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MILITIA - HISTORY AND LAW FAQ

Web Version 2.0

September 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 3. - History of the Militia in America

3.1 Standard Sources

Some standard works on the militia and the American military are:
  • Cress, Lawrence Delbert Cress. Citizens in Arms: The Army and the Militia in American Society to the War of 1812
  • Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775-1865
  • Mahon, John K, The History of the Militia and the National Guard
  • Millett, Allan R. & Maslowski, Peter, For The Common Defense: A Military History of the United States of American: Revised Edition
  • Riker, William H, Soldiers of the States

One of the few Law Review articles discussing the historical militia is "The Militia Clause of the Constitution" by Frederick Wiener 54 Harvard Law Review 181(1940).

3.2 Was there such a thing as a common law militia?

A. The militia were not created by the common law. Militia law is statutory law. The charter of each American colony included authority to create militia units. All American colonies passed militia laws under the authority granted by their charters. All states and the federal government have militia laws. There never was a period of common law militia in America.

Interpreting statute law and the Constitution to understand the meaning of 'militia', for example, does not mean that there ever was a common law militia. Even if the Bill of Rights or the Fourteenth Amendment means that laws against unauthorized paramilitary organizations are unconstitutional the result would not change civilians into some sort of common law militiamen. [Note: To date these laws have been found constitutional]

3.3 Was duty in the militia voluntary in the American colonies?

A. No, white able-bodied free males were required by law to belong to the miliita by the statute law of the colony. Whether or not they actually served in militia units is another question. Sometime the militia laws were strictly enforced, sometime laxly. The requirement for service could be met by joining either the colony's militia in your local area or joining (if they would have you) a volunteer militia unit. These companies were allowed under colonial legislation and were, of course, subordinate to the authority of the colony. Some colonies provided religious exemptions to militia duty.

3.4 Was the term "unorganized militia" used in colonial America?

A. No. The term for those within the militia system was simply the militia. A distinction was drawn between those who did their militia duty in the compulsory units and those who did their militia duty in volunteer units. The compulsory militia was known as trainbands, beat militia, or enrolled militia. The volunteer milita was known as the volunteer militia, or the uniform militia. The term 'uniform' referred to the fact that the volunteers wore uniforms.

3.5 Aren't you simplifying almost 200 years of militia history?

A. Yes, but the concept of the militia to remember is that it was a SYSTEM to create organized armed forces for the colony. The militia could be called out by local officials for defense purposes or called out by the colonial leadership. There was also fighting and killing done by groups that were not militia units.

3.6 How did the militia change in the period 1774-1775?

A. The militia were revitalized and reorganized in the 1770's by the colonies to provide a force to counter the British Army in the growing constitutional crisis over the colonies.

"In September 1774 the Continental Congress endorsed a resolution from Suffolk County, Massachusetts, calling for the colonies to reorganize the militias under leadership friendly to the "rights of the people," setting in motion a series of provincial actions that made the militia the cornerstone of armed resistance to British policy through the winter of 1775. Massachusetts moved first to revive the militia's ancient function as the armed guarantor of the civil constitution. In October 1774, the provincial congress instructed local committees of safety to assume responsibility for the training, supply, and mobilization of the colony's militia system. It also directed the citizens in their capacity as militiamen, and "with due deliberation and patriotic regard for the public service," to elect their own company officers. Those chosen in local voting were to elect regimental officers to command the militia at the county level. The provincial congress retained the power to appoint general officers, ensuring that the military order remained ultimately subordinate to civil authority.

"Resolving "that a well-regulated Militia, composed of the gentlemen, freeholders, and other freemen, is the natural strength and only stable security of a free Government," the Maryland convention acted in December 1774 to reorganize its militia under a popularly elected officers corp. ...Six month later, in an effort to provide a source of manpower for the newly formed Continental army, Congress recommended that all states adopt the republican principles embodied in the Massachusetts militia structure. ...By early fall [1775] provincial assemblies in Maryland, New York, New Jersey, Pennsylvania, Virginia, New Hampshire, and North Carolina had taken steps to comply with the congressional recommendations. - Cress, pp. 48-49

3.7 How could a Revolutionary militia be under civilian leadership? They were, after all, in revolt against the King.

A. The militia of Massachusetts were definitely supervised by the shadow government that the colonials had set up and which would eventually become the Patriot government of Massachusetts.

Some militia historians believe that the 'subverting' of the colonial militias by the Patriots was key to the success of the American Revolution.[MP]

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?

A. "The revolutionary government in Massachusetts directed all company officers to prepare one-third of their command to respond instantly to calls. Thus were created the Minute Man units, copied then by other colonies/states. Minute Men first came under fire at Lexington when Captain John Parker's company stood in the way the British march toward Concord to confiscate military stores. Although Parker's Minute Men fired the shots "heard round the world," they scarely halted the march of the foe. At Concord, however, militia units, some of them with ancient lineages--lined the rise overlooking the British line of march. Behind them stood a company made up of old men and boys. Still farther behind were citizens who removed the stores the redcoats had come to confiscate. Foiled in their mission, the British began the return march to Boston, only to be hit by fusillades from behind every stone fence. This fire came not from organized militia but from clusters of angry citizens. Had the marksmen been better organized, they might have destroyed the invading column." Mahon, p.36

The conduct of individual militiamen at Lexington and Concord was a factor of their hasty spur-of-the-moment mobilization, and not their lack of military hierarchy. If you look at the rest of the war in Massachusetts in 1775, after the first day's events, you will see the mobilization using established hierarchy and chain of command (Richard Buel's book Dear Liberty is a good source for mobilization in Connecticut). [MP]

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.

A.This is not an accurate characterization of the militia as a whole. To an extent, of course, every militia unit was locally controlled, because the militia was geographically divided. A militia general controlled the militia in his area of the state, for instance. However, all the state militias were tightly controlled by the state governments, which called out militia units for duty, drafted militiamen into the Continental Army or for other purposes, set tables of organization and equipment, maintained a system of military justice, and in every other way organized the activities of the militiamen during the revolution.

Units were not formed, armed and led by "local elected commanders." They were formed by the states, armed by a combination of individual action and the states, and how they were led depended entirely on state law. Some states appointed all militia officers. Other states allowed elections. But again, the key is that the state determined the procedure.[MP]

3.10 How did the militias do during the American Revolutionary War?

A. The militia's performance on the battlefield against British troops was only so-so, but nevertheless the militia was key to American victory. Patriot militias offered a ready source of manpower in every region, supplementing the Continental Army. Moreover, they performed a signal service in keeping Loyalists in line, thus handing over control of the countryside to Patriot forces.[MP]

3.11 Did the early state leadership exercise much control over the militia?

A. When the Founding Fathers referred to the militia, they were referring to the state organizations that had already existed for decades or even more than a century in some states by 1787. These state organizations had extensive militia codes which regulated who would be and who would not be in the militia, how, when and where militia members would train, who would officer the militia, what the punishment for transgressions would be, how the militia could be called up, etc. Although it was common for people to refer to the state militias as consisting of all the people, since they did consist of one whole heck of a lot of the people, anyway, in actual fact, exemptions were very common, and it was easy for wealthy or privileged people to avoid militia service. These state organizations were hierarchical in nature. In some states officers were elected; in others, they were appointed by the state. The entire state was usually organized into geographical divisions which corresponded with a military division. Divisions were geographically subdivided into brigades, regiments, and companies, just like regular military units. In Southern states, regiments often corresponded with counties, and militia captains had additional civil responsibilities, such as handling elections or appointing slave patrols.

It is a mistake,to conceive of the militia merely as a mass of individual men with guns. Though indeed they were citizen-soldiers, they were as organized as eighteenth century society could organize Americans, and when they were called out, it was usually through a top-down, organized fashion.[MP]

3.12 Were the states concerned during the Revolutionary war with the subordination of the military, including the militia, to civil authority?

A. Very much so, which is not surprising, considering that the civil-military conflicts between British troops and colonial leadership was a not insignificant cause of the American Revolution.

"Every state ratifying a new constitution during the Revolutionary War save New Hampshire, Georgia, and New Jersey, noted the necessity for the subordination of military to civil authority, proclaimed the right and obligation of free men to bear arms, and denounced standing armies as a threat to the civil liberties of a free society...[C]onstitutional conventions sought to ensure that the states' military capacities could not become the springboard by which ambitious political authorities could subvert the constitutional order for their own political ends. Establishing the primacy of the state assemblies in military affairs provided the principal means of acheiving that goal.

"In no state was the governor denied the office of commander in chief of both militia and regular state troops. Nevertheless, the real power to mobilize the states' military institutions belonged to the representative assemblies...Most states required the consent of an executive council before the militia could be embodied...

"All regular and militia officers in the states served under commissions granted by their respective governors...

"Still, there was little chance that militia officers might become extensions of an ambitious executive authority, for in no state did the governor enjoy a free hand in appointing militia officers. The governor of New York held the power to make militia appointments with the advice of his executive council. Virginia's governor held the same power, except that all appointments were to be made on the advice of local county courts. In the other states, governors had no role in the appointment of militia officers. Constitutional conventions in Delaware, North Carolina, and South Carolina required the joint concurrence of the popular branches of government for the appointment of field and general grade officers. The same conventions vested the legislative assemblies with the power to determine how to select company-grade officers. In New Jersey and New Hampshire company-grade officers were to be elected by the rank and file, and field and general officers were to be appointed by both houses of the general assembly. Pennsylvania allowed its militiamen to elect officers through the grade of colonel, and in Massachusetts popular election extended to the level of brigadier general. In both states, however the highest level of the militia command structure served at the behest of the popular assemblies." - Cress, pp. 60-62.

3.13 What did the Articles of Confederation say about the militia?

A. The militia was still very much the state militia with little central control. The States were given the responsiblity for actually supplying the militia with arms and equipment.

The Articles stated:

"No vessels of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defence of such State, or its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number ony, as in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quanitity of arms, ammunition and camp equipage."

There are other paragraphs pertaining to the militia in Article VI, Article VII, and Article IX. Article VII provides that all militia officers under the rank of colonel be appointed by state legislatures. Article IX provides that Congress should appoint officers at the regimental level (colonels, usually) and above, and also gives a procedure by which the federal government could call upon the militia in case of national emergency. It was up to state governments under the Articles to determine which men would serve in the militia.

The Articles also clearly distinguish between troops which can be only be kept in time of peace by states with the consent of Congress and militia which it is the obligation of the state to supply and keep up.

3.14 What was Shays' Rebellion and how did it bring about more central control over the militia?

A. "In 1786, a body of men under Daniel Shays, who had been an efficient captain of a company [of militia] during the Revolution, rebelled against the foreclosure of land in Massachusetts. As many as 1100 of them threatened the Supreme Court, while 800 militiamen, called to defend the Court but sympathetic to the rebels, looked on. The mortgage holders resided in eastern Massachusetts, the rebels in the west. Because there was ill-feeling between the two sections of the state, the creditors were able, using influence and money, to gather enough militia men from eastern Massachusetts to march against the insurrection... The use of citizen soldiers to suppress rioters became the pattern for dealing with insurrections in the last decade of the 18th century. The difficulty in suppressing Shays' rebellion was only one episode convincing former leaders of the Revolution that the Articles of Confederation were too weak to preserve the structure they had fought to bring into being. " Mahon, p.47

3.15 Was Shays' Rebellion an example of a private militia?

To the extent that the Shaysites had military structure, they used the existing militia structure; simply not for legal purposes.

"...[N]ews arrived from Massachusetts in September 1786 that armed insurgents had closed the courts of Common Pleas in Hampshire, Worcester, and Middlesex counties. Instead of rallying to defend the civil order, the local militia sided with Shays' Rebellion. Only a day after Governor James Bowdoin had called on upon the citizenry to quell the rebellion, word arrived from Worcester that 'there did appear universally that reluctance in the People to turn out for the support of Government as amounted in many instances to a falt denial: in others to an evasion or delay which amounted to the same thing.' From September through January reports of the militia's unreliability flowed into the governor's office. Even the militia's successful defense of the Continental arsenal at Springfield was marred when supposedly loyal militiamen joined the ranks of the insurgents during the skirmish. Resistance to constitutional authority was by no means limited to the militia's rank and file. Militia officers discouraged their companies from taking the field, prevented the distribution of powder and supplies, and actively recruited their subordinates for service with the insurgents." Cress,pp.95-96

3.16 If the militia, as all the people armed, was considered good by the anti-Federalists, what was the evil?

A. For many, the good was a militia made up of all the people, the evil found in both standing armies and a 'select' or 'classified' militia system.

A select militia was basically dividing the militia into several groups with varying levels of burdens, with the prime burden of military service placed on those from 18-26 or so. Congress never established such a system, despite the wishes of people that ranged from George Washington toHenry Knox to Rufus Putnam to Timothy Pickering to Thomas Jefferson to James Madison, etc. [MP]

For example, Richard Henry Lee's Letters from a Federal Farmer saw little difference between a standing federal army and a select militia:

"Should one fifth or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those be the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army while the latter will be defenseless."

Or John Smilie of Pennsylvania: "Congress may give us a select militia which will, in fact, be a standing army."

What Lee and Smilie feared was that Congress was given so much power--particularly "to organize"--that if could form, if it wished, a select militia. The notion of a select militia, though it had earlier antecedents, was basically the result of the end of the Revolutionary War. Alexander Hamilton in 1783, as a member of Congress, asked George Washington for his opinions on what sort of military forces the U.S. should have in time of peace. George Washington consulted with a number of military subordinates, most of whom recommended that, in addition to several things having to do with the Army, that the militias should be classified according to age, with the younger men doing most of the work, and should be more under the authority of the national government. Washington condensed their opinions and sent them off to Alexander Hamilton, who basically ignored them and offered a different plan of classification, but based on marriage, not age.

Two of Washington's advisors, Henry Knox and Baron Steuben, then printed their plans separately in the mid 1780s. Knox's plan, in particular, was discussed by Congress in 1786 and "recommended" to the states. Knox, an ardent federalist, wanted the federal government to have great authority over the state militias. There was an awful lot of opposition to his plan. It is primarily Knox's plan, and others like it, that the anti-federalists feared when they referred to a "select militia." It was not a militia that actually existed, but one that they felt could come into existence if Congress were given too much power over the militia. [MP]

3.17 Was there opposition to the strong federal power given by the Constitution over the state militias?

A. Sure.

November 1787: "An Officer of the Late Army" complains that "The MILITIA is to be under the immediate command of Congress."

December 1787, Pennsylvania Convention: Robert Whitehill calls for the power to organize, arm and discipline the militia to remain with the states, not Congress.

The Dissent of the Pennsylvania minority claimed that "The absolute unqualified Command that Congress have over the militia may be made instrumental to the destruction of all liberty, both public and private."

Patrick Henry, June 1788, "They have power to call them out, and to provide for arming, organizing, and disciplining them.--Consequently they are to make militia laws for this state."

These people, in fact, thought that Congress had so much control over the militia that the Constitution should not be adopted. However, most people didn't think that this much control posed a threat, because the militia would not stand for any attempt to use it against the people.

3.18 How did the the federalists reply?

A. From THE FEDERALIST - Alexander Hamilton, James Madison, John Jay, XXIX:
"...To oblige the great body of the yeomanry and of the other classes of citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the to the people and a serious public incovenience and loss. It would form an annual deduction from the productive labor of this country to an amount which, calculating upon the present numbers of the people, would not fall far short of a million pounds. To attempt a thing which would abridge the mass of labor and industry to so considerable extent would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. But through the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate size, upon such principles as will really fit it for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defense of the state shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.

Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point is a thing which neither they nor I can forsee.

There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common sense are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits, and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia and to command its services when necessary, while the particular States are to have the sole and exclusive apportionment of the officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a prepondering influence over the militia...

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 militias to the federal government fit with this clear intent?

A. Control was actually shared between federal and state governments, but it can safely be generalized that most people thought that militias would not stand to be controlled by the federal government if that body were to begin acting oppressively. Therefore, giving some control over them to the federal government (which would help the nation repel foreign attacks, etc.) would probably not lead to despotism.[MP]

3.20 What does the Constitution say?

A. First, the constitution continued the prohibition of states keeping troops in peacetime without the consent of Congress. Again, troops were considered different from the militia.

Article 1, Section 10:

"No state, shall without the consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any agreement or compact with another state, or whith a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."

The Militia Clauses gives Congress the 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..."

Power of the President over the Militia:

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..."

Like most things, the militia clauses were a compromise between those who wanted a centralized national militia and those who wanted the militia to be very decentralized.

What was not specified in the Constitution, but was clearly understood by all was that the term 'militia' meant the militia of the states.

3.21 What about the Second Amendment?

A. The Second Amendment: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The meaning of the Second Amendment, especially in these newsgroups, is a matter for heated debate. This FAQ is not a FAQ on gun control or the Second Amendment, but it will make a few comments.

Most historians agree that at least part of the meaning of the Second Amendment was that it specifically guarantees the the right of states to ensure the arming of their militias in the face of fears that the federal government might effectively deny to arms to a state controlled militia. However, those fears never came true.

The Second Amendment has been largely irrelevant to the history of the militia since 1792.

The Second Amendment has been used, unsuccessfully, to challenge the constitutionality of state laws against laws prohibiting unauthorized paramilitary organizations. This failure is not surprising. Even if the Second Amendment is intended to protect the right to keep and bear arms as private citizens, it is a much further step to say it was intended to protect the right to armed paramilitary activities by self-selected groups outside of civilian political control.

For example, the 1776 Virginia Bill of Rights, considered by many as one of the sources of the Second Amendment states: "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free State; that standing armies should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power."

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.

A. I've had some qualms about including this information because of the danger of the distracting the reader from the main issues about the history and law of the militia. On the other hand, it is interesting material .

Three points. One, even if every word that follows in this section on 'well-regulated' is wrong, it would have no impact on the rest of this FAQ. Don't let this section sidetrack you from the rest of the FAQ.

Two, Mark Pitcavage, who wrote this section, has a rule that he will not discuss the meaning of the Second Amendment in newsgroups, though he will discuss it through e-mail.

Finally, although I've often seen Black's Law Dictionary abused on the Internet, I checked it, and here are the definitions of 'regulate' from the Fourth edition [I've left out the citations]:

"Regulate. To fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to government principles or laws. The power of Congress to regulate commerce is the power to enact all appropriate legislation for its protection or advancement; to adopt measures to promote its growth and insure its safety; to foster, protect, control and restrain. It is also the power to prescribe rules by which commerce is to be governed and embraces prohibitory regulations"

Over to you, Mark.

The meaning of the term "regulation" as mentioned by the question was indeed in use during the period, but it was by no means the only way the word was used in relation to the militia. This FAQ itself provides some examples of 'regulations' in the form of the 1792 Uniform Militia Act and the 1837 North Carolina law on volunteer cavalry.

There is a continuity from the time of the founders (and before) through the nineteenth century through today, in which the term "regulated" as it related to the militia referred to regulations.

"Well regulated" in the Second Amendment refers to the combination of state and federal regulations, as authority over the militia under the Constitution was divided between the two by the Militia Clauses. Most of the founders emphasized federal regulations, since that was what was at issue during the ratification debates.

Sometimes the Founding Fathers used the term "regulate" to refer to state militia laws. For instance, Patrick Henry and James Madison, members of the Virginia House of Delegates in 1784, were appointed to a committee to prepare a bill "to amend the several acts of Assembly, for regulating and disciplining the militia, and for providing against invasions and insurrections." This bill did more than just "train" the militia.

It is also interesting to read the words of John Sullivan, the former Revolutionary War general, Federalist, and governor of New Hampshire, in 1785, when he says that "And the Prussian army so formidable in Europe, is nothing more than a well regulated militia; the voice of the Prince calls them to the field; three months are taken up in disciplining them, and in passing the reviews; they are then furlowed..." Sullivan evidently thought that "well regulated" could mean three months of government training a year.

In 1783, Alexander Hamilton made a report on national defense to the Continental Congress, in which he suggested that states transfer the right of appointing officers to the Continental units to Congress, arguing that "without it there can never be regularity in the Military system." Though dealing with a situation that was never adopted, it nevertheless illustrates further that the term "well-regulated" could hinge on federal control. This becomes more important later in the same report when he discusses the militia, which he felt should be "well regulated;" to that end, Hamilton provided a plan for the militia, its organization, training, officering, equipment, duties, etc.

We also find the Federal Farmer, in November 1787, noting that "The state must train the militia in such form and according to such systems and rules as Congress shall prescribe; and the only actual influence the respective states will have respecting the militia will be in appointing the officers...I know that powers to raise taxes, to regulate the military strength of the community on some uniform plan, to provide for its defence and internal order, and for duly executing the laws, must be lodged somewhere; but still we ought not to lodge them, as evidently to give one another of them in the community...advantages over others." Clearly the Federal Farmer believed that the power to "regulate the military strength of the community" was lodged with Congress.

We could turn as well to Benjamin Lincoln, Revolutionary War general, Massachusetts politician, and militia officer, who reviewed Henry Knox's 1790 plan to organize the militia, and referred to it as Knox's "proposed system for regulating the militia of the United States." In fact, the term "regulating" was used synonymously for "organizing" by a number of people at the time.

Coming back to Alexander Hamilton, we see him in the Federalist 29 in January 1788, arguing that "if a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security." (he is referring here to Congress) It is hard to imagine how one could find a plainer statement saying that the term "well regulated" applies to laws passed by the national government. It is clear, too, that the term cannot apply solely to training, because the power to train, as Hamilton knew, was given to the state governments. Later in the document, we see Hamilton asking the question, "What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia and to command its services when necessary; while the particular states are to have the sole and exclusive appointment of the officers?"

