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MILITIA - HISTORY AND LAW FAQ

Web Version 2.0

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 2. - Quick Reference and List of Questions Answered


2.0 Quick Reference

The references are to major discussions of these topics or cases.

Historical Origin of the Term "Unorganized Militia"

Was the term "unorganized militia" used in colonial America? 3.4
When did the term "unorganized militia" originate? 3.50
Who says that the term "unorganized militia" was a way for states to avoid the intent of the 1792 Uniform Militia Act? 3.51
What is the tradition or history that the new militias are following in embracing the term "unorganized militia"? 4.1

Articles of Confederation

Articles of Confederation: 3.13

United State Constitution

War Powers/Draft: 3.65, 4.26
State Troops versus Militia: 3.13, 3.20, 3.59, 4.3, 4.4
Militia Clause: 3.15, 3.50
First Amendment: 5.8, 5.9
Second Amendment: 3.21, 3.22, 5.8, 5.9
Ninth Amendment: 4.20
Tenth Amendment: 3.43, 4.21
Fourteenth Amendment: 5.4, 5.9, 5.10

Federal Law

1792 Uniform Militia Act: 3.29
1903 Militia Act (Dick Act): 3.61
1916 National Defense Act: 3.62
Current Militia Law: 4.3

State Law

1776 Virginia Bill of Rights: 3.21
1837 North Carolina Law showing regulation of volunteer companies: 3.47
Current New Hampshire militia law: 4.8
Current New Hampshire militia law against unauthorized paramilitary organizations: 5.6
1876 Illinois Act against armed parading/unauthorized paramilitary organizations: 5.9
Current Texas law against armed parading/unauthorized paramilitary organizations: 5.10

Court Cases

1820, Houston v. Moore, U.S. Supreme Court - discusses federal and state constitutional powers over militia: 3.34
1839, Opinion of the [Massachusetts] Justices - state can exempt whomever they want from militia duty: 3.43
1859, Opinion of the [Massachusetts] Justices - state cannot change definition of who can join the militia once Congress has specified that definition; also an excellent view of the history of the militia as seen in 1859: 3.53
1879, Dunne v. Illinois, Illinois Supreme Court - State, can within federal law, exclusively decide size of militia: 3.59
1886, Presser v. Illinois, U.S. Supreme Court - Illinois law against unauthorized armed parading/unauthorized military organizations is valid: 5.9
1891, Chapin v. Ferry, Washington Supreme Court - discusses granting local authority over militia: 4.14, 4.15
1934, Hamilton v. Regents, U.S. Supreme Court - state may determine the degree of military training required of its citizens: 4.19
1944, Re Application of Cassidy, New York State Court, shows courts' attitude towards unauthorized paramilitary groups: 5.12
1957, NAACP v. Alabama, U.S. Supreme Court, premier case on freedom of association: 5.4
1969, Brandenberg v. Ohio, U.S. Supreme Court, merely advocating very unpopular views is not criminal: 5.4
1982, Vietnamese Fishermen v. KKK, U.S. District Court: in this Texas case, the state of Texas intervened to support the plaintiffs. The Court granted an injunction against members of the KKK to stop violations of the Texas state law against armed parading/unauthorized military organizations: 5.10
1990, Perpich v. Dept. of Defense, U.S. Supreme Court, opinion traces the history of the militia to the present: 3.65

Political Voices on the Militia

George Mason: 1.10
Richard Henry Lee: 1.10, 3.16
John Smilie of Pennsylvania: 3.16
Dissent of the Pennsylvania minority: 3.17
Patrick Henry: 3.17
Federalist Reply: 3.18
George Washington: 3.33
Thomas Jefferson: 3.33
James Madison: 3.33
Examples of state Petitions and Resolutions to Congress to legislate a new, more effective organization of the militia: 3.37
Governor Nathaniel P. Banks of Massachusetts, 1860 3.52
Theodore Roosevelt: 3.64
Well-Regulated Political Voices (John Sullivan, Patrick Henry, James Madison, Alexander Hamilton, The Federal Farmer, Benjamin Lincoln, Luther Martin, James Wilson, David Ramsay) 3.22

2.1 Questions and Comments Answered in This FAQ

******* PLEASE NOTE ******

The following list of questions and comments responded to includes some statements that are factually incorrect. They are listed here to help the reader navigate the FAQ. Please see the text for explanations.

