Anti-Defamation League Online Homepage    ADL Home |  Militia Watch Dog Archive Home |  Law Enforcement |  Search |  About |  Contribute

 

MILITIA - HISTORY AND LAW FAQ

Web Version 2.1

Last Updated November 6, 1995


Part 1. - Introduction & Summary Material
Part 2. - QUICK REFERENCE AND LIST OF QUESTIONS ANSWERED
Part 3. - History of the Militia in America
Part 4. - The Militia Today
Part 5. - Legal Issues for the New Militia
Part 6. - Afterword by Mark Pitcavage


Part 1. - Introduction & Summary Material


1.0 Read this First

This FAQ is quite long and some of the language and concepts are (especially in the court cases) specialized or archaic. The first-time reader is advised to read through Part 1 completely before going on. A list of all the questions in the FAQ can be found in Part 2.

1.1 Definition of New Militia

This FAQ uses the term "new militias" to describe the armed paramilitary groups that have been forming in the United States in recent years. The term excludes the National Guard and the state defense forces defined in 32 USCS s.109(c).

1.2 Copyright

Copyright (c) 1995, Sheldon Sheps and Mark Pitcavage, all rights reserved.

This FAQ may be posted to any USENET newsgroup, on-line service or BBS as long as it is posted in its entirety and includes this copyright statement. Similarly, non-profit hardcopies of this FAQ may be made as long as it is reproduced in its entirety, includes this copyright statement and is not included in commercial collections or compilations.

This FAQ may not be distributed for financial gain. This FAQ may not be included in commercial collections or compilations without express permission from the author.

Sheldon Sheps
juggler@interlog.com
Toronto, Canada

Mark Pitcavage
sparky@adl.org
Columbus, Ohio

1.3 What does [MP] at the End of an Answer mean?

This FAQ is an outgrowth of a thread on the Militias and the Constitution in some of the Usenet newsgroups. Much of the historical information and interpretation comes from Mark Pitcavage, a historian of the militia. His Ph.D. dissertation was An Equitable Burden: The Decline of the State Militias, 1783-1858; it should be available through interlibrary loan in the near future . He has published in a variety of places, including The Reference Guide to U.S. Military History, The James Madison Encyclopedia and the forthcoming War of 1812 Encyclopedia. His first article on the militia was Ropes of Sand: Frontier Militias, 1801-12 in The Journal of the Early Republic (Winter 1993) and his second is "Burthened in Defence of Our Rights": Opposition to Military Service in Ohio in the War of 1812 in the Summer/Fall 1995 issue of the journal Ohio History. He has presented scholarly papers at the U.S. Army Center of Military History, the Northern Great Plains History Conference and the Society for Historians of the Early American Republic annual conference.

His specific contributions to this FAQ are identified by [MP] at the end of an answer. He can be reached at sparky@adl.org. He maintains a World Wide Web Page.

1.3a Who is Sheldon Sheps?

Sheldon Sheps is a Canadian who has long followed American right-wing/populist movements. After the April 1995 Oklahoma City bombing, he came across Mark Pitcavage's postings on the history of the American militia and decided they deserved to be incorporated into a FAQ. Sheps did the original compilation of the FAQ and the legal research. He has B.A. and LL.B. degrees from the University of Toronto.

His e-mail address indicates one of his hobbies. He is living proof that almost anyone can learn to juggle. He has taught hundreds of people to juggle. Sheps is a member of the Toronto Jugglers Club and a Life Member of the International Jugglers Association. Those interested in juggling can find lots of information in the rec.juggling newsgroup or on the World Wide Web.

1.4 Other Acknowledgments

Some of the other contributors to the thread and this FAQ, although they may not necessarily agree with the contents are:

John J. D'Amato, Steve Crocker, 3arb@qlink.queensu.ca (Andy), adelling@ucs.indiana.edu, James Jennings, David F. Prenatt Jr., Jon_Hendry, Charles C. Anesi, Ken Barnes, Robert Tundra, jondw@ix.netcom.com, Riley M. Sinder, Mark Venema, Barbara O'Brien, John Roland, Thomas B. Cox, Michael R. McAfee, Julie Cochrane, Ted Frank, Scott Malcolmson, John W. Engel, Carl Haggard & prcdcf@aol.com.

If I've left anyone out, or there are corrections, or you want your name dropped, please send e-mail.

1.5 Availability of this FAQ

The FAQ should start showing up in news.answers and wherever news.answers is archived in a few months. The overloaded FAQ gods have a substantial backlog. The FAQ will be regularly posted to misc.activism.militia. It will be separately posted to talk.politics.guns, alt.conspiracy, talk.politics.libertarian, alt.society.sovereign,alt.society.revolution, alt.politics.usa.constitution, alt.politics.reform, alt.society.resistance, and alt.revolution.counter with follow-ups directed to alt.conspiracy.

It is also available by WWW at .

If you would like to archive this FAQ on anonymous ftp or on a WWW page, please e-mail for permission.

1.6 Dedication

This FAQ is dedicated to Ken McVay whose incredible efforts in creating an electronic archive of information on the Holocaust inspired me to spend the time, effort and money needed to create this FAQ. You can find his work by FTP at ftp.almanac.bc.ca or on the Web at http://www.almanac.bc.ca. --Sheldon Sheps

It is also dedicated to those men, women and children who died at Oklahoma City in April 1995. --Mark Pitcavage

1.7 Foreword by Sheldon Sheps

This FAQ was created to weaken the new militia movement by providing an accurate description of the history and law of the American militia. It is an antidote to the politcally motivated butchery of history and misinterpretation of law by the new militia.

The political motivation of this revisionism can be gleaned from a magazine article by Mack Tanner ("Extreme Prejudice," Reason Magazine, July 1995, 43-50). Tanner writes:

"To understand what the militia movement is talking about, one needs to understand a bit of federal law. While most of us never think about it--or even know about it--every American male spends 28 years as a member of the militia, whether he wants to belong or not. United States Code, Title 10, Section 311, describes the militia of the United States as consisting of all able-bodied males at least 17 years of age and under 45 years of age. If we are not members of the National Guard, then we are, by law, members of the unorganized militia who can be called to service at any time by the appropriate legal authority. Any two or more American men can therefore claim to be an association of members of the unorganized militia, just as they might be an association of voters, taxpayers, parents or citizens."

Let's examine what's wrong with this quotation. First, the "unorganized militia" are not like other groups, since the others are voluntary organizations without legal status or statutory responsibilities. The "unorganized militia" is a creation of statute law and a part of the state militias. State militias are a hierarchical form of military organization under civilian political control--hardly a group that bears comparison to the P.T.A. or the League of Women Voters.

Second, Tanner never mentions (and is probably unaware of) the history of the term "unorganized militia," which this FAQ discusses in great detail. The concept was invented in the 1830s by state governments. Federal law first used the term itself in 1903. Since that time, through riot and war, the unorganized militia have never been called to service. It's very unlikely they ever will serve. Tanner also ignores the fact that the "unorganized militia" was a term invented to allow individuals to escape from compulsory militia duty.

Why has the new militia movement distorted the history of the American militia? In my view, it has been done to gain supporters who otherwise would have stayed away. For example, Tanner argues that the largest part of the new militia movement represents a new phenomenon. He describes them as:

"The armed, but legitimate, political activists. This is a new phenomenon, at least in this century. These are socially successful people who respect and obey the law, but who are organizing and arming themselves because they fear they may be attacked by agencies of their own government." (p. 44)

Tanner also notes that these individuals often believe in conspiracy theories. Common to many of these theories is their claim to find the truth in information that the government doesn't want you to know. What could be better than finding the "truth" about the militia in little-known laws?

As Mark Pitcavage discusses in his Afterword, these individuals do not approve of modern American society or its government. They want to return to the good old days of George Washington and Thomas Jefferson, Lexington and Concord, the true Constitution, the good old laws.

Watch how it all comes together; the concern for law and order, the belief in hidden knowledge and the yearning for the good old days. For these individuals and their supporters, using the term "unorganized militia" is a brilliant move. The word "militia" alone conjures up historical images. However, the term "unorganized militia" does much more. If anyone questions the legitimacy of forming new militia units, you just quote Title 10, Section 311, of the United States Consolidated Statutes. You read out the definition of "unorganized militia." That's us, you say, and either state or imply that the definition means that citizens may/should/must form their own militia.

Thus these interpretations of "militia" and "unorganized militia" mesh perfectly with the preconceived notions of these people. The payoff from these interpretations is to create an illusory legitimacy for these groups. I have no doubt that their constant citing of 10 USCS 311 creates support for the new militia and makes members more comfortable. This FAQ will make them a little less comfortable.