If a Federalist like Alexander Hamilton believed that the term regulated meant Congress' power over the militia, what about the antifederalists? We see Luther Martin, in January 1788, arguing that "it was speciously assigned as a reason [by nationalists], that the general government would cause the militia to be better regulated and better disciplined than the State governments." Indeed, Martin gets even more specific, when he argues that instead the government should leave power to the states: "That leaving the power to the several States, they would respectively best know the situation and circumstances of their citizens, and the regulations that would be necessary and sufficient to effect a well regulated militia in each--That we were satisfied the militia had heretofore been as well disciplined, as if they had been under the regulations of Congress..." How could you ask for anything more specific about the meaning of well-regulated? What creates a well regulated militia? Regulations!

James Wilson, in the Pennsylvania state ratifying convention, applauded the notion of uniform militia laws that would be passed by Congress: "In every point of view, this regulation is calculated to produce the best effects. How powerful and respectable must the body of militia appear, under general and uniform regulations!"

David Ramsay, the South Carolinian, gave an oration at Charleston in which he said that "Tradition informs us, that about forty years ago France meditated an invasion of New England, but on reading the militia law of Massachusetts, declined the attempt. If this was the case under the wholesome regulations of one state, what room is there to fear invasion when an union of force and uniformity of system extends from New Hampshire to Georgia?" Again: Congress can best provide for a well regulated militia.

Below are a few examples of the meaning of 'regulated' culled from the early years of Congress. There were many more such references; these are simply ones that I have made notes on:

1st Congress, 3rd Session . Mr. Vining observes that the greatest objection [to a motion for arming the militia] is that it stops short in the regulation of the business.

December 22, 1790. Mr. Bloodworth [argues that present militia bill] goes to the minutiae of the regulations of the militia.

January 9, 1795. Mr. Tracy said, he was convinced of the necessity of amending the militia law; before Congress made any regulations of the kind, the militia, in the State he was from, was under very good discipline...

December 19, 1796. (paraphrase) Mr. Henderson objects that the states haven't yet had time to regulate their systems so as to comply with the 1792 law.

April 29, 1798. Mr. Dayton moved that the committee...be discharged from further consideration of this bill [revising the militia system]...however salutary the proposed regulations might be in a state of tranquility, he did not think it would be proper, in the present circumstances of the country, to derange the whole Militia system to so great a degree...

March 6, 1810. Samuel Smith delivers a committee report, noting that no authority is delegated to Congress to regulate fines for non-attendance (at militia musters).

January 9, 1818. William Henry Harrison delivers a bill for organizing, arming, and disciplining the militia. In describing the bill, says "Regulations for calling forth the militia may remain substantially" as at present. Later in the same report, he says that under the proposed bill, when training, the militia "shall be subject to the rules and regulations prescribed for the government of the militia when in the military service of the United States."

As well, many militia codes passed by the states had titles like "A law to regulate the militia." The militia laws of Ohio from the 1840s are examples of such phraseology. These laws "to regulate" the militia were complete militia laws, dictating everything from officers to court martials to training to formation of units to fines to musters, etc., etc., etc.

Some people want the term "well-regulated" to have nothing to do with regulations or Congress, because of their interest in maintaining a right to keep and bear arms. Since some gun control advocates say that the preamble to the Second Amendment (mentioning the "well-regulated" militia) means that only members of the "well-regulated militia"--which today would be the National Guard--have an absolute right to bear arms, it is in the interest of those who oppose gun control to render this phrase meaningless.

Whether or not the Second Amendment guarantees an individual right to bear arms is not particularly relevant to this FAQ, but the issue of whether or not the national government has some authority over the militia is important. It is therefore worth pointing out, as I have with the examples above, that the argument that the term "well-regulated" had nothing to do with regulations, is very probably false. [MP]

3.23 Does the Constitution only give the federal government the power to organize, arm, and discipline the militia when it has been federalized?

A. No. The federal government always has the power to "organize, arm and discipline" the state militias. It has this power regardless of whether or not the state militias are called up by the federal government. Furthermore, it routinely used this power at times when no state militias were called up by the federal government. When the state militias are called up, the federal government has additional powers over them, but this has nothing to do with the other powers. [MP]

3.24 What was meant by the federal power to 'provide for organizing' the militia?

A. Almost all courts and legislators have understood the term meant the power to define who was and who was not in it, what sort of units it should have and how they should be structured, how it would be officered, and what the duties of officers were. A number of people thought that the power to 'organize' extended far beyond this, but there was dispute about this point. [MP]

From Merriam Webster's Tenth Collegiate Dictionary: Provide. vb. 1. To take precautionary measures. (Provide for the Common Defense.)2. TO MAKE A PROVISO OR STIPULATION (THE CONGRESS PROVIDES FOR AN ELECTED TWO-CHAMBER LEGISLATURE) 3. To make preparation to meet a need; to supply sustenance vt (vert transitive) (archaic) 1. To prepare or get ready in advance 2. To supply or make available 3. To make something available to 4. TO HAVE AS A CONDITION; STIPULATE.

3.25 Did the concept of the militia in 1792 ever include units that were not responsible to and militarily subordinate to civilian authority?

A. No. The whole point was to have a military force completely subordinate to civilian authority.

13.26 What are the two major pieces of federal legislation concerning the militia after the ratification of the Constitution?

A. The 1792 Uniform Militia Act created a militia system that was very decentralized with every able bodied free male citizen required to domilitia duty.

The 1903 Dick Act recognized that compulsory militia service no longer existed. The organized militia, now called the National Guard, came under much greater federal control and received much higher federal funding.

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.

A. There doesn't seem to be much evidence of this. Congressmen in 1792 didn't have to look any farther than the laws of their respective states to find inspiration for drafting militia laws.

3.28 What did the 1792 Uniform Militia Act do?

The 1792 Uniform Militia Act, which was the act that Congress passed to organize, arm, and discipline the militia, specified that militiamen purchase and maintain their own weapons. It specified which classes of individuals were included and excluded from the militia, and specified the organization of the militia.
"[The 1792 Law] gave the militia whatever slight central direction it was to have for 111 years. It stated that all free, able-bodied white men owed military service to both state and nation. It further directed the eligible males to furnish themselves with proper firearms and accoutrements. Certain categories of men were exempt from service and the law authorized the states to expand further their own exemptions." Mahon, p. 52.

3.29 Some sections from the 1792 Uniform Militia Act

The entire Act is less than four pages long.

"Section 1. MILITIA HOW AND BY WHOM TO BE ENROLLED - HOW TO BE ARMED AND ACCOUTRED

That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of 18 years, and under the age of 45 years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizens shall reside, and that within 12 months of the passing of this act. ...That every citizen so enrolled and notified, shall, within 6 months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, a and a knapsack [etc] ... and shall appear so armed, accoutred and provided, when called out to exercise, or into service..and that from and after five years from the passing of this Act, all muskets for arming the militia as herein required shall be of bores sufficient for balls of the eighteenth part of a pound. And every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

"Section 2. EXECUTIVE OFFICERS, &c;. EXEMPTED

That the Vice-President of the United States...all post-officers..all pilots..; and all persons who now are or may hereafter by exempted by the laws of the respective states, shall be, and are hereby exempted from militia duty, notwithstanding that their being above the the age of 18 and under the age of 45 years."

"Section 3. "MILITIA HOW TO BE ARRANGED

Within one year after the passing of this act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions, and companies.and each division, brigade, and regiments, shall be numbered at the formation thereof, and a record made of such numbers in the adjutant-general's office in the state; and when in the field, or in service in the state, each division, brigade, and regiments shall, respectively, take rank according to their numbers, reckoning the first or lowest number highest in rank. That, if the same be convenient, each brigade shall consist of four regiments; each regiment of two battalions; each battalion of five companies; each company of Sixty-four privates. That the said militia shall be officered by the respective states, as follows: To each division, one major-general and two aides-de-camp, with the rank of major; to each brigade, one brigadier-general, with one brigade-inspector, to serve also as brigade-major, with the rank of a major; to each regiment, one lieutenant-colonel commandant; and to each battalion, one major; to each company, one captain, one lieutenant, one ensign, four sergeants, four corporals, one drummer, and one fifer or bugler. That there shall be a regimental staff, to consist of one adjutant and one quartermaster, to rank as lieutenants; one paymaster; one surgeon, and one surgeon's mate; one sergeant-major; one drum-major, and one fife-major..."

"Section 7. RULES OF DISCIPLINE:

That the rules of discpline, approved and established by Congress in their resolution of 29th of March, 1791, shall be the rules of discipline to be observed by the militia throughout the United States... It shall be the duty of the commanding officer at every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained agreeably to the said rules of discipline".

"Section 11. ARTILLERY &c;. NOW EXISTING, TO RETAIN THEIR PRIVILEGES:

And whereas sundry corps of artillery, cavalry, and infantry now exist in several of the said states, which by the laws, customs, or usages thereof have not been incorporated with, or subject to the general regulations of the militia: Be it further enacted, that such corps shall retain their accustomed privileges, subject nevertheless to all other duties required by this act, in like manner with the other militia." [These privileges were confirmed in the 1903 and 1916 acts for groups that were in continuous existence since 1792]

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 legisatures.

A. No, the 1792 law was the one that (obviously) Congress passed. However, there were other laws proposed that would have resulted in a much different militia. You cannot say that the proper limits to a power granted under the Constitution are shown by the laws passed. All you can say is that the 1792 Act was one way of organizing the militia system. There certainly were other plans proposed that would have created a very different type of militia in the nineteenth century as we will see below. Some people did object to these plans on the grounds that it gave the federal government too much power, but just as common were objections on socioeconomic grounds.

3.31 Could Congress prevent the States from creating militias?

A. Probably not; but the question has never seriously been raised since 1789. The great anti-federalist fear of the central government disarming the state militias against their opposition never occurred. The 1792 law resulted in a militia system with very little central control. There were no penalties placed on states that refused to create and maintain militias as required by the 1792 Act. Rather than Congress preventing or disarming the militias, it was the states who let the militia system gradually die out within a federal law that would not change substantially for 111 years.

3.32 Why did the 1792 Act provide that militiamen purchase and maintain their own weapons? How did this change over time?

A There were two basic reasons for deciding that militiamen maintain their own arms, rather than the government providing all the arms. One was the fear that the government could give arms to some and deny them to others. The other was simply the cost of arming so many militiamen.

However, as time went on, fear of the former decreased, and willingness to bear at least a part of the burden of arming increased. A number of people in Congress during the period 1789-1807 argued that the federal government should bear the cost of weapons, rather than individuals. The main reason for this was socioeconomic--poor people were generally the ones who had to serve in the militia to begin with, and it seemed harsh to also make them buy weapons.

The 1792 law requiring that militiamen arm themselves really upset a lot of poor people, who had to buy expensive military weapons, which were easy for the rich to afford. What many of them wanted was something like a property tax, which would then be used to buy guns for distribution. That way, the rich would be making a contribution proportionate to the contribution of the poor, towards the defense of the country.

The Southern states and the Western states and territories had extremely severe shortages of weapons in the early Republic. They were hard to get, and expensive when they could be gotten. Southerners and Westerners tried to get Congress to buy weapons for the militia, or loan weapons to the militia, or to do something about the situation.

However, Congress repeatedly refused to do anything about the situation. They threw a sop to Southerners and Westerners in the late 1790s by purchasing $30,000 worth of weapons to sell to the states, but that was about it.

