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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 4. - The Militia Today


4.1 This section examines the militia and the new militia today. In many cases, the reasons for the answers given are those spelled out in Part 3 - History of the Militia in America. This FAQ uses the term 'new militias' to describe the armed paramilitary groups that have been forming in the United Statesin recent years. The term excludes both the National Guard and state defense forces defined in 32 USC s.109(c).

4.2 What is the tradition or history that the new militias are following in embracing the term 'unorganized militia'?

A. No tradition. Little history. The unorganized militia never ever had any kind of meaningful existence. It is simply a convenient statutory construct. See the history of the term in section 3 of this FAQ.

The Anti-Federalists of the 1780's who opposed a strong Federal government spoke of an armed militia indistinguishable from all the able bodied male citizenry. This militia was to be a great source of and training ground for republican virtue. They drew upon the writings of American and British republican theorists for this view. This universal militia was to be drawn from the local community, under the leadership of men of rank and substance, and subordinate to local elected authority.

The Constitution watered down this concept when it gave the federal government power over organizing, arming and disciplining the militia and even more so, when it gave the federal government rather than the local (state) authority control over the militia when federalized. However, the 1792 Act, as much as allowed for by the Constitution, called for this universal militia. But the states granted widespread exemptions and eventually ended compulsory militia duty. Service in the militia became voluntary and few served. In large part because of the labor strikes of the late 1870's, the militia was revived once again as the National Guard. In the twentieth century, the National Guard has increasingly become part of the armed forces of the United States.

Whatever virtues the National Guard has, it cannot claim the republican virtue of an armed citizenry, because it is a small self-selected group. However, at least the National Guardsman is the citizen-soldier acting in defense of the republic and under elected civilian leadership both state and federal.

As for the new militia, they have even less claim to be acting out of some notion that they are serving republican virtue or that they somehow represent the militia ideal of the Anti-Federalists or the earlier republican theorists. They are, after all, small self-selected groups, responsible to no one, following an agenda of their own choosing.

[David C. Williams' article "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment", 101 Yale Law Journal 551 (1991) has an excellent discussion of the universal militia and republican virtue]

4.3 What's the current federal law?

A. There is very little Federal law regarding the militia as the militia. Almost all the law about the militia is in fact law about the organized militia which is the National Guard. The following sections from the United States Consolidated Statutes (USCS) contain most of the federal statute law on the militia as a whole.

10 USCS [Armed Forces]

"311. MILITIA: COMPOSITION AND CLASSES
  
   (a) The militia of the United States consists of all able-bodied
       males at least 17 years of age and, except as provided in section
       313 of title 32, under 45 years of age [which deals with
       membership in theNational Guard]  who are, or who have made a
       declaration of intention to become, citizens of the United States
       and of female citizens of the United States who are members of 
       the National Guard.
   (b) The classes of the militia are--
       (1) the organized militia, which consists of the National
           Guard and the Naval Militia; and
       (2) the unorganized militia, which consists of the members
            of the militia who are not members of the National Guard 
            or the Naval Militia."
 
312. MILITIA DUTY: EXEMPTIONS
   The following persons are exempt from militia duy:
 (a) (1) The Vice President.
     (2) The judicial and executive officers of the United States, the
       several States and Territories, Puerto Rico, and the Canal Zone.
     (3) Members of the armed forces, except members who are not on 
       active duty.
     (4) Customhouse clerks.
     (5) Persons employed by the United States in the transmission of
       mail.
     (6) Workmen employed in armories, arsenals,and naval shipyards of
       the United States.
     (7) Pilots on navigable waters
     (8) Mariners in the sea service of a citizen of, or a merchant in,
         the United States.
 (b) A person who claims exemption because of religious belief is
    exempt from militia duty in a combatant capacity, if the 
    conscientious holding of that belief is established under 
    such regulations as the President may prescribe.  However, 
    such a person is not exempt from militia duty that the President
    determines to be noncombatant. 
   
[there are no sections 313-330]
331.FEDERAL AID FOR STATE GOVERNMENTS
     Whenever there is an insurrection in any State against its 
     government, the President may, upon the request of its legislature
     or of its governor if the legislature cannot be convened, call 
     into Federal service such of the militia  of the other States, 
     in the number requested by that State, and use such of
     the armed forces, as he considers necessary to suppress the 
     insurrection.
332.USE OF MILITIA AND ARMED FORCES TO ENFORCE FEDERAL AUTHORITY
     Whenever the President considers that unlawful obstructions,
     combinations, or assemblages, or rebellion against the authority
     of the United States make it impracticable to enforce the laws 
     of the United States in any State or Territory by the ordinary 
     course of judicial proceedings, he may call into Federal
     service such of the militia of any State, and use such of the
     armed forces, as he considers necessary to enforce those laws
     or to suppress the insurrection.
333.INTERFERENCE WITH STATE AND FEDERAL LAW
     The President, by using the militia or the armed forces, or
     both, or by any other means, shall take such measures as he
     considers necessary to suppress, in a State, any insurrection,
     domestic violence, unlawful combination, or conspiracy, if it--

      a) so hinders the execution of the laws of that State, and 
         of the United States within the State, that any part or
         class of its people is deprived of a right, privilege,
         immunity, or protection named in the Constitution and
         secured by law, and the constituted authorities of the
         State are unable, fail, or refuse to protect that right,
         privilege, immunity, or to give that protection; or 
      
      b) opposed or obstructs the execution of the laws of the
         United States or impedes the course of justice under
         these laws
     
     In any situation covered by clause (1), the State shall be
     considered to have denied the equal protection of the laws
     secured by the Constitution.
334.PROCLAMATION TO DISPERSE
    Whenever the President considers it necessary to use the
    militia or the armed forces under this chapter, he shall,
    by proclamation, immediately order the insurgents to 
    disperse and retire peaceably to their abodes within a 
    limited time.

President Eisenhower made proclamations under s.333 and s.334 and issued Executive Order 10730 to order into federal service units of the National Guard of the United States and of the Air National Guard of the United States within the state of Arkansas and authorized use of the armed force of the United States to enforce the court orders desegragating Central High School in Little Rock, Arkansