganized militia". The statute created a table of
organization for the National Guard conforming to that of the Regular
Army, and provided that federal funds and Regular Army instructors
should be used to train its members.
"It is undisputed that Congress was acting pursuant to the Militia
clauses of the Constitution in passing the Dick Act...
"[I]n 1916 Congress decided to "federalize" the National Guard.
In addition to providing for greater federal control and federal
funding of the Guard, the statute required every guardsman to take
a dual oath - to support the Nation as well as the states and to
obey the President as well as the governor -- and authorized the
President to draft members of the Guard into federal service. The
statute expressly provided that the Army of the United States should
include not only "the Regular Army" but also the "the National Guard
while in the service of the United States" ...
"During WWI, the President exercised the power to draft members of
the National Guard into the Regular Army. That power, as well
as the power to compel civilians to render military service, was
upheld in the Selective Draft Law Cases..
"The draft of the individual members of the National Guard into the
Army during WWI virtually destroyed the Guard as an effective
organization. The draft terminated the members' status as militiamen
but did not provide for a restoration of their prewar status as
members of the Guard when they were mustered out of the Army.
This problem was ultimately remedied by the 1933 amendments to the
1916 Act. These amendments created "two overlapping but distinct
organizations" ...the National Guard of the various states and the
National Guard of the United States.
"Since 1933 all persons who have enlisted in a state National Guard
unit have simultaneously enlisted in the National Guard of the United
States...Upon being relieved from active duty in the military service
of the United States all individuals and units shall revert to their
National Guard status.
"...The Governor [Perpich] does not, however, challenge the
authority of Congress to create a dual enlistment program...
[This means] that members of the National Guard of Minnesota who
are ordered into federal service with the National Guard of the
United States lose their status as members of the state militia
during their period of active duty...
"This change in status is unremarkable in light of the traditional
understanding of the militia as a part-time, non-professional fighting
force. In Dunne v. Illinois (see 3.59 of the FAQ), the Illinois
Supreme Court expressed its understanding of the term 'militia' as
follows:
Lexicographers and others define the militia, and the common
understanding is, to be 'a body of armed citizens, trained
to military duty, who may be called out in certain cases, but
may not be kept on service like standing armies, in time of
peace'. That is the case as to the active
militia of this state. The men comprising it come from the
body of the militia, and when not engaged at stated periods
in drilling and other exercises, they return to their usual
avocations, as is usual with militia, and are subject to
call when the public exigencies demand it."
"Notwithstanding the brief periods of federal service, the members of
the State [National] Guard unit continue to satisfy this description
of a militia. In a sense, all of them must keep three hats in their
closets -- a civilian hat, a state militia hat and an army hat --
only one of which is worn at any one time. When the state militia
hat is being worn, the "drilling and other exercises" referred to
by the Illinois Supreme Court are performed pursuant to "the
authority of training the militia according to the discipline of
prescribed by Congress," but when that hat is replaced by the
federal hat, the second Militia clause is no longer applicable.
"...The second Militia Clause enhances federal power...
... it authorizes Congress to provide for "organizing, arming
and disciplining the Militia". It is by congressional choice that
the available pool of citizens has been formed into organized units.
Over the years, Congress has exercised this power in various ways,
but its current choice of a dual enlistment system is just as
permissable as the 1792 choice to have the members of the militia
arm themselves...
"...Although the appointment of officers "and the Authority of
training the Militia" is reserved to the states respectively,
that limitation is, in turn, limited by the words "according
to the discipline prescribed by Congress." If the discipline
required for effective service in the Armed Forces of a global
power requires training in distant lands, or distant skies,
Congress has the authority to provide it.
"...Moreover, Congress has provided by statute that in addition
to the National Guard, a state may provide and maintain at its own
expense a defense force that is exempt from being drafted into the
Armed Forces of the United States. See 32 U.S.C s.109(c). As long
as that provision remains in effect, there is no basis for an argument
that the federal statutory scheme deprives Minnesota of any
constitutional entitlement to a separate militia of its own."
Those interested in the background to Perpich and the issues of the
increasing federal control over the state militia should read
Patrick Todd Mullins, "The Militia Clauses, The National Guard, and
Federalism: A Constitutional Tug of War", 57 George Washington Law
Review 328 (1988). Recommended as well is the dissenting judgement
of Senior Circuit Court Judge Heaney when Perpich was at the Court
of Appeal Level, at 880 F. 2d 11 (1989, 8th Circuit). Heaney would
have come to a different decision in Perpich.