After the Chesapeake Incident of 1807, when a British ship fired on a U.S. Navy ship, killing several crewmen, then boarded it, the U.S. almost went to war with Great Britain. In the end, it decided not to, but it did make several improvements to its military situation. One was started by Congressman John Randolph of Roanoke, the conservative Virginian, who argued that the United States begin appropriating a sum--around a million dollars or so--each year to buy arms for the militia. The U.S. would then distribute the arms proportionately to each state, which would then dispense them to the militia. In this way, the U.S. government could not be said to be withholding any arms, etc. The sum got debated down to $200,000, to Randolph's displeasure, but this was passed, and became an amazingly long-lasting piece of legislation.

This law had several important consequences. In one respect, it helped the militia, because it gave states a "carrot" (free arms) to encourage them to maintain their militias. On the other hand, once states started getting weapons from the federal government, they shut down state armories, like the one in Virginia, and stopped buying weapons themselves, which a number of states, including Maryland, New York, and Vermont, had done.

As time went on, less and less of the militia was armed. Even early on, western and southern militias had a big problem procuring arms. And as militia service fell into disrepute, it was easier for people to get away without having weapons.

States also had a problem of what to do with the weapons they got from the federal government. The logical solution, which was suggested time and time again by adjutants-general and governors, was to build armories, keep the guns in the armories, pay for people to clean and maintain the arms, and send them out in time of emergency.

However, in practice this was really difficult to do, because members of the militia put considerable pressure, political and otherwise, on the state governments to distribute the arms. Militia companies were more likely to attract members if they had arms; they were more likely to gain public respect and acceptance, and in general this was a big morale booster.

The problem was that giving arms to the militia--either the compulsory militia or the volunteer militia--was the same as throwing them away. Time and time again it was proven that the militia could not take care of its weapons. For instance, a volunteer company might get weapons and take care of them for a few years. Then the captain might resign his commission and move to another state. Since he was the motivating force behind the militia company, it disbanded after he left, and no one bothered to return the arms to the government. Five years later, or so, someone found the box of weapons, badly rusted, in an outhouse, and reported the same to the governor. This was an actual example from Alabama.

What states tended to do was to strike a compromise. They would not give arms to the regular militia, but they would give them to the volunteer companies, on the theory that the volunteer companies were more efficient and easier to keep track of. So state arsenals generally just became holding depots for weapons that went from the federal government to the volunteer companies. The arms attrition, as you might suspect, was huge, as volunteer company turnover was incredible, so states were never able to accumulate very many weapons.

Another source of militia arms was "factory seconds." Factories making guns for the federal government, or the federal arsenals doing the same (Harper's Ferry and Springfield) would sell the weapons that did not meet inspection. Clever people would buy these below-standard weapons and sell them to the militia cheap, since militiamen (in those states with effective enforcement) were subject to fines if they didn't show up to musters with weapons.

Different people had different opinions on which weapons would last longer. Some militia officials didn't want to get small arms like cavalry pistols and sabers, because those were lost most easily. Others liked to try to get expensive and fancy weapons like Halls' Rifles, on the theory that the militia would spend more time keeping them in working orders. Some wanted to get huge items, like cannon, on the theory that it was difficult to misplace them.[MP]

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?

A. It's well-known among military historians and Jefferson scholars that Jefferson wanted a strong select militia. You can find plenty of evidence on this material in The Writings of Thomas Jefferson, vol. XI, or Reel 55 of the Thomas Jefferson Papers of the Library of Congress (Microfilm edition), or in the published Jefferson-Kosciuszko correspondence.

Jefferson called for a system of classification of the militia designed to allow the federal government extended use of the state militias. Jefferson tried to get this implemented in 1805, but the classification plan met with considerable opposition in Congress, including opposition from key New England Republican Joseph Varnum.

Among some extracts, we see Thomas Jefferson writing to Henry Dearborn on October 23, 1805, estimating how many men aged 18-26 the government could conscript once it set up a classified militia. On December 31, 1805, Thomas Jefferson told Henry Dearborn (his Secretary of War) that "the important thing is to get the militia classed so that we may get at the young for a year's service at a time." In 1807, Thomas Jefferson wrote James Madison that "Convinced that a militia of all ages promisucously are entirely useless for distant service, and that we never shall be safe until we have a selected corps for a year's distant service at least, the classification of our militia is now the most essential thing the United States have to do..."

On May 2, 1808, Thomas Jefferson wrote Taddeusz Kosciuszko that "Against great land armies we cannot attempt it but by equal armies. For these we must depend on a classified militia, which will give us the service of the class from 20-26, in the nature of conscripts, composing a body of about 250,000 to be specially trained."

It is easy to find James Madison arguing for greater control over the militia. During the Constitutional Convention he argued that the federal government should appoint all militia generals. During the first session of Congress, which passed the Bill of Rights, Madison also argued for greater control. And during his presidency, Madison called for a system of classification just like Jefferson did.

Both Jefferson and Madison believed that the militia was the best security, but only if the national government could use them effectively, and this could only be accomplished by greater federal control. [MP]

3.34 Was the 1792 Uniform Militia Act found constitutional?

A. Yes, almost self-evidently so. The following excerpts are from the judgment of the U.S. Supreme Court in the 1820 case of Houston v. Morris, found at 5 Wheaton 1.

The case dealt with whether a state could punish someone for failing to show up for federal service during the war of 1814. Most of the judgment is taken up with discussing the finer points of the limits of state power over the militia. However, all sides agreed that the Constitution had given the federal government very strong power over the militia. Note the comments of Justice Washington on the the wisdom of the 1792 militia laws as seen from the perspective of 1820.

From the opinion of Justice Washington:

"1. What are the powers granted to the general government, by the Constitution of the United States, over the militia? and 2. To what extent have they been assumed and exercised?" (p.12)

"After the Constitution went into operation, Congress proceeded, by many successive acts, to exercise these [the militia clause] powers and to provide for all the cases contemplated by the Constitution.." [p.13]

"The [Uniform Militia Act of 1792] declares who shall be subject to be enrolled in the militia and who shall be exempt; what arms and accoutrements the officers and privates shall provide themselves with; arranges them into divisions, brigades, regiments, battalions and companies, in such manner as the state legislatures may direct; declares the rules of discipline by which the militia is to be governed, and makes provision for such as should be disabled whilst in the actual service of the United States...."

"The laws which I have referred, amount to a full execution of the powers conferred upon Congress by the Constitution. They provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion. They also 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; leaving to the states, respectively, the appointment of the officers and the authority of training them according to the discipline prescribed by Congress."

"This system may not be formed with as much wisdom as, in the opinion of some, it might have been, or as time and experience may hereafter suggest. But to my apprehension, the whole ground of Congressional legislation is covered by the laws referred to. The manner in which the militia is to be organized, armed, disciplined and governed, is fully prescribed... "

[at 18] "..So long as militia are acting under the military jurisdiction of the state to which they belong, the powers of legislation over them are concurrent in the general and state government. Congress has power to provide for organizing, arming and disciplining them; and this power may be unlimited, except in the two particulars of officering them and training them, according to the discipline to be prescribed by Congress, it may be exercised to any extent that may be deemed necessary by Congress. But as state militia, the power of the state governments to legislate on the same subjects, having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the states, subordinate nevertheless to the paramount power of the general government, operating upon the same subject."

[at 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. Congress has power to provide for organizing, arming and disciplining the militia; and it is presumable, that the framers of the Constitution contemplated a full exercise of these powers. Nevertheless, if Congress had declined to exercise them, it was competent to the state governments to provide for organizing, arming and disciplining their respective militia, in such manner as they might think proper. But Congress has provided for all these subjects, in the way which the body must have supposed the best calculated to promote the general welfare, and to provide for the national defence."

[at 23] " Upon the subject of the militia, Congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the states on these subjects, except so far as it has been permitted by Congress; although it should be conceded, that important provisions have been omitted, or that others which have been made might have been more extended, or more wisely devised."

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.

A. Congress' power to organize definitely did give it the right to say that some militia units should not exist. For instance, the 1792 law that Congress passed limited volunteer companies of cavalry and artillery to one per regiment. States that allowed more previous to this law had to disband the extra. As to equipment, they could carry any additional equipment they wanted to, but Congress specified rather rigorously what equipment they were supposed to have.

It is true that not all states followed the 1792 law to the letter, nor did all individuals. There was not a lot of compulsion in early American society. [MP]

3.36 Did the states object to the degree of central control over the militia in the 1792 Uniform Militia Act?

A. States did not object to the 1792 Act, except that some called for stricter regulations. EVERY SINGLE STATE passed a new set of militia laws, completely reorganizing their militias, so as to conform with the militia organization mandated by Congress. Whenever states changed their militia organizations after that, they made sure they did it according to the laws set forth by Congress. And when Congress passed new laws regarding the militia, the states followed those laws, too.

As a matter of fact, it was a quite frequent occurrence for state legislatures to petitionCongress, asking Congress to legislate a new, more effective organization of the militia. Did the states do it on their own? No. Partially this was because they wanted to pass the buck on a potentially unpopular measure, but also because they recognized that Congress had the power to do it, as the petitions all acknowledged. These petitions and resolutions are available in the House and Senate Document compilations, as well as state legislative journals.[MP]

3.37 Examples of state petitions and resolutions to Congress to legislate a new, more effective organization of the militia.

December 16, 1823, Ohio House of Representatives. Mr. Blackburn adopts the following resolution and preamble: "Whereas the experience of all ages of the world has shewn, that standing armies are dangerous--that a well organized and disciplined militia composing themselves the mass of the community, with attachment to the government in their hearts and arms in their hands, constitute the best safe guard of national liberty, the strongest bulwark and only sure defence of a republican government, and Whereas the experience of this nation as well in time of peace as of war has evinced that numerous and weighty evils result from the want of a uniform system of militia organization and discipline throughout the union; And Whereas the national government has the constitutional right and the sole power to remove these evils, therefore, Be it resolved by the General Assembly of the State of Ohio, that our Senators and Representatives in Congress be requested to use their utmost exertion to procure the passage of an act establishing a uniform system of organization and discipline for the militia of the United States.

January 5, 1832, Ohio House of Representatives, Governor Duncan McArthur sends to the general assembly a communication from the governor of New Hampshire with certain resolutions of the legislature of that state relative to the passage of a law by Congress for the more perfect organization of the militia of the several states.

December 7, 1832, Message of former militia major general and current governor Robert Lucas to the General Assembly of Ohio: The Militia is the dread of tyrants and the guard of freemen; they form the strong arm of national defence, and are the first resort, in case of hostilities. I have long been of the opinion, that were the militia put under that organization and discipine, of which they are susceptible, and when called into service, clothed and equipped by the public, as regular troops are, that they would be as efficient in the field as regulars. But the particular power of organizing, arming, and disciplining the militia, and to provide for their government when in the service of the United States, is granted by the Constitution to the General Government, with the exception of the appointment of the officers by the states, and it is much to be regretted, that Congress has not given to this important subject, a greater share of attention than appears to have been done. Our present militia law is defective in all its parts, so much so, that it is extremely difficult to keep the militia organized under it. I therefore recommend its revision, and hope a law may be passed of sufficient energy to infuse a spirit of emulation throughout the whole body."