Part 1. - Introduction & Summary Material
-----------------------------------------
1.0 Read this First
1.1 Definition of New Militia
1.2 Copyright
1.3 What does [MP] at the End of an Answer mean?
1.3a Who is Sheldon Sheps?
1.4 Other Acknowledgements
1.5 Availability of this FAQ
1.6 Dedication
1.7 Forword: The Power to Cloud Men's Minds
1.8 Areas of Agreement and Controversy
1.9 Summary
1.10 What is a militia?
1.11 This FAQ examines only American militias.
1.12 Who was the militia?
1.13 What roles have militia units served in U.S. history?
1.14 Summary of federal and state power over the Militia under the U.S. Constitution.
1.15 Was there ever a federal militia and what does "federalized" mean?

2.0 Quick Reference
2.1 Questions and Comments Answered in This FAQ

3.1 Standard Sources
3.2 Was there such a thing as a common law militia?
3.3 Was duty in the militia voluntary in the American colonies?
3.4 Was the term "unorganized militia" used in colonial America?
3.5 Aren't you simplifying almost 200 years of militia history?
3.6 How did the militia change in the 1774-1775?
3.7 How could a Revolutionary militia be under civilian leadership? They were after all, in revolt against the King?
3.8 Doesn't the uncoordinated behavior of the militia during and after Lexington and Concord, in 1775 show that the militia were armed citizens and not organized under the civilian leadership of the rebellious colonies?
3.9 But during the Revolutionary war, the militia were LOCALLY controlled for the most, each unit formed, armed and led by the local elected commander. Only the wealthier states that could afford to appoint provisional state militia officers did so. Everyone else fended for themselves.
3.10 How did the militias do during the American Revolutionary War?
3.11 Did the early state leadership exercise much control over the militia?
3.12 Were the states concerned during the Revolutionary war with the subordination of the military, including the militia, to civil authority?
3.13 What did the Articles of Confederation say about the militia?
3.14 What was Shays' Rebellion and how did it bring about more central control over the militia?
3.15 Was Shays' Rebellion an example of a private militia?
3.16 If the militia, as all the people armed, was considered good by the anti-Federalists, what was the evil?
3.17 Was there opposition to the strong federal power given by the Constitution over the state militias?
3.18 How did the the federalists reply?
3.19 But isn't it clear from the debates surrounding the Constitution and the Second Amendment, that everyone intended for the militias to be the means by which the states could resist a tyrannical federal government. How does handing almost absolute control of the militia to the federal government fit with this clear intent?
3.20 What does the Constitution say?
3.21 What about the Second Amendment?
3.22 The Second Amendment refers to a "well-regulated" militia, but I have been told that this the term "regulated" in this time frame simply meant "smoothly functioning" rather than in the sense of "rules and regulations," and that there were no regulations for the militia during this time period.
3.23 Does the Constitution only give the federal government the power to organize, arm and discipline the militia when it has been federalized?
3.24 What was meant by the federal power to "provide for organizing" the militia?
3.25 Did the concept of the militia in 1792 ever include units that were not responsible and militarily subordinate to civilian authority?
3.26 What are the two major pieces of federal legislation concerning the militia after the passage of the Constitution?
3.27 The Founding Fathers looked for inspiration to the common law of England before the passing of the first militia statute. The Anglo-Saxon militia, called the Fyrd, consisted of all able-bodied men; and it was the Fyrd that the founding fathers had in mind when they spoke of a militia.
3.28 What did the 1792 Uniform Militia Act do?
3.29 Some sections from the 1792 Uniform Militia Act.