Part 4. - The Militia Today
-----------------------------
4.1 This section examines the militia and the new militia today. In
many cases, the reasons for the answers given are those spelled out
in Part 3 - History of the Militia in America. This FAQ uses the
term 'new militias' to describe the armed paramilitary groups
that have been forming in the United Statesin recent years. The
term excludes both the National Guard and state defense forces
defined in 32 USCS s.109(c).
4.2 What is the tradition or history that the new militias are
following in embracing the term 'unorganized militia'?
A. No tradition. Little history. The unorganized militia never ever
had any kind of meaningful existence. It is simply a convenient
statutory construct. See the history of the term in section 3 of this FAQ.
The Anti-Federalists of the 1780's who opposed a strong Federal
government spoke of an armed militia indistinguishable from all
the able bodied male citizenry. This militia was to be a great source
of and training ground for republican virtue. They drew upon the
writings of American and British republican theorists for this view.
This universal militia was to be drawn from the local community, under
the leadership of men of rank and substance, and subordinate to local
elected authority.
The Constitution watered down this concept when it gave the federal
government power over organizing, arming and disciplining the militia and
even more so, when it gave the federal government rather than the local
(state) authority control over the militia when federalized. However,
the 1792 Act, as much as allowed for by the Constitution, called for this
universal militia. But the states granted widespread exemptions and
eventually ended compulsory militia duty. Service in the militia became
voluntary and few served. In large part because of the labor strikes
of the late 1870's, the militia was revived once again as the National
Guard. In the 20th Century, the National Guard has increasingly become
part of the armed forces of the United States.
Whatever virtues the National Guard has, it cannot claim the republican
virtue of an armed citizenry, because it is a small self-selected group.
However, at least the National Guardsman is the citizen-soldier acting in
defense of the republic and under elected civilian leadership both state
and federal.
As for the new militia, they have even less claim to be acting out of
some notion that they are serving republican virtue or that they somehow
represent the militia ideal of the Anti-Federalists or the earlier
republican theorists. They are, after all, small self-selected groups,
responsible to no one, following an agenda of their own choosing.
[David C. Williams' article "Civic Republicanism and the Citizen Militia:
The Terrifying Second Amendment", 101 Yale Law Journal 551 (1991) has
an excellent discussion of the universal militia and republican virtue]
4.3 What's the current Federal Law?
A. There is very little Federal law regarding the militia as the
militia. Almost all the law about the militia is in fact law about
the organized militia which is the National Guard. The following
sections from the United States Consolidated Statutes (USCS)
contain most of the federal statute law on the militia as a whole.
10 USCS [Armed Forces]
"311. MILITIA: COMPOSITION AND CLASSES
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age [which deals with
membership in theNational Guard] who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of
the National Guard.
(b) The classes of the militia are--
(1) the organized militia, which consists of the National
Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members
of the militia who are not members of the National Guard
or the Naval Militia."
312. MILITIA DUTY: EXEMPTIONS
The following persons are exempt from militia duy:
(a) (1) The Vice President.
(2) The judicial and executive officers of the United States, the
several States and Territories, Puerto Rico, and the Canal Zone.
(3) Members of the armed forces, except members who are not on
active duty.
(4) Customhouse clerks.
(5) Persons employed by the United States in the transmission of
mail.
(6) Workmen employed in armories, arsenals,and naval shipyards of
the United States.
(7) Pilots on navigable waters
(8) Mariners in the sea service of a citizen of, or a merchant in,
the United States.
(b) A person who claims exemption because of religious belief is
exempt from militia duty in a combatant capacity, if the
conscientious holding of that belief is established under
such regulations as the President may prescribe. However,
such a person is not exempt from militia duty that the President
determines to be noncombatant.
[there are no sections 313-330]
331.FEDERAL AID FOR STATE GOVERNMENTS
Whenever there is an insurrection in any State against its
government, the President may, upon the request of its legislature
or of its governor if the legislature cannot be convened, call
into Federal service such of the militia of the other States,
in the number requested by that State, and use such of
the armed forces, as he considers necessary to suppress the
insurrection.
332.USE OF MILITIA AND ARMED FORCES TO ENFORCE FEDERAL AUTHORITY
Whenever the President considers that unlawful obstructions,
combinations, or assemblages, or rebellion against the authority
of the United States make it impracticable to enforce the laws
of the United States in any State or Territory by the ordinary
course of judicial proceedings, he may call into Federal
service such of the militia of any State, and use such of the
armed forces, as he considers necessary to enforce those laws
or to suppress the insurrection.
333.INTERFERENCE WITH STATE AND FEDERAL LAW
The President, by using the militia or the armed forces, or
both, or by any other means, shall take such measures as he
considers necessary to suppress, in a State, any insurrection,
domestic violence, unlawful combination, or conspiracy, if it-
a) so hinders the execution of the laws of that State, and
of the United States within the State, that any part or
class of its people is deprived of a right, privilege,
immunity, or protection named in the Constitution and
secured by law, and the constituted authorities of the
State are unable,fail, or refuse to protect that right,
privilege, immunity, or to give that protection; or
b) opposed or obstructs the execution of the laws of the
United States or impedes the course of justice under
these laws
In any situation covered by clause (1), the State shall be
considered to have denied the equal protection of the laws
secured by the Constitution.
334.PROCLAMATION TO DISPERSE
Whenever the President considers it necessary to use the
militia or the armed forces under this chapter, he shall,
by proclamation, immediately order the insurgents to
disperse and retire peaceably to their abodes within a
limited time.
President Eisenhower made proclamations under s.333 and s.334
and issued Executive Order 10730 to order into federal service
units of the National Guard of the United States and of the Air
National Guard of the United States within the state of Arkansas
and authorized use of the armed force of the United States to enforce
the court orders desegragating Central High School in Little
Rock, Arkansas. See 1.13 of this FAQ.
In 1962-1963, President Kennedy made similar proclomations and
issued executive orders to federalize units of the Army National
Guard and of the Air National Guard of the States of Mississippi
and Alabama and authorized use of the use of the armed forces to
enforce court desegragation orders.
Note that in the first case, it was the National Guard of the United
States within Arkansas and in the second it was the National Guard
of the State of Alabama or Mississippi. See the National Guard Act,
s. 101, below.
The other 'militia' law concerns the National Guard and is in the National
Guard Act. Section 106 of the National Guard Act authorizes the federal
govenment to pay for the support of the Guard. As discussed in the history
section of this FAQ, the federal government does not have to support
financially or physically provide weapons to the militia.
The federal government, in s. 108, makes the financial support of the
National Guard dependent on the state following the federal rules and
regulations under the National Guard Act.
Section 109 allows states to have a 'state defense force' in
addition to a National Guard. Whether state defense forces are
'militia' or 'troops' is discussed later in this FAQ.
32 USCS [National Guard]
"101. DEFINITIONS
[...]
(3) "National Guard" means the Army National Guard and the
Air National Guard.
(4) "Army National Guard" means that part of the organized
militia of the several States and Territories, Puerto Rico,
and the District of Columbia, active and inactive, that--
(a) is a land force;
(b) is trained, and has its officers appointed, under the
sixteenth clause of section 8, article I, of the Constitution;
(c) is organized, armed, and equipped wholly or partly at
Federal expense; and
(d) is federally recognized.
(5)"Army National Guard of the United States" means the
reserve component of the Army all of whose members are members
of the Army National Guard.
(6)"Air National Guard" means that part of the organized
militia of the several States and Territories, Puerto Rico,
and the District of Columbia, active and inactive, that--
(a) is an air force;
(b) is trained, and has its officers appointed, under the
sixteenth clause of section 8, article I, of the Constitution;
(c) is organized, armed, and equipped wholly or partly at
Federal expense; and
(d) is federally recognized.
(7) "Air National Guard of the United States" means the reserve
component of the Air Force all of whose members are members
of the Air National Guard."
"106.ANNUAL APPROPRIATIONS
Sums will be appropriated annually, out of any money in the
Treasury not otherwise appropriated, for the support of
the Army National Guard and the Air National Guard, including
the issue of arms, ordnance stores, quartermaster stores,
camp equipage, and other military supplies, and for the payment
of other expenses authorized by law.
"108.FOREFEITURE OF FEDERAL BENEFITS
If, within a time to be fixed by the President, a State does
not comply with or enforce a requirement of, or regulation
prescribed uner this title [32 USCS s. 101 et seq.] its
National Guard is barred, wholly or partly as the President
may prescribe, from receiving money or any other aid, benefit,
or privilege authorized by law.