January 10, 1833, Ohio House of Representatives, Resolution of General Assembly: "Resolved by the General Assembly of the State of Ohio, that we view with deep concern and anxious solicitude, the present deranged and disorganized state and condition of the militia and military strength of our beloved country. "Resolved, that we deem it expedient that a more effective system of organization and discipline be adopted by the authority of the general government. "Resolved, that our Senators in Congress be instructed, and our Representatives requested to endeavor to procure the passage of a law for organizing and disciplining the Militia of the United States, in conformity to the power vested in Congress by the Constitution."

March 28, 1833. Veto message by Massachusetts Governor Levi Lincoln: "The power to organize, to arm, and to discipline, is vested in Congress. The ORGANIZATION implies the right to prescribe who shall be made liable to the duty of militia service, and their arrangement into distinct Bands and Corps for its performance. The ARMING respects the authority to prescribe the appropriate arms and accoutrements with which the Militia shall be proivded, and with which they shall be exercised. And the DISCIPLINING implies instruction in the use of these arms, and in the drill required for the knowledge of the soldier in parade, evolution, and manoeuvre, under the organization to which the Militia may be subjected. These positions are plain, simple, and incontrovertible, and comprise the powers which Congress may exercise over the Militia of the Union. The RESERVED authority to the States, to appoint Officers, and to train the Militia, may be considered subordinate to, and dependent upon the previous action of the National Government in the exercise of the DELEGATED authority. Unless, under the latter, the Citizens are enrolled and organized into Companies, Battalions, Regiments, Brigades, and Divisions, the character, rank, and authority of the Officers to be appointed by the States cannot be determined; for the offices dependent upon this organization not being created, no appointments could be made. And again, unless Congress prescribe the discipline, the reserved power to the States to train the Militia, which is restricted to the mode of discipline thus to be prescribed, does not practically exist. [IMPORTANT --MP --> ] It will readily be admitted, that the states could not adopt an organization, nor enforce a system of discipline of their own. A failure on the part of Congress to enroll for organization, would devolve no more right upon the states to direct that enrollment than a failure to exercise any other of the delegated powers, such as the coining of money, passing acts of naturalization, or of bankruptcy, estabshing Post offices, etc., would authorize the State Governments to pass Laws for the accomplishment of such objects. By the 10th Article of the Amements to the Constitution, it is declared, that "the powers not delegated the United States, nor prohibited to the states, are reserved to the states respectively, or to the people." The expression is in the disjunctive, and by an obvious and just construction, if the power be either thus deleted, or prohibited, it no longer remains to the states. On the other hand the exercise by Congress of the delegated power imposes the obligation upon the states to act in conformity to it, under their reserved authority. They are bound to provide for the appointment of officers, according to the manner of organization, and also to require the trainings in pursuance of the discipline which may be prescribed. Otherwise, the reserved are repugnant to, and destructive of, the delegated powers. If the states may be at liberty to refuse to provide for the election and appointment of officers, and the trainings of the Militia, the power to organize and to discipline becomes utterly nugatory. Without officers there can be no such thing as military organization, and without training there is no military discipline. Whenever, therefore, under the Constitution, Congress provide for the organization of the Militia, the respective states are bound to the appointment of officers appropriate to that organization; and they are no less obliged to give effect to the instruction, which is required by the system of discipline which is prescribed. Both these obligations rest upon the same authority. It will not be pretended by any one, that the Legislature of a state may neglect to enact, or may repeal an enactment, by which the offices, created under the form of organization provided by Congress, may be filled..." [MP]

3.38 The federal government did very little to exercise its power over the militia in the nineteenth century. Right?

A. That depends on what you define as "little." In terms of passing laws to organize the militia, you are correct; the Uniform Militia Act of 1792 lasted until 1903. However, the United States spent money to arm the state militias throughout virtually all of that period, as well as spending money buying manuals and other miscellaneous items. The federal government tried many times to reform the militia, especially in 1805, 1807, 1812,1814-1815, 1817, 1826, and 1840. The federal government called up the militia countless times during this period, as well.

There was a real difference between concepts of reform on the state level and on the federal level. On the state level, "reform" usually meant finding some way to lower the burdens of militia service, or at least distribute them more equally. On the federal level, "reform" meant improving the military efficiency of the militia. Almost inevitably, the plan put forth for this was classification. Classification was a concept that involved splitting military-age manpower into several groups (different plans ranged from two to four, usually). Older men would have a very small burden, while most of the weight of militia service and training would rest on young males, usually aged 18-26, sometimes 21-26. Usually, this would mean training about thirty days a year (as opposed to the then-current 3-6). Classification plans also almost always involved greater federal control over the militia, since presidents such as Washington, Adams, Jefferson, Madison, Monroe, Jackson, and Harrison all supported both greater federal control over the militia and classification (JQ Adams appears to have been lukewarm, while Tyler didn't like the military).

Resistance in Congress to the classification plans, which always stopped them, was based on two grounds: 1) an unwillingness to make young men shoulder the whole burden, and 2) an unwillingness to give the federal government more control over the state militias than it already had.[MP]

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?

A. Every single state had militia laws. The notion that the regulation of the militia was up to individuals in local communities is a present-day one. Depending on the state, even most volunteer militia companies had to get permission or authorization (often through special laws passed by state legislatures) and/or had to conform to the state regulations regarding the militia or volunteer militia. [MP]

3.40 How did individuals become 'enrolled' in the militia?

A. The actual procedure varied from state to state. In most states at most times, it was the responsibility of the local officers to find out who was new to an area and enroll them in the militia.

For instance, here is the 1836-37 Revised Statutes of North Carolina:

"That all free white men and white apprentices, citizens of this state, or of the United States, residing in the State, who are or shall be of the age of eighteen, and under the age of forty-five years, shall, as soon as is practicable, be severally and respectively enrolled in the militia of this State, by the captain or commanding officer of the infantry company within the bounds of whose district...such citizen shall reside; and it shall, at all times, be the duty of every captain or commanding officer of any community, to enrol every such citizen, except as hereinafter excepted; and also those between the ages aforesaid, and not exempt by law, who may from time to time, come to reside within the bounds of his district, and remain therein thirty days; and he shall without delay, notify such citizen of his enrolment, by a proper non-commissioned officer of the company, by whom the notice may be given."

3.41 What happened to compulsory militia duty as called for by the 1792 Uniform Militia Act?

A.The 1792 Uniform Militia Act represented the high point of the militia under the U.S. Constitution. All free able bodied white male citizens were part of the militia should do militia duty. Militia duty meant going for training with the ever present danger of being forced to go on active duty and fight or put down a riot or insurrection. Rather than a right, being a member of the militia was a responsibility. It was widely seen as an undesireable burden, which was why many states abolished the compulsory militia systems in the 1840s, and went to a volunteer militia system that eventually, a long time later, evolved into the National Guard. Occasionally states would grant privileges to members of the militia, such as not having to pay a poll tax. But these were intended simply to lessen the burden of militia service, and were not a right.[MP/SS]

3.42 Why did the militia decline?

A. The militia declined because the arguments against militia service won out over those that suggested the advantages of it. There were two main schools of opposition to the militia. Many argued against the militia on moral grounds: it promoted drunkenness and gambling, among other vices. Pacifists (belonging to a strong peace movement in the early nineteenth century) argued that the militia promoted militarism. The other school of opposition, and probably the stronger one, was opposed to the militia on socioeconomic grounds. These people were angry that the rich could always get out of militia service. It was a common lament that "the poor had to pay in order to protect the property of the rich, who paid nothing." Against these arguments, supporters of the militia tried to portray the militia as a good institution: a) protector against tyranny, b) defense against foreign invasion, and increasingly, c) defense against mobs and riots. They also tried to reform the militia, to make it more "moral" and less inequitable. However, the rationales for militia service were not convincing; it was pretty clear that the federal government was not about to become "tyrannical" while the standing army seemed a better defense against (unlikely) foreign invasion than the unreliable militias. The mob and riot argument was more successful, but the compulsory militia was not needed for this; a volunteer militia could serve just as well. On the reform front, the reformers basically failed in their endeavors. As a result, people grew more and more unwilling to participate in the militia system, thus creating its 'decline.' [MP]

The first Congressional definition of the militia started out as all free, white able-bodied males from 18-45, except those exempted. Congress gave states the power to exempt anybody they wanted, and states used the exemption power extremely liberally. This resulted in huge segments of society being exempted from militia duty. Indeed, some states began early on to exempt entire age groups from militia duty. For instance, Massachusetts soon exempted everybody aged 41-45. Then they exempted people aged 35-45. Eventually, it got down to the point where only 21-30 year olds had to serve (if they were not exempted in other ways (such as serving in volunteer fire companies or any of the other exemptions). Massachusetts was not at all uncommon in this regard.[MP]

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."

A.This is advisory opinion, which is a way that a state can get in advance an opinion as to the constitutionality of legislation. In practice, an opinion such as this disposes of the question at the level of the Massachusetts courts.

In Opinion of the [Massachusetts] Justices 39 Mass. 571 (1838), the Court first examines the 1792 Uniform Militia Act and the power given to states to exempt people from militia and then goes on:

"Under this [power to exempt] provision, the State legislature of this Commonwealth and as we believe of other States, have made large additions to the numbers of those exempted from duty, and of course exempted from enrollment, and this without any question of its legality or validity. In this State these exemptions have been extended to ...clergymen, schoolmasters, professors and students in colleges, Quakers, engine men, and other large classes of persons...

"The act conferring this power [to exempt] is unlimited in its terms; it exempts all persons who may be hereafter exempted by the laws of the respective states...Besides, it is apparent from the whole frame and spirit of this act of Congress [the 1792 Act], that it was intended to depend upon State legislation to carry it into practical operation; and in fact, if the State governments should neglect or refuse to pass the necessary laws, or should exercise many of the powers unquestionably vested in them by it, with a view to defeat its operation, it could not be carried into effect. But it is equally apparent, that trust and confidence were reposed in the State governments, to do that part of the duty incumbent on them, and that Congress relied upon the fidelity and patriotism of the State governments, to cooperate with them, sincerely and earnestly, in promoting the great purpose of the act, that of more effectually providing for the national defence, by establishing a uniform militia.

"There is, therefore, no grounds to infer that a power conferred upon the State governments in terms, was limited or restrained by implication. This is the construction which we think must be given to the act of Congress as it is, an act which has been in force almost fifty years. But the whole power is with the general government; and if Congress shall find, from the course of State legislation, from the altered condition of the United States during this long period, or from any other circumstances, that the existing laws require modification and amendment, it is in their power to make such amendment, and to designate and define the powers of the State governments on this subject, in such manner as the good of the whole country shall, in their judgment, require.

"..We are therefore, of opinion, as first above expressed, that it is competent for the State legislature by law to exempt from enrolment in the militia, all persons under twenty-one and over thirty years of age."

And once the Massachusetts Court said that there was no limit to the power of the states to exempt, exempt they did. This opinion was given in late 1838--in 1840, Massachusetts ended compulsory militia service completely.