1.8 Areas of Agreement and Controversy

History

The history of the militia presented here is very much the standard history of the militia as presented in modern histories of the militia available in most large public or university libraries. However, it is not a well-rounded history of the militia inasmuch as it concentrates heavily on institutional and constitutional issues.

One charge made against modern history books and modern historians is that they are distorting the history with present day views. In the case of the militia, as far as this FAQ is concerned, the views expressed here would be very similar to the views of historians and commentators of the time.

Moreover, much of the information in this FAQ is provided by contemporary views on the militia by non-historians that are readily available for confirmation by the reader. This is done by extensively quoting from the major court cases on the militia from as early as 1820 to the latest in 1990. Often, this FAQ is not concerned with the actual ruling of the court, but rather how the decisions of the courts show a common and continuing agreement about the meaning and history of the militia.

The cases, statutes, and law review articles cited here should be available to the public in the law library of any American (or Canadian) law school.

There are, of course, some controversies over the interpretation of events, but at the level we are discussing in this FAQ, the agreement is very broad.

As to the Second Amendment, this FAQ is not about gun control and spends little space discussing the Second Amendment.

Current Law

There is very little controversy about current laws governing the militia. It is generally agreed that all power over the militia is shared between the federal and state governments.

There is no real disagreement that the new militia movement is not authorized by either state or federal law. Members of the new militia have no privileges, rights, duties, or immunities for their action over and above those of other members of society. The only way they can obtain privileges, rights, duties, or immunities would be by laws passed by either the federal or state government. No such laws exist. The new militia are not protected by the militia clauses of the Constitution nor by federal or state law.

Not being protected does not mean forbidden. When these groups do things that don't break any laws, then there is nothing to stop them from doing them. When they do break the laws, there is nothing to protect them.

The only real area of controversy in this entire FAQ is whether or not laws against unauthorized military organization or unauthorized armed parading are constitutional, and if they are constitutional, what behavior constitutes unauthorized military organizations or unauthorized armed parading. These laws were held valid in the nineteenth century by the U.S. Supreme Court and have been held valid by lower courts in the twentieth century.

However, an argument can be made that these laws are unconstitutional or too vague, or that the behavior of the new militia does not violate these laws. These issues are discussed in greater detail in Part 5.

1.9 Summary

The militia have existed in the United States since the founding of the colonies and continue in existence today. From the time of the founding of the colonies until the period of the Articles of Confederation, the militia were governed by the charters and laws of each colony. During the period of the Articles of Confederation the states retained almost complete control over the militia with only some relatively minor control given to the national government.

Under the Constitution since 1789, control over the militia has been divided between the state and federal government. In the twentieth century, the federal government dramatically increased its control over the militia.

The organization and membership of the militia have changed over the centuries. However, at all times, membership, duties and militia responsibility were spelled out by written law.

1.10 What is a militia?

A. A militia is a body of armed citizens, with some military training, who may be called to temporary active military service in times of emergency. Militias are generally understood to be a part-time, nonprofessional fighting force, distinguished from regular troops or a standing army. In the United States, the term "militia" has historically been associated with the colonial and state militias that existed since the early days of settlement.

The 1990 case of Perpich v. DoD is the most recent United States Supreme Court case on the militia. The Court stated at 110 S. Ct. 2426: "[T]he traditional understanding of the militia [is] as a part-time, non-professional fighting force." The Court then quotes from the 1879 case of Dunne v. People, 94 Ill. 12, where the Illinois Supreme Court stated:

"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 [emphasis added] 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."

Note the use of the term "active" in the above definition. It shows judicial recognition that in both the late nineteenth century and the late twentieth century, there is a sharp distinction drawn between the part of the militia that serves and the "body of the militia." This distinction is discussed in detail in this FAQ in terms of the organized or active militia and the unorganized or inactive militia.

The term "unorganized militia" or its synonyms did not exist prior to the 1830s, when such terms were invented and put into state militia laws. The term became part of federal law in the early twentieth century.

1.11 This FAQ examines only American militias.

1.12 Who was the militia?

A. The makeup of the militia has changed over time and place. When militia duty was compulsory, it was theoretically required of all able bodied males. Statements like the following were common among militia supporters in the 1780's:

"I ask, sir, what is the militia? It is the whole people, except for a few public officials." (George Mason, 3 Elliott, Debates at 425-426)

"A militia, when properly formed, are in fact the people themselves... and include all men capable of bearing arms." (Richard Henry Lee, Senator, First Congress, Additional Letters from the Federal Farmer (1788) at 169)

These words were wonderful, but the reality was something different. For example, it was often possible to avoid militia service by paying a fine or by getting an exemption.