"109.MAINTENANCE OF OTHER TROOPS
(a) In time of peace, a State or Territory, Puerto Rico,
The Virgin Islands, the Canal Zone, or the district of Columbia
may maintain no troops other than those of the National
Guard and defense forces authorized by subsection (c)
(b) nothing in this title [32 USCS] limits the right of a State or
Territory, Puerto Rico, The Virgin Islands, the Canal Zone, or
the district of Columbia to use its National Guard or its
defense force authorized by subsection (c) within its borders
in time of peace, or prevents it from organizing and
maintaining police or constabulary.
(c) In addition to its National Guard, if any, a State or Territory,
Puerto Rico, The Virgin Islands,the Canal Zone, or the
district of Columbia may, as provided by its laws, organize
and maintain defence forces. A defence force established
under this section may be used within the jurisdiction concerned,
as its chief executive (or commanding general in the case of the
District of Columbia) considers necessary, but it may not be called,
ordered, or drafted into the armed forces.
(d) A member of a defense force established under subsection (c) is
not, because of that membership, exempt from service in the armed
forces, nor is he entitled to pay, allowances, subsistence, or
medical care or treatment, from funds of the United States
(e) A person may not become a member of a defense force established
under subsection (c) if he is a member of a reserve component
of the armed forces.
4.4 Article 1, Section 10 of the Constitution states: "No state, shall
without the consent of Congress.. keep Troops..in time of Peace."
Are the militia "troops"? Are state defense forces part of the
militia or are they state "troops" to which Congress has by s.109(c)
consented? How can state definitions of those eligible/subject to
militia duty be sometimes wider than the federal definition?
A. There has been common agreement for more than 200 years that
militia are not 'troops'. The quoting of the Dunne v. Illinois definition
of militia by the U.S. Supreme Court in the 1990 Perpich case (see 3.65)
settles the issue: the militia not 'troops'.
State defense forces were originally created by federal statute during
WWI and WWII to intervene in case of civil disturbance during a time when
the National Guard was called away to active duty. A number of states
currently have active state defense forces; all these groups are authorized
and regulated by state law and are under the political and military control
of the state.
Texas has a Texas State Guard which is forbidden to practice with arms,
but they do wear uniforms and are state chartered, coming under the same
department as the state's National Guard. Oregon has the Oregon State
Defense Force, an all-volunteer group under the same organizational
structure as the National Guard. The OSDF has close relations with the
Oregon National Guard. Illinois, like a number of states, has a dormant
state defense force that must be called into existence by the Governor.
Some of the state militia or state defense force laws include men
and women equally or have an upper age range goes beyond 45 to 50 or 60
in the pool of people subject (or eligible) to do militia service. In
light of the opinion of the Supreme Court in cases such as
Houston v. Moore (see 3.34) or the directly on-point Opinion of the
[Massachusetts] Justices (see 3.53) this expanded manpower pool is invalid.
However, there is no reason why these definitions should be invalid to allow
or require service in the 'troops' of a state defense force.
Considering the history of these forces, states may have rightly
considered them to be 'troops' allowed by the express consent of
Congress. This is Mahon at p.186 discussing WWII:
"The absence of Guardsmen in federal service increased the
danger of sabotage at home. Congress, therefore, as in WWI, authorized
the states to constitute new organizations known as State Guards.
By June 30, 1941, nearly 6 months before war came to the nation,
37 states had done so."
Then along comes 1990 Perpich case, in which the state argues that the
federal government through its actions is taking away the right of a state
to its own militia. The Supreme Court says:
"...Moreover, Congress has provided by statute that in addition
to the National Guard, a state may provide and maintain at its own
expense a defense force that is exempt from being Drafted into the
Armed Forces of the United States. See 32 U.S.C s.109(c). As long
as that provision remains in effect, there is no basis for an argument
that the federal statutory scheme deprives Minnesota of any
constitutonal entitlement to a separate militia of its own."
In the quote above and its footnote, the Supreme Court argues that
state defense forces are state 'militia' formed from the unorganized
portion of the militia rather than 'troops'. However, these views
by the Court, as they were not necessary for the decision are just
obiter dicta and therefore do not set a binding precedent.