3.44 Did all parts of the militia system decline equally?

A. No. Ironically, the states with the best militias--New England states, generally--were the first to go, largely because being the best meant having the most coercion, which would make them the most unpopular. Southern and Western state militias, which were always less efficient, thus lasted longer, though they declined, too. Eventually, whether by law or simply in practical terms, most states began to rely on a system of volunteer militia units. In some states, this system was highly regulated (as in Massachusetts, for instance) and replaced the existing structure. Other states imposed varying degrees of regulation, while a few in practice cared little about regulating them (Indiana, for instance). The volunteer units were often armed by the state government. In some cases, switching to a volunteer system did not help the militia's decline. For instance, while the compulsory militia system existed, many people chose to serve in the volunteer militia instead, because it was less unpopular. However, once the compulsory system was abolished and the state went to a volunteer militia system, many people dropped out of the volunteer militia units because they had only been members as a way to avoid duty in the compulsory militia (which now no longer existed). The volunteer militia systems are basically the forerunner of today's National Guard. [MP]

3.45 Could states disband militia units?

A. Authority to disband units is inferred from the organizational powers granted in the Constitution. Congress is given the authority to organize the militia. It does so via laws. States therefore not only have the power but the obligation to disband units that for whatever reason do not meet the standards of that organization. This was something that they frequently did, for instance, disbanding volunteer companies that had shrunk below the minimum number required--despite the willingness of the remainder to continue training. States also disbanded militia units for other reasons. For instance, in 1837, Massachusetts disbanded six militia companies that refused to obey orders. In 1855, Massachusetts disbanded all militia companies composed largely of Irishmen. [MP]

3.46 There is a notion that among the historical militias, the volunteer companies were self-regulating. Is this correct?

A. Volunteer companies were very common in the pre-Civil War era. Depending on the state in which they resided, they could be subjected to a degree of regulation that varied from extreme to very light, with most cases falling somewhere in the middle. Even those states which basically did not bother to regulate volunteer companies usually had some (unenforced) laws on the books. Alabama is an example of a state with a fair amount of regulation, but a tendency on the part of the state legislature to grant "corporation" status to volunteer militia companies, which made it much more difficult for the state government to control them (and militia officials complained loudly about this).

Historically, some states required self-started militia groups to petition the legislature for incorporation, others simply to provide a reasonable justification to the governor for him to accept or refuse, etc. Today, in the 1990s, no state has any provision for accepting or authorizing a self-started militia group.

There were volunteer companies that were completely independent of all state organization and law, but these were a distinct minority, often consisting of blacks or other people that contemporary society did not like to recognize, or sometimes the exact opposite--very elite people who ran them as social clubs rather than military units.

But these organizations were just private armies. This was the case for many black military units before the Civil War in Northern cities, for instance. They wanted to become part of the militia, but generally the states would not let them join. This was very frustrating for them, because it meant that their units would just be private little armies and not part of the militia. See 3.52below. [MP]

3.47 Example of regulations governing volunteer militia units.

A. The amount of regulation of volunteer units varied by state. Here are some topic headings from the North Carolina Revised Statutes of 1836-37, which is a state that imposed a medium amount of regulation on volunteer units, regarding volunteer cavalry units.

"1. Regiments of cavalry, how to be formed, officered, and equipped. (a page long set of regulations of how volunteer cavalry troops will be formed, clothed, officered, and equipped]

2. Troops of cavalry when to muster, how returns to be made, etc. (a paragraph detailing how many times per year volunteer cavalry units will muster, where they will muster, the fines for not making returns to state authorities, etc.)

3. Field Officers of Cavalry to review and make returns. (a paragraph detailing how cavalry will be reviewed and returns made of the reviews)

4. Cavalry Courts Martial. (a paragraph detailing how volunteer cavalry units will conduct trials)

5. Fines of cavalry officers and privates (a paragraph establishing fines for the same).

6. How cavalry fines to be appropriated (they will be used first to buy trumpets, then for other purposes).

7. Duty of the adjutant of the regiments (a paragraph detailing his duties volunteer cavalry companies were organized into volunteer regiments)

8. Certain sections of this act to apply to the cavalry. (detailing certain parts of the militia act that applied to the compulsory militia that also applied to the volunteer cavalry units).

9. When cavalry troop less than required by law (discusses disbandment)."

Just after this provision is another one that begins to detail how volunteer companies of artillery, light infantry, grenadiers, and riflemen may form, following which are several pages of regulation of the same.

This law is a typical example of laws that existed in most states. Some were far more elaborate. [MP]

3.48 What happened as opposition to the compulsory militia grew? Did the individual states take action?

A. "In 1831 Delaware abolished its [militia] system altogether. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856." - Mahon , p. 83

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?

A. Yes, but the militia that had existed from 1792 was much less than the intended ideal of its supporters. Over time, those who opposed the compulsory militia elected leaders who agreed with this view. But each state created its own exemptions in response to its own political climate.

3.50 When did the term "unorganized militia" originate?

A. The term "unorganized" did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.

However, the 1792 Uniform Militia Act explicitly allowed the states to determine who was exempt from militia service. So states divided their militias into two sections, the "organized" militia and the "unorganized" militia. In this way, the letter, though not the spirit, of the 1792 law could be complied with. However, only the "organized" militia would have responsibilities. These people would be volunteers, people who actually wanted to perform militia service; they gradually evolved into the National Guard. These people would have uniforms, guns, and would drill, review and encamp.

The other people were the people who did NOT want to be in the militia. Accordingly, members of the "unorganized" militia were NOT supposed to perform any duty or carry any weapons or have any responsibilities. All that would remain was the nominal authority of the state over them for military manpower purposes. This group of people had no militia responsibilities at all (in some areas they had to register, like for the draft today). In this way states could flaunt the spirit of the 1792 Uniform Militia Act, while nominally keeping to the letter of it.

The term "unorganized militia" was kept in use in subsequent decades as a statutory "reminder" that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the "unorganized militia," the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise.

But being in the "unorganized militia" conveys to you no rights, only the possibility of responsibilities. All it means is that you belong to that class of the militia which has no responsibilities. Being in the militia allows you to do not a single thing, because only the state and federal governments can create (working together) active militia systems. To date, their interest in doing so has largely concentrated on the National Guard.

Again, let me emphasize that there is not a single right guaranteed to you by virtue of your being in the militia. Here I am excepting the right to keep and bear arms, not to necessarily agree or disagree with any particular interpretation of the Second Amendment, but rather to avoid gun control issues which are irrelevant to this issue. [MP]

3.51 Who says that the term "unorganized militia" was a way for states to avoid the intent of the 1792 Uniform Militia Act?

A. I [MP] say so having studied the rise of opposition to the state militias in the early nineteenth century, which eventually resulted in this ruse in most Northern states, and attempts to do the same thing in many Southern states. The whole point of creating an unorganized militia was so that the majority of citizens would have no militia responsibilities at all. This is not a big secret that I somehow uncovered; it has been well known among military historians for ages. [MP]

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?

A. The following excerpts are taken from the January 13, 1860, issue of The Liberator, an abolitionist newspaper edited by William Lloyd Garrison. Included are excerpts from the governor's veto message and the advisory opinion of the Massachusetts Supreme Court.

The governor's veto message addresses the Tenth Amendment and the militia, while the Supreme Court determined that the Federal government had the power to determine who is and who is not in the militia.

Explanatory comments by MP are in brackets [ ].

From the veto message of Gov. Nathaniel P. Banks upon a bill entitled 'An Act for Revising and Consolidating the General Statutes of the Comonwealth' of Massachusetts:

"In the controversy upon the adoption of the Federal Constitution in this, as in other States, very earnest debate arose upon the question, what powers were reserved to the States, and the Constitution was finally adopted by the requisite number of States, with an understanding that the provisions afterwards embodied in Article Tenth of Amendments should be incorporated into the Constitution, to wit: '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.' The division of powers, therefore, is perfectly clear so far as the subject is concerned. That which is not granted to the General Government, nor incident to the powers granted, is reserved to the States, unless expressly prohibited.

"The power 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 officers and the training the militia according to the discipline prescribed by Congress,' is one of the powers expressly conceded to the Federal government in the first article, eighth section of the Constitution of the United States.

"The power granted in express terms to the Federal government by this section of the Constitution is that of 'organizing, arming and disciplining the militia;' that reserved to the States is the appointment of officers, and the authority of training the militia, 'according to the discipline prescribed by Congress.' The power to organize includes that of determining what classes of person shall be so organized; and this has been determined by an act of Congress approved May 8, 1792, entitled 'An act more effectually to provide for the mutual defence, by establishing an uniform militia throughout the United States.' [better known as the Uniform Militia Act of 1792]

"The persons who, by these provisions of the Constitution and Legislature of the United States, are to be organized, armed and disciplined as an uniform militia throughout the United States, are 'each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of the age of 18 years, and under the age of 40 years.'[this was an error, perhaps on the part of the type-compositor; the upper age limit was 45 years] It is not, in my judgement, within the power of the Legislature to change this basis of enrollment, or enlarge or diminish the classes of men embraced in this organization of the militia. It is not sufficient answer to say that, in changing the phraseology of the statute of the United States in the enactment of our own militia laws, we still leave public officers, in the enrollment of the militia, to follow the laws of the United States, without committing the people of this State to a recognition of distinctions between men that are not acceptable. The militia is a national institution. [This may be hard to follow without understanding the circumstances; the Massachusetts legislature had proposed changing Massachusetts militia law to include blacks, but the 1792 U.S. law specified only whites would be in the militia. Legislators thus tried to "rephrase" the provision of the 1792 U.S. law in such a way that blacks could be permitted. Nathaniel Banks would have none of this.]

"In all that pertains to organization, arming, or disciplining the militia, our laws are but a republication of the laws of the United States, for the information and instruction of the citizens of this State; and if in this republication we misrepresent the law, we lead them into innumerable and remediless difficulties and constantly embarrass the administration of our laws. Still less it is to be urged, that assuming a recent decision of the Supreme Court of the United States [Dred Scott] to be rash, that certain persons are not citizens, and therefore their exclusion need not be expressed or implied in our re-enactment of the militia laws. The statutes of the Commonwealth are yet free from the most distant recognition of the doctrines of that decision, and I trust may forever so remain.

"For these reasons, I believe the changes proposed in the basis of enrollment to be palpably in contravention of constitutional law, and that they cannot be executed by this department of the government without an infringement of the Constitution which I have sworn to support, I have thought it an imperative duty to withhold Executive approval--and I therefore return the Bill to the House in which it originated, that it may be considered by the Legislature, conformably to the provisions of the Constitution of this state.