3.30 Wasn't the very decentralized 1792 Act the only type that could be passed by Congress? The very notion of the militia falling under federal authority was considered a violation of the intent of a militia (an armed citizenry), organized, trained, and disciplined by state legislatures.
3.31 Could Congress prevent the States from creating militias?
3.32 Why did the 1792 Act provide that militiamen purchase and maintain their own weapons? How did this change over time?
3.33 It is well known that George Washington was not happy with the 1792 Act as he had proposed a select militia system. But Presidents such as Jefferson and Madison, surely they must have approved of the 1792 scheme?
3.34 Was the 1792 Uniform Militia Act found constitutional?
3.35 Congress' right to provide for organizing, arming and disciplining militias does not give it the right to say that militias may not exist, nor can Congress prevent the militia from equipping itself differently from that which Congress provides.
3.36 Did the states object to the degree of central control over the militia in the 1792 Uniform Militia Act?
3.37 Examples of state Petitions and Resolutions to Congress to legislate a new, more effective organization of the militia.
3.38 The federal government did very little to exercise its power over the militia in the nineteenth century. Right?
3.39 Did all states have militia laws? For those states which did not, wasn't the regulation of the militia up to the individuals of local communities?
3.40 How did individuals become "enrolled" in the militia?
3.41 What happened to compulsory militia duty as called for by the 1792 Uniform Militia Act?
3.42 Why did the militia decline?
3.43 "Opinion of the [Massachusetts] Justices of this Court upon a question referred to them by His Exellency, Edward Everett, Governor of the Commonwealth, to wit, "whether it be competent to the State legislature to exempt from enrollment in the militia, all persons under 21 and over 30 years of age, in virtue of the general powers of exemption possessed by the States under the act of Congress regulating the militia."
3.44 Did all parts of the militia system decline equally?
3.45 Could states disband militia units?
3.46 There is a notion that among the historical militias, the volunteer companies were self-regulating. Is this correct?
3.47 Example of regulations governing volunteer militia units.
3.48 What happened as opposition to the compulsory militia grew? Did the individual states take action?
3.49 Weren't there people who thought the abolition of the compulsory militia went against the spirit of the framers of the U.S. Constitution and the ideals of the Republic?
3.50 When did the term "unorganized militia" originate?
3.51 Who says that the term "unorganized militia" was a way for states to avoid the intent of the 1792 Uniform Militia Act?
3.52 In 1860, the state legislators of Massachusetts wanted to amend the state militia law so as to allow blacks to serve in the state militia. The governor vetoed the law. Why?
3.53 Why did the Massachusetts Supreme Court say in 1859 that the state could not allow blacks to serve in the militia?
3.54 How extensive was the volunteer militia up to the beginning of the Civil War?
3.55 What was the role of the militia in the Civil War on theUnion side? To what degree were these militia units volunteer units as opposed to the enrolled militia?
3.56 What about the Confederate side?
3.56A How do you explain all the units named for those who raised them. Weren't these independent military companies?
3.57 What happened to the militia during Reconstruction?
3.58 Why did support for the state militia increase in 1877?
3.59 How did Peter J. Dunne get out of jury duty in 1879?
3.60 How did the 1903 Dick Act come about?
3.61 Sections of the 1903 Dick Act.
3.62 Sections of the 1916 National Defense Act.
3.63 How was the militia reorganized in 1933?
3.64 How does one become a member of the National Guard today?
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.