Since the 1990 Perpich decision there do not seem to have been any
cases on this issue. A review of the West's National Reporter system
over a number of decades did not find any cases on state defense forces.
Based on the history of these organizations, the 'troops' analysis may
succeed, if the issue ever goes to court. If the obiter dicta of the
Supreme Court prevailed, states could make their definition match the
federal definition or the federal definition of militia membership could
be modified to support the state definitions as required for state defense
forces.
For the purposes of this FAQ this is largely an interesting academic
exercise. Everyone involved in Perpich would agree that state defense forces
and the militia both organized and unorganized are governed completely by
written law.
4.5 Could new militia groups join the state defense forces as units?
A.It is unlikely, but it may happen if there are no laws explicitly
prohibiting such action. Some states explicitly prohibit it.
New Hampshire's State Guard Act states:
"111:14 ENLISTMENT OF CIVIL GROUPS.
No civil organization, society,club, post, order, fraternity,assocation,
brotherhood, body, union,league or other combination of persons or civil
group shall be enlisted in the state guard as an organization or unit."
4.6 I suggest you read the United States Code, that provides for the
"unorganized" militia, which includes "every able-bodied person
between 17 and 45 years of age". Unorganized by the government, but
it does not say we can't organize ourselves. Its still on the books,
so its still legal for us to organize.
A. If there are no laws forbidding such an organization, then you can
organize. Remembering that if you want your "unorganized militia"to be
true to the definition of those subject/eligible for the militia in
32 USCS 311, you must exclude women from your organized "unorganized
militia".
The result of your organization will not be a militia unit. The result
will be a unauthorized voluntary paramilitary organization.
Most states have laws prohibiting or regulating these groups. These laws
have been found constitutionally valid whenever tested. The passage of
these laws by most states shows some common agreement that these groups
are not good.
4.7 Do all states currently have militia laws?
A. Every state has laws regarding the militia. A number of states
have a higher upper age limit for the militia. Most states include women
in the definition of the militia. These different age and sex
definitions are probably not valid as concerns the militia, because of
the federal government under its power to organize the militia has its
own definition. However, these definitions are legal to support
membership in a state defense force under s.109 of the National
Guard Act, assuming that they are "troops" (see 4.2 and 4.3).
4.8 Excerpts from a typical state militia law - New Hampshire
Statute Law of New Hampshire
"110-A:1 COMPOSITION OF THE MILITIA
I. The militia shall consist of all able-bodied residents of the state
who shall be more than 17 years of age and not more than 45 years
of age, ...
II. The militia shall be divided into 2 classes, namely, the organized
militia , which shall be the national guard, and the unorganized
militia.
III. The national guard shall be consist of an army national guard,
an air national guard, and an inactive national guard...
IV. The unorganized militia shall be composed of those classes of
persons described in paragraph I of this section who are not
members of the organized militia, provided, however that those
persons who are lawfully carried upon the state reserve list or the
state retired list shall not be deemed to be a part of the unorganized
militia.
"110-A:3 REGISTRATION AND DRAFT OF UNORGANIZED MILITIA
I. When the governor shall deem it necessary , he may direct
the members of the unorganized militia to present themselves
for and submit to registration at such time and place and in
such manner as he may prescribe in regulations issued
persuant to this chapter."
None of these state laws says anything about authorizing new militia
groups. They simply designate those individuals who belong to the
unorganized militia. This membership confers no rights, responsibilities
obligations, or authority until you are called upon . It is merely the
statement of nominal authority by the government for purposes of military
manpower. Nowhere are there laws stating that the unorganized militia
will have any units, any officers, any training, any equipment, nor that
the governor or anybody else is authorized to accept "volunteer" militias.
The law provide no statutory protection to these groups. [MP/SS]
4.9 Under what circumstances can the state militia be called out?
A. The federal government can only use the militia for the purposes stated
in the federal Constitution.
The state does not have these limitations:
"Generally, the governor of a state has the power to call the National
Guard [militia] to active duty in times of public disorder or danger,
or where there is imminent danger of public disorder or danger, or to
aid the civil authorities in the enforcement of law."
(6 Corpus Juris Secundum s.295).
4.10 Who at the state level can call out the state militia ?
A. This may vary from state to state. The governor of a state is the
commander-in-chief of the militia and generally responsible for its
actions. Other elected or non-elected officials can only call out the
militia through specific state legislation. Some states, such as
Massachusetts, give specific local officials, under special circumstances,
power to call out part of the state militia.