"Under ordinary circumstances, I should not hesitate, in a case like the present, to act upon my own judgment; but inasmuch as a disapproval of the legislative proposition to which I have referred imposes upon me the necessity of rejecting, without discrimination, every statute approved by my predecessors, from the foundation of the government, and every amendment proposed by the present Legislature, I have thought it to be my duty, not only to give to the subject the most serious consideration, but to seek direction from the high legal authorities which the Constitution and laws enable me to consult. [by vetoing this measure, Banks was vetoing the entire Revised Statutes]

"It is unnecessary for me to ask of the Legislature a candid consideration of these able State papers. They cannot be too carefully considered by legislators or by the people. It is unnecessary for me to call the attention of the Legislature, in view of the rugged paths of national life upon which, too obviously, we are entering, to the expediency of maintaining the institution of the militia, and perpetuating the harmony of feeling and interest of its members [a volunteer militia by this time], with the principles and institutions of the Government, of which as citizens and soldiers they are a cheap support.

"Nor is it necessary to enlarge upon the expediency, in every consideration of public policy, of a constant and faithful adherence to constitutional obligations. We can present no more reliable evidence of strength than the fact, that we can maintain our own privileges without invading the rights of others; and for a State inflexibly determined to submit to nothing wrong, there is no safer rule of action than to ask nothing that is not right.

"I requested the Attorney General, therefore, to prepare an opinion upon two propositions, which I have the honor to transmit to the Legislature, and subsequently, upon the request of the Governor and Council, the Supreme Court [of Massachusetts] submitted an opinion upon the same questions, [see below]...

"The assessors of the several cities and towns, are annually required, in the month of May, to make a list of persons liable to enrollment [this is the "unorganized militia"] ; to place a certified copy thereof in the hands of the clerks of their respective towns and cities, and to transmit returns of the militia thus enrolled to the Adjutant General. A certified copy of the returns is annually transmitted to the Government at Washington by the Governor of this Commonwealth.

"The militia thus enrolled are liable to be called into active service at any moment, in case of war, of invasion, to prevent invasion, for the suppression of riots and to aid civil officers in the execution of the laws of the Commonwealth. It seems to me to be a public wrong of the highest character, by an incorrect statement of the law, to mislead civil officers in the performance of their duties, or to require of the Governnor of the Commonwealth to transmit to the Department of War an enrollment palpably in conflict with the laws of the United States. [this is a huge rationalization]

(signed)
Nathaniel P. Banks." [MP]

3.53 Why did the Massachusetts Supreme Court say in 1859 that the state could not allow blacks to serve in the militia?

A. From the advisory opinion of the Massachusetts Supreme Court, Opinions of the Justices 80 Massachusett 614, 80 Gray 614. The meaning of an advisory opinion is discussed earlier at 3.43.

The opinion says that states cannot change the membership of the militia so as to let blacks serve in the militia. It also provides an excellent legal history of the militia from colonial times to the eve of the Civil War, as seen by non-historians in 1859.

Many of the issues raised about the historical and modern day status of the militia are discussed. For example, this Court clearly viewed that there was only one institution of the militia, that the militia had always acted under government control, and it discusses (yet again) the meaning of the 'provide for the organizing, arming and disciplining' clause of the Constitution and how that clause allows the federal government to say that members of the militia are between 18 and 45 years of age and not 20 and 50 years of age.

"Interrogatories [Questions] Propounded by order of the Governor and Council to the Supreme Judicial Court:

"Whether the Legislature of this Commonwealth can constitutionally provide for the enrollment in the militia of any persons other than those enumerated in the Act of Congress, approved May 8, 1792, entitled, 'An Act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States'?

"Whether the aforesaid Act of Congress, as to all matters therein provided for, and except as amended by subsequent Acts, has such force in this Commonwealth, independently of or notwithstanding any State legislation, that all officers under the State government, civil and military, are bound by its provisions? ...

"We are first, as preliminary to any direct answer to the inquisitions, to consider what the militia was, as understood in the Constitution and laws, both of this commonwealth [Massachusetts] and of the United States. It was an institution, not only theoretically known, but practically adopted and carried into effect, in all the colonies and provinces before the Revolution, and even before the formation of a congress for any purpose. The utility and capabilities of this institution for military purposes had been put to a severe test by the events of the Revolution, and were well understood before either of these constitutions was adopted.

"Prior to the Revolution, the establishment and control of this institution was within the jurisdiction of the respective colonial and provincial governments, because these were the only local governments, acting directly upon the rights and interests of the inhabitants, within their respective territorial limits. It was constituted by designating, setting apart, and putting in military array, under suitable military officers, all the able-bodied male inhabitants of the province, with certain specified exceptions, and was held in readiness upon certain exigencies, and in the manner provided by law, to act under military orders as a military armed force. It was the constitution of a citizen soldiery, in contradistinction to a regular or standing army. Such having been the jurisdiction of the several provincial governments, it naturally devolved upon the respective state governments after the Declaration of Independence, and during the early years of the revolutionary war. During that period, all were acting under the articles of confederation, which was rather a league between the states for mutual defence, than a government acting directly upon the people of these states.

[The Court discusses the adoption of the U.S. Constitution and its creation of two level of governments and then turns to discuss the power over the militia under the Constitution.]

"...The establishment of a militia was manifestly intended to be effected by arranging the ablebodied men in each and all the states in military array, arming and placing then under suitable officers, but without forming them into a regular standing army, to be ready as exigency should require, to defend and protect the rights of all, whether placed under the administration of the local [state] or general [federal] government, to be called out by either in the manner and for the purposes determined by the Constitution and laws of either. It was one and the same militia, for both purposes, under one uniform organization and discipline, and to be commanded by the same officers. Were it otherwise, were the general and the state governments to have their own militia, the results would have been that there would be, within the bosom of each state, a large embodied military force, not by its organization amenable to the laws or subject to the orders of the state government; and also a similar force, one which the general government would have no right to call for aid, to repel invasion, suppress insurrection, or execute the laws; a state of things, not only rendering each to a great extent inefficient and powerless, but also entirely destructive of that harmony and union which were intended to characterize the combined actions of both governments. We find therefore that the functions of both are called into activity, in constituting this military force and carrying it into practical operation.

"The Constitution of the United States having charged the general government with the administration of the foreign relations of the whole Union, and the military defence of the whole, provides, [article 1, section 8) 'That Congress shall have the power to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, 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.'

"Organizing' obviously includes the power of determining who shall compose the body known as the militia. The general principle is, that a militia shall consist of the able-bodied male citizens. But this description is too vague and indefinite to be laid down as a practical rule; it requires a provision of positive law to ascertain the exact age, which shall be deemed neither too young nor too old to come within the description. One body of legislators might think the suitable ages to be from 18 to 19, others from 16 to 30 or 40, others from 20 to 50. Here the power is given to the general government to fix the age precisely, and thereby to put an end to doubt and uncertainty; and the power to determine who shall compose the militia, when executed, equally determines who shall not be embraced in it, because all not selected are necessarily excluded.

"The question upon the construction of this provision of theConstitution is, whether this power to determine who shall compose the militia is exclusive. And we are of opinion that it is. A power when vested in the general government is not only exclusive when it is so declared in terms, or when the State is prohibited from the exercise of the like power, but also when the exercise of the same power by the State is superceded, and necessarily impracticable and impossible after its exercise by the general government. For instance, when the general government have exercised their power to establish a uniform system of bankruptcy, that is, laws for sequestering and administering the estate of a living insolvent debtor; when one set of commissioners and assignees of such estate have taken possession of property, with power to sell and dispose of it, and distribute the proceeds, another set of officers, under another law, cannot take and dispose of the same property. The one power is necessarily repugnant to the other; if one is paramount, the other is void. We think the present case is similar. The general government having authority to determine who all and who may not compose the militia, and having so determined the State government has no legal authority to prescribe a different enrollment.

"This power was carried into execution by the act of Congress of May, 1792, being an 'Act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States'. This act specially directs who shall be, and by necessary implication, who may not be enrolled in the militia. This is strengthened by a provision, that each State may by law exempt persons embraced in the class for enrollment, according as the peculiar form and particular organization of its separate government may require; but there is no such provision for adding to the class to be enrolled.

"We are therefore of opinion that the Legislature of the Commonwealth cannot constitutionally provide for the enrollment in the militia of any persons other than those enumerated in the act of Congress of May, 1792, hereinbefore cited.

"We do not intend, by the foregoing opinion, to exclude the existenceof a power in the State, to provide by law for arming and equipping other bodies of men for special service of keeping guard, and making defence, under special exigencies or otherwise, in any case not coming within the prohibition of that clause in the Constitution, article 1, section 10, which withholds from the State the power 'to keep troops;' but such bodies, however armed or organized could not be deemed any part of 'The Militia,' as contemplated and understood in the Constitution and laws of Massachusetts and of the United States, and, as we understand, in the question propounded for our consideration.

"Nor is this question, in our opinion, affected by the article 2 of the Amendments of the Constitution of the following tenor: 'A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.'

"This, like similar provisions in our own declaration of rights,declares a great general right, leaving it for other more specific constitutional provision or to legislation to provide for the preservation and practical security of such right, and for influencing and governing the judgment and conscience of all legislators and magistrates, who are thus required to recognize and respect such rights.

"In answer to the second question proposed, we are of opinion that the Act of Congress above cited, as to all matters therein provided for, except so far as it may have been changed by independent acts, has such force in this Commonwealth, independently of and notwithstanding any State legislation, that all officers under the State government, civil and military, are bound by its provisions.

"(signed)
Lemuel Shaw
Theron Metcalf
George T. Bigelow
Pliny Merrick
Ebenezer R. Hoar

Boston, December 23, 1859."

3.54 How extensive was the volunteer militia up to the beginning of the Civil War?

A. There were definitely thousands (and thousands) of volunteer companies before the Civil War, if we take a broad view of what before the Civil War means (say 1830-1861). However, the lifespan of a typical volunteer company was about three to four years before it disbanded. As a result, at no particular time was there a huge number of volunteer companies. This includes 1861. A typical volunteer militia company would have between 30 and 60 members. Generally, except for a few really popular ones, the longer companies were around, the smaller they were, due to attrition. Moreover, there were more volunteer companies in 1861 than, say, five years earlier, because a number of states, anticipating a sectional conflict, had begun to beef up their state militias (again, this is state activity, not private activity). [MP]

3.55 What was the role of the militia in the Civil War on the Union side? To what degree were these militia units volunteer units as opposed to the enrolled militia?

A. "Just before the Civil War began, the army of the United States consisted of no more than 1,108 officers and 15,259 enlisted men. Hardly anyone realized that mass war had come for the first time to the United States and that the Union Army alone would expand to 2,500,000 men and the Confederate Army to somewhere around 1,000,000..

"At first of course, the belligerents had to look to the militia... Random sampling of the Union states indicates poor quality. Iowa officials flatly admitted that their militia was in poor condition. Maine, with around 63,000 men enrolled, could field at most 1,200. Michigan, with 109,000 on the muster rolls [these always included the authorized volunteer companies], could assemble in a short time no more than 1,241 men in twenty-eight companies. The total militia force of New Hampshire consisted of the adjutant-general alone...There were 19,000 men in the organized militia of New York, but only 8,000 muskets for them. Similarly, Ohio could only find 1,984 shoulder weapons for an alleged twenty-three regiments...Connecticut, Massachusetts, and Rhode Island were exceptions to this shabby story as they had throughout the years attended to their militias...