4.1 This FAQ 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 States in recent years. The term excludes both the National Guard and state defense forces created under 32 USC s.109(c).
4.2 What is the tradition or history that the new militias are following in embracing the term "unorganized militia"?
4.3 What's the current federal law?
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?
4.5 Could new militia groups join the state defense forces as units?
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. It's still on the books, so it's still legal for us to organize.
4.7 Do all states currently have militia laws?
4.8 Excerpts from a typical state militia law - New Hampshire.
4.9 Under what circumstances can the state militia be called out?
4.10 Who at the state level can call out the state militia?
4.11 In what way are new militias responsible to elected civilian authority?
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..."?
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.
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 sheriff of their existence and that they serve the sheriff when asked. So a [new] militia is a militia if it forms with the knowledge of the county sheriff (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."
4.15 How do you explain the New Hampshire law that protects their citizen militia?
4.16 What is the militia's existence or status when not summoned by a governor or the President? Does it somehow evaporate conveniently?
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.
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.
4.19 Doesn't the state have an obligation to train the "unorganized militia"?
4.20 It has been argued that the Ninth Amendment supports the right of individuals to create "unorganized" militia units.
4.21 Doesn't the Tenth Amendment give individuals rights over the militia?
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.
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.
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 militia unit.
4.25 But surely there is some way that we, the unorganized militia in Michigan, can get authorization by the governor?
4.26 It is the fact that the citizenry are considered militia, although unorganized, that gives the federal government the power to enact the draft of individuals into the armed forces.
4.27 The Constitution has been suspended since 1933 and Americans are living under admiralty jurisdiction. This view is sometimes expressed by those who also support the new militia.
4.28 Violations of the Constitution are more than provocations. They are themselves violations of law. E.g. 18 USC 241, Conspiracy to Violate Civil Rights, or 18 USC 242, Deprivation of Civil Rights Under Color of Law. They may also violate state criminal laws. Since the militia is obliged to enforce constitutional laws, they have the duty to enforce the laws being violated by such unconstitutional action. That means militiamen may be faced with the duty to arrest those trying to arrest them, and thus the divide between law and anti-law poses the threat of armed conflict.
4.29 Can a governor prevent the "unorganized militia" from training?

5.0 This FAQ has shown that nothing in the Constitution or state and federal law that either authorizes or advocates the actions of the new militia.
5.1 What concerns should a member of a new militia have, even if they live in a state without laws against unauthorized military or paramilitary organizations?
5.2 Which states have laws regulating or prohibiting unauthorized paramilitary organization?
5.3 Is there a federal law against unauthorized military organization?
5.4 What are the reasons for stating that these anti-militia laws are unconstitutional?
5.5 The laws against private armies do not apply to the new militia. These laws came about as a result of the Ku Klux Klan's attempts to create a "militia" (I use quotation marks because the KKK's goal in organizing was to subvert the laws of the United States under the Constitution, thus making it illegal) in the aftermath of the Civil War. So, states began to outlaw private armies. However, since the [new] militias are not private armies, but in fact are regulated to a certain extent in that they may be federalized, theselaws do not affect them.
5.6 Typical state law against unauthorized paramilitary activity.
5.7 Many state constitututions have 'Second Amendment' type articles very different from the federal Constitution. Dothese state constitutions make the state laws invalid?
5.8 Can a state prohibit unauthorized military organizations for actions that they take on private land?
5.9 In the 1886 case of Presser v. Illinois, 116 U.S. 615. the U.S. Supreme Court found constitutional an Illinois law against unauthorized military organizations and unauthorized armed parading. In doing so, the Court discussed the First and Second Amendments.
5.10 In the early 1980's large numbers of immigrant Vietnamese fishermen were competing with local white Texans for the shrimp fishery. Things got very rough and the Ku Klux Klan became involved in acts of intimidation against the Vietnamese fishermen. A class action suit was brought, that among other things sought an injunction against the KKK's military organization for violating Texas law Article 5780(6) against unauthorized military organizations and unauthorized armed parading. The State of Texas intervened to support the application for the injunction, which was granted. In doing so, the Court provided some definitions for the term "military organization."
5.11 Are there any groups that could be charged under the state laws?
5.12 What kind of a reception are these groups likely to find from judges if they ever get to court?

Afterword by Mark Pitcavage


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