There are no laws anywhere that allows members of the "unorganized militia"
to call out themselves or others because they are members of the
"unorganized militia".
4.11 In what way are new militias responsible to elected
civilian authority?
A. They are not. New militias say they are subordinate to
civilian authority; but that is not true. Not a single new militia
group has its senior officers militarily subordinate to militia
officers appointed by the state. None can show that there is a chain
of command that starts with the governor or the legislature and can
be followed down to one of these groups. This statement, of course,
excludes state defense forces organized under s.109 of the National
Guard Act.
One of the major complaints of the American colonies leadings to the
American Revolution was that the colonies could not exercise political
control over the British military stationed in the colonies. The new
militia, operating outside of political control, seem to want to turn the
clock back to those colonial days.
4.12 Is a valid test of whether an organization is a true militia and
not just a "bunch of guys and gals with guns" the fact that they
recognize the authority of their governor to call them up for
training or in case of an emergency? And if they recognize the
authority of the governor to call them up, do they also recognize
the authority of the President to call them up in case of "unlawful
obstructions, combinations, or assemblages, or rebellion against the
authority of the United States..."
A. No. It is not a question of groups looking up to government, but
rather the state operating under its laws and the federal laws creating
militia units and giving officers and enlisted men the status of being a
member of a militia unit.
4.13 The new militia groups have sworn allegiance to the federal
and state constitutions, and some, like the Texas Militia and the
San Diego Militia, were established working closely with civilian
and law enforcement authorities. This must mean something.
A. It means that the new militia movement has friends and supporters in
and out of government. However, unless the group meets the requirements
of the U.S. Constitution, federal and state law, they cannot be a militia
unit.
4.14 New militias often say that the sheriff of a county has some
special rights or privileges regarding the militia. For example:
"I am pretty sure that a [new] militia must inform the country
sherrif of their existence and that they serve the sherrif
when asked. So a [new] militia is a militia if it forms with
the knowledge of the county sherrif (highest ranking *elected*
law officer in the county). And has as a mission preserving the
rights of *all* as stated in the Constitution of the US."
A. In Northern states, the historical militias were rarely organized county
by county. In Southern states, the county was a very important level of
militia organization. However, in neither the North nor the South was
the historical militia subordinate to the sheriff of the county, except as
explicitly provided by colonial or state law.
In Chapin v. Ferry, 28 Pacific Rptr. 754 (1891), the Supreme Court of
Washington noted how careful states were in delegating any power over the
militia. At p. 756:
"It is pointed out to us that by the statutes of certain states - as
Massachusetts,Iowa, and California [there is power for magistrates and
peace officers] ... to summon the officers of military organizations
composing portions of the state militia within their jurisdiction to
assist them in keeping the peace and executing the law; but full
examination discloses that in each instance the authority thus conferred
is expressed in precise and unequivocal language, and is hedged about with
such formal safeguards, as, under the perilous circumstances justifying
such a use of the military, must to every one seem absolutely necessary...
[I]n several others, sheriffs and other peace officers are expressly
authorized to call out the military within their jurisdictions, without
previously communicating with the governor, who is invariably the commander
in chief. The military, under our government system, in all ordinary cases
is kept in strict subordination to the civil power... Hence the highest
executive of the civil power [the governor] is invested with supreme
command of the army of the state [the militia], to be held by him as a
reserve for use only when the civil power shall be about to fall without
its assistance...It would seem to be an awkward state of affairs that a
justice of the peace or the mayor of a city should suddenly assume control
of a company or regiment of troops, without previous notice to or order
from their superior officer; and we observe that wherever such is the
law it is provided that immediate notice of the calling out of troops
shall be sent to the governor."
Some states, by statute, still give local officials such as sheriffs the
ability to call out the militia in very limited circumstances. However,
this power has nothing to do with the sheriff's status as the "highest
ranking *elected* law officer in the county." The state could just as
well delegated the power by statute to state judges (as was done in
New York). Accordingly, this delegration of power to the county sheriff
provides no support for the "county sovereignty" movement which is the
source of the views expressed in this question.
4.15 How do you explain the New Hampshire law that protects their citizen
militia?
A. There are no laws that protect the new militia. The laws
always relate to the National Guard or to the state defense force.
New Hampshire is one of many states that has laws against
unauthorized paramilitary organizations.