"Since Congress was not in session when the Confederates fired on Fort Sumter, the President had no legal way to enlarge the the fighting force except to call the state militias into federal service. Accordingly, on April 15, 1861 he summoned 75,000 militiamen apportioned among the states according to the size of their militias...

"Old volunteer units made up 40 percent of the 93,000 militiamen who answered the president's call. New Jersey was able to send the first fully organized brigade to Washington because the constituent companies of its four regiments were old volunteer units. Soon, four Massachusetts regiments arrived to keep the Confederate forces out of the nation's capital. One of these, the 5th Massachusetts, had one company that had been constituted in 1804, as well as one that was brand-new. The 7th New York was able to mobilize and reach Washington promptly because it had experience stretching back to 1824. The Irish 69th, arriving early, had experience since 1849... The early defenders of the capital remained to take part in the First Battle of Bull Run in July 1861, after which their ninety days were up and they went home...

"Aside from their response to the April call for militia, the old volunteer units contributed only a tiny percent of the total Union force during the war." -Mahon, pp. 97-101.

3.56 What about the Confederate side?

A. In some respects, the state of the Southern militia at the start of the war was even worse than the Union side, particularly as regards arms, but the conditions were generally comparable. The Confederate Government specifically created a Confederate Army that was distinct from all the state militias. Most Confederate soldiers did not provide their own weapons (they were mostly imported from overseas, manufactured in the Confederacy, or captured from the North). [MP]

3.56A How do you explain all the units named for those who raised them? Weren't these independent military companies?

A. "Leading citizens" in the South and North raised companies and regiments. However, that activity, except in the very first couple of weeks, basically went on under the authority of the Union and Confederate governments, who used such citizens to buttress their own weak organizational capacities. [MP]

3.57 What happened to the militia during Reconstruction?

A. "Following the Civil War, the militia was dead in spite of statutes to the contrary. Indeed, during most of the Reconstruction years the volunteer militia was dormant, except in ex-Confederate states. There the provisional governors had permission to constitute militia ... [These militia were] virtually the old Confederate Army down to the worn gray uniforms left over from the Civil War. A Confederate militia was intolerable to the Radical Republicans; so when they regained control of Congress they attached a rider to the Army Appropriations Act of March 2, 1867, that finally prohibited the formation of military units in the once Confederate states. President Johnson, rather than see soldiers go without pay, signed the bill but attached to it a sharp dissent that it was unconstitutional to deny a state the right to have militia.

"It soon became obvious that the state governments, forming under the radical regime, had to have more support than the scattered units of the regular army could provide. Accordingly, two years and one day after prohibiting militia in the rebel states, Congress on March 2, 1869, reallowed it. As far back as March 1862, Congress had stricken "white" from the basic militia statute, so the Radical Republicans intended to make the southern militia predominantly black..."

"The southern militia units, usually referred to as Negro militia, were not all black. There were some white units, but the two colors did not mingle...

"To the white people of the South and the Dunning school of historians of Reconstruction, the Negro militia was only made up of swaggering bullies. The whites opted, therefore, to use unbridled violence if necessary to eliminate it. Two hundred and ninety white rifle companies sprang up at one time in South Carolina alone. From one place or another, they found weapons. Although they lacked official sanction, these companies had behind them the determination of the society to establish white supremacy at all cost. Actual clashes between black and white units were rare, but bloodshot was not. White riflemen ambushed and killed black officers and white supporters of the Negro militia. These assassinations often took place in broad daylight with witnesses, but prosecutions were non-existent. This way, in the end, the leadership that supported the black militia was either killed or intimidated. When the Democrats returned to power in state after state of the ex-Confederacy, they terminated the black militia, disarmed the blacks, and excluded them from any role in the militia." - Mahon pp. 108-109.

3.58 Why did support for the state militia increase in 1877?

A. "As of the late 1870's all men in the United States between the ages of 18 and 45 were obliged to serve in the militia and to arm and equip themselves for that purpose...Only a few took that seriously...Within a dozen years after the Civil War, however, increasing numbers of men began to take an interest in the militia. They formed units, drilled, and bought uniforms and arms. They were the nucleus of the National Guard. Very early they turned to political activity.

"The National Guard Association was formed to seek a new militia law from Congress...The object was to have the Guard recognized in federal law as the "organized militia." This would distinguish Guard members from the vast majority of men between 18 and 45 years who were legally classified as militia but who did not actually serve -- that is, were "unorganized". The Guard, which was the militia in fact, would be acknowledged as such in law. Not until 1903 was the Guard able to achieve this its major political goal. ln the meantime, it thrived with the help from the states.

"...Both observers in the 1880's and subsequent students have identified the labor riots of 1877 as the cause of the Guard's sudden growth. Unquestionably, industrial violence provided much of the impetus. Fear of violence by "anarchists, internationalist, and nihilists" led state and local governments to strengthen the militia forces. Development of the Guard began and proceeded fastest in the populous, industrial states of the North- Massachusetts, Connecticut, New York, Pennsylvania, Ohio and Illinois. In addition to the appropriations from state and local governments, the Guard received substantial private funds from wealthy businessmen..."

"It would be a mistake to attribute growth entirely to the interests of business groups and state governments in preservation of domestic order... A good deal of spontaneous martial enthusiasm help to swell Guard units in the post-Civil War era. " - Martha Derthick, The National Guard in Politics, pp. 15-17.

3.59 How did Peter J. Dunne get out of jury duty in 1879?

A. He joined the Illinois National Guard under a statute that exempted Guardsmen from serving. But he was convicted and fined by a lower court of illegally avoiding jury duty. The case was then taken directly to the Illinois Supreme Court, and became the case of Dunne v. Illinois, 94 Illinois 120 (1879) a case often cited, always favorably, in later militia cases.

The issue was the overall validity of the Illinois Militia law. The Court dealt with many objections, but found the law valid and in doing so discussed the argument that the law was invalid because essentially it only dealt with the "organized militia". At 136:

"It is no valid objection to this act of the legislature that it does not require the entire militia of the state [males 18-45] to be enrolled as "active militia." Counsel do not wish to be understood as claiming that no militia law is valid unless it provides that each and every male inhabitant of the specified age should at all times be armed and engaged in drilling and maneuvering. But the argument made is, that the performance of military service in times of peace can not be legally confirmed to a select corps consisting of a limited number of volunteers to the exclusion of all other able-bodied male residents of the state. The argument admits of several conclusive answers that may be shortly stated: 1. It is a matter dependent on the wisdom of Congress whether it will provide for arming and disciplining the entire body of the militia of the United States. 2. The citizen is not entitled under any law, State or Federal, to demand as a matter of right that arms shall be placed in his hands; and, 3. It is with the legislative judgment of what number the active militia of the State shall consist, depending on the exigency that makes such organization necessary."

And then the Court discussed whether or not the "organized militia" were militia, or whether they were "troops" which were prohibited the states in time of peace. At p. 138:

"An objection of broader scope ...is that, the active militia organized under the statute comes within the prohibition of the second clause, section 10, article 1 of the Constitution of the United States, which withholds from the States the power to keep "troops" in times of peace. Our understanding is, the organization of the active militia of the State conforms exactly to the definitions usually given of militia. 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. Such an organization, no matter by what name it may be designated, comes within no definition of "troops," as the word is used in the Constitution. The word "troops" conveys to the mind the idea of an armed body of soldiers, whose sole occupation is war or service, answering to the regular army. The organization of the active militia of the State bears no likeness to such a body of men. It is simply a domestic force as distinguished from regular "troops" and is only liable to be called into service when the exigencies of the State make it necessary."

So Peter J. Dunne, didn't have to pay the fine. This was important to the health of the National Guard for "avoidance of jury duty was a major incentive for many Guard recruits." [Derthick, p.19]

3.60 How did the 1903 Dick Act come about?

A. There was a wave of army reform and the National Guard Association ensured that the National Guard would survive.

During the Spanish-American War the Army bypassed the state militias by not allowing militia units to participate; only volunteer regiments. Although individual militiamen could join a volunteer unit (and some larger militia units joined en masse), militia units themselves did not participate. Angry National Guard lobbyists didn't want that ever to happen again and lobbied for what became the Dick Act in 1903, and later lobbied for the National Defense Act of 1916.[MP]

"In sum, the provisions of the bill [Dick bill, 1903] - essentially a compromise --eliminated once and for all the archaic Militia law of 1792. It divided American male citizenry into two classes: the National Guard (organized militia) and the Reserve Militia [this is the 1903 term for unorganized militia] in which were lumped all other male citizens between the ages of 18 and 45. National Guard organization, armament, and discipline were to be identical with those of the Federal Army... as to the Reserve Militia, this legal fiction at least perpetuated the original colonial concept of universal military obligations." - R. Ernest Dupuy, The National Guard: A Compact History p. 92

3.61 Sections of the 1903 Dick Act

The 1903 Militia Act, known as the "Dick Act," was named after Charles Dick, Congressman from Ohio, president of the National Guard Association and Chairman of the House Committee on the Militia.

Section 1. "MILITIA - COMPOSITION OF"

"That the militia shall consist of every able-bodied male citizen of the respective states...who is more than 18 and less than 45 years of age and shall be divided into two classes, the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective states or territories, and the remainder to be known as the Reserve militia."

Section 2. "PERSONS EXEMPT"

"That the vice-president of the United States..pilots... and all persons who are exempted by the laws of the respective States or territories shall be exempted from militia duty, without regard to age..."

3.62 Sections of the 1916 National Defense Act

"Section 57. COMPOSITION OF THE MILITIA: The militia of the United States shall consist of all able-bodied male citizens of the United States.. who shall be more than 18 years of age and...not more than 45 years of age, and said militia shall be divided into 3 classes, the National Guard, the Naval Militia, and the Unorganized militia.

"Section 59. EXEMPTIONS FROM DUTY: The Vice-president of the United States ...pilots.. shall be exempt from militia duty without regard to age..." [note that the states can no longer specify exemptions]

"Section 60. ORGANIZATION OF NATIONAL GUARD UNITS"...The President may prescribe the particular unit or units as to branch of service or arm of service, to be maintained n in each state, territory, or the District of Columbia, in order to secure a force, which, when combined, shall form complete higher tactical units."

3.63 How was the militia reorganized in 1933?

A. The "unorganized militia" can exist because the 1933 amendment to the National Defense Act of 1916 divided the "militia" into several different groups, one of which was the National Guard of the United States, which consisted of specially designated National Guard units that received special attention by the federal government and could be mobilized as part of the Army (this force resting on both the Army and militia clauses of the Constitution), another of which was the National Guard of the "several States," which consisted of all other National Guard units that received any federal funding, which rested solely on the militia clause of the Constitution, and a third category, which consists of all other state units that the states might wish to raise on their own, without any federal aid whatsoever. Needless to say, the states didn't want to pay for such forces all by themselves, and so the "unorganized militia" remains unorganized. [MP]

3.64 How does one become a member of the National Guard today?

A. Federal statutes have created a dual enlistment program, under which state National Guard enlistees are, at thetime of their enlistment, simultaneously enlisted in the National Guard of the United States, a reserve component of the national armed services.

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. Thestatute 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 the1916 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 serviceof 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 theincreasing 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 judgment 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.


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