The historical militia, which starting in 1792 consisted of every able-bodied white male aged 18-45 except for those exempted (often reaching 50% or more), never was completely armed. In fact, most militiamen did not have guns; this is very clear from the surviving militia returns. In fact, the militia in some areas got the nickname "Cornstalk Militia" because so many of its members showed up for training with cornstalks instead of guns.

You can look at American State Papers, Class V, Military Affairs, which contain the militia returns that all governors forwarded from their states to the federal government throughout the first half of the nineteenth century. Most good libraries will have a set of American State Papers.

Basically what you will find is that New England states such as Massachusetts and Connecticut were very well-armed, with most militiamen having guns, but Southern and Western states were very poorly-armed, with only a fraction (sometimes a very small fraction) of the militia having weapons. This was due to several factors, but perhaps the most important such factor was that guns were very difficult to buy in those areas (poor availability and high prices).

When militia duty became optional, only those who wanted to serve did so. The National Guard, as the militia of the states, traces its history back to those who volunteered for militia duty [MP].

1.13 What roles have militia units served in U.S. history?

A. Militia units were used both defensively and offensively against Native Americans. They put down slave rebellions. Militia units put down insurrections in the early days of the American Republic. Militia units broke strikes and put down riots. Militia units fought in America's colonial wars, the American Revolutionary War, the War of 1812 and the Civil War. The National Guard fought in WWI,WWII, Korea, Vietnam and the Gulf. Such units have also been used in times of disaster or calamity. The National Guard was at Kent State in 1970 and the National Guard was on guard duty in Oklahoma City in April, 1995. Militias have been part of the armed force available to the government(s) of the day since the early days of the American colonies.

1.14 Summary of Federal and State Power over the Militia under the U.S. Constitution.

A. The Constitution states:

The War Powers Clause: Article 1, section 8

"[Congress shall have power to] ..."to declare war; ...to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; ..to make rules for the government and regulation of the land and naval forces."

The Militia Clauses: Article I, Section 8, clauses 15 and 16:

"[Congress shall have power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

"To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the militia according to the discipline prescribed by Congress."

All historians of the militia, commentators, courts, the state and federal government have agreed upon the following minimum meanings of the constitutional provisions over the militia. Many of these points are discussed in greater detail later in this FAQ.

  • The federal power to create and raise an army is separate from the federal power over the militia.
  • The militia were state institutions governed entirely by written state/colonial law prior to the Constitution. The Constitution gave certain powers over the militia to the federal government, but otherwise the militia remained state institutions. Accordingly, all power over the militia is delegated to either federal or state government.
  • The federal government could only "call forth" the militia for specified purposes. The state government could call forth the militia for any purpose, unless restricted by state constitutions.
  • The words "provide for" did not mean that Congress had to actually do the organizing, give weapons, or enforce discipline over the militia. Rather the term "provide for" is used in the sense of stipulating or making rules governing the organization, arming, and disciplining of the militia. This meaning for "provide" can be found in any dictionary. This meaning is less common today than "provide" meaning "to supply." However, to pass laws setting standards was the intended and agreed meaning of the phrase. The proof is that for the first years of the militia under the Constitution, not one penny of federal money went to supplying the milita. All such provisioning in this period was done by the states or individuals. It was a struggle to get the federal government during the early nineteenth century to spend any money on the militia. Today, the federal government provides almost all of the funding for the organized militia, the National Guard.
  • The power of Congress to "provide for the organizing, arming, and disciplining of the Militia" was an ongoing power whether or not the militia was called into federal service.
  • The power of governing such part of the militia as may be employed in the service of the United States gives the federal government complete authority over the federalized (see 1.15) militia.
  • There is only one institution of the militia; one that is partly under federal and partly under state control.

1.15 Was there ever a federal militia and what does "federalized" mean?

A. There never was a federal militia. The Constitution authorizes the federal government to call up part or all of one or more state militia units under certain conditions.

This term is often called "federalizing" the militia. When the Constitution refers to the militia it is always referring to the state militias. The Constitution specifies that the federal government can take control of the state militias for three purposes; to execute the laws of the Union [the federal government], to suppress insurrection, and to repel invasion.


Go on to Part Two

Go back to Militia Watchdog Page