4.16 What is the militias existence or status when not summoned by a
governor or the President? Does it somehow evaporate conveniently?
A.If you're referring to the "unorganized militia" it always
continues, doing the duties required of it by statute -- none. If you're
referring to the organized militia (the National Guard) or state defense
forces they also do whatever is required of them by law.
4.17 Militia members are expected to train on their own, with their own
weapons, so they would be ready to defend against all enemies,
foreign or domestic.
A. No. Militias are organized, disciplined armed force. They were
expected to form part of the nation's armed forces when needed in time
of emergency. That means that each militia's training and discipline
had to be compatible with other militia units and the other armed forces.
In 1792 and today that means following a specified training procedure.
Nor was it ever good enough for the militia to train with just any weapons.
Even in 1792, federal law set some standards for weapons. Section 1 of the
Uniform Militia Act stated "all muskets for arming the militia as
herein required, shall be of bores sufficient for balls of the
eighteenth part of a pound".
Similarly, the organized militia of today do not train with whatever
weapons its members happen to own.
4.18 The federal government does have rights to organize and equip the
militia. Because the federal government has neglected its rights
in this area regarding the "unorganized militia" does not mean the
unorganized militia all of a sudden don't exist. I challenge the
federal government to start regulating and equipping the [new]
militia.
A. The federal government has organized and passed laws on the militia.
These laws represent political decisions. Political decisions have been
made about the "unorganized militia" which have taken the form of law in
the National Guard Act and the Armed Forces Act. Without a change in
these laws, the federal government cannot organize the the "unorganized
militia".
Today's laws can be changed through the processes allowed for under the
Constitution. Congress can repeal the existing legislation and enact new
legislation. The 1792 Uniform Militia Act (with some minor modifications
to allow all males and not just whites to serve) could again be the law of
the land.
4.19 Doesn't the state have an obligation to train the "unorganized
militia".
A. No. The state makes its own judgements as to what training is
required. The case of Hamilton v. Regents 293 U.S. 245 (1934) involved
university students who wanted exemptions from mandatory courses
in military science. The U.S. Supreme Court noted that other states
had made the same courses optional. The Court upheld the requirement
and in doing so stated at p. 260:
"Undoubtedly every state has authority to train its able-bodied male
citizens of suitable age appropriately to develop fitness, should any
duty be laid upon them, to serve in the United States Army or in state
militia (always liable to be called forth by federal authority to execute
the laws of the Union, suppress insurrection or repel invasion],...or
as members of local constabulary forces, or as officers needed
effectively to police the state...So long as its action is within
retained powers and not inconsistent with any exertion of the authority
of the national government, and transgresses no right safeguarded to
the citizen by the federal Constitution, the state is the sole judge of
the means to be employed and the amount of training to be exacted
for the effective accomplishment of these ends. Second Amendment.
Houston v. Moore, 5 Wheaton 1, 16-17. Dunne v. People (1879)
94 Ill. 120, 129 . 1 Kent's Commentaries 265,389. Presser v.
Illinois 116 U.S. 252."
In the case of the unorganized militia, states have generally
determined that no training shall be done.
4.20 It has been argued that the Ninth Amendment supports the right of
individuals to create "unorganized militia" units.
A. The Ninth Amendment reads:
"The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people"
There have been very few times when the Ninth Amendment has been
held to support some additional rights. The most well known and
controversial are its use to support a right of privacy in cases such as
Griswold and Roe v. Wade. When the Ninth Amendment is used in the strongest
statements by its supporters on the U.S. Supreme Court, such as Justice
Goldberg in Griwold v. Connecticut, 85 S. Ct. 1678 (1965), 1686, there
are standards that must be met. The right complained of must be:
" of such a character that it cannot be denied without violating those
'fundamental principles of liberty and justice which lie at the base of
all our civil and political institutions'."
It is impossible to believe that the right to create "unorganized militia"
groups meets this standard.
In any case, the Ninth Amendment was adopted in 1792. The "unorganized
militia" is a statutory definition that was first adopted by Massachusetts
state law in 1840. Federal law did not mention the unorganized militia
until the 20th Century. It is a little bizarre to see how somehow there
is suddenly a "right" by people to, of their own volition and under no
authority, to officer and train this statutory creation of Congress
which was totally unknown at the time of the adoption of the Ninth
Amendment.[MP/SS]
4.21 Doesn't the 10th Amendment give individuals' rights over the militia?
A. The Tenth Amendment reserves powers to the people that are not already
delegated by the Constitution to the United States or the individual states.
The Tenth Amendment states:
"The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people."
Powers regarding the militia are delegated explicitly and fully in Article
I, Section 8, paragraphs 15 and 16 between the United States and the
individual states . In 1820, the U.S. Supreme Court stated in Houston v.
Moore, 5 Wheaton 1,20 :
"It may be admitted, at once, that the militia belong to the states,
respectively, in which they are enrolled, and that they are subject, both
in their civil and military capacities, to the jurisdiction and laws of
such state, except so far as those laws are controlled by acts of congress
constitutionally made".
Accordingly, however the militia are not governed by federal law, they are
creatures of state law. To the extent that the 'unorganized militia'
exists it is part of the militia and is governed by either state or
federal law. Period. Communities and individuals have no authority at all
over the militia save what the federal and state governments decide to
give them.
4.22 The federal and state governments may control the organized militia;
but not the "unorganized militia". The unorganized can be called up
for duty, but until then what they do is their own business.
A. What the unorganized militia do is their own business, unless they do
it under the auspices of being in the militia. If I were a federal
employee, I could have any opinion I chose or do anything I want in my own
time. However, were I to say that my opinions were the opinions of the
federal government, or were I to say that the actions I did in my own time
were actions of the federal government, I would be wrong.
Similarly, the fact that much of the militia is unorganized does not give
anybody the right to say that what they are doing is under the auspices of
being in the militia. The mere fact that they are in the unorganized
militia means that such actions are NOT supposed to be going on, because
the unorganized militia was _designed_ to have no activities or
responsibilities.
There is only one set of state militias, and that is the set organized by
Congress according to the Constitution. Nobody can get together and call
themselves a "militia." If Jefferson federalized the entire New York
Militia (!), then it would _still be_ the New York Militia, only
temporarily operating under the authority of the federal government.
Anybody not in the New York Militia could not with any sort of authority
form _another_ militia.[MP]
4.23 What about the Athens, Tennessee militia of 1946? The people of
Athens, McMinn County, Tennessee in August, 1946 exercising
their rights as individuals, formed a militia, and overthrew a
vicious and corrupt county government.
A. They aren't a militia. In 1860-something, the people of Virginia City,
Montana, organized, and ambushed and hanged the very corrupt sheriff.
They didn't call themselves a militia. They were a "vigilance committee."
This happened at numerous places in the early days of the gold rush.
In none of these cases did the vigilantes call themselves anything but that
--they were certainly not "militia." They were more concerned about
distinguishing themselves from a lynch mob, and they disbanded as soon
as they had dispatched the villain (rather legalistically--they held
trials) and legitimate law enforcement--a federal marshal in most cases--
was in place.
4.24 What are the powers of the state over the creation and disbanding of
their militia units? The constitution of my state doesn't specify any
power to disband a mlitia unit.
A. Assuming a purely state militia is created, then it could be disbanded
whenever the state chose. There are entire books of records in the
Massachusetts Military Records Office (which may have since changed its
name) relating to the disbandment of volunteer militia companies. As to
the Constitution of a state, creating and disbanding units is a routine
part of state authority; otherwise, you could end up with units that
through attrition or otherwise, contained only one soldier, yet still
constituted a "unit." [MP]
4.25 But surely there is some way, we, the unorganized militia in Michigan,
can get authorization by the governor?
A.Being unaware of the current Michigan statutes I cannot post a
_definitive_ answer, but I can provide one which is probably accurate.
What you propose to do would not establish legitimacy of itself, because
the governor is probably not authorized by the state legislature to accept
self-organized groups into a state militia structure. If the Michigan
statutes are similar to those of other states, and I suspect they are, it
is _not_ possible for the unorganized militia to _lawfully_ train, because
the whole purpose of _creating_ the unorganized militia was so that it
_wouldn't_ train. Therefore, the state legislature would have to specify
that the unorganized militia can, in effect, organize itself and train
itself, and that the governor is authorized to accept their services.
This procedure would thus change the nature of the unorganized militia and
also give the governor authority similar to that given to most pre-Civil
War governors in terms of accepting the services of volunteer militia
groups." [MP]
E-Mail Fredric L. Rice / The Skeptic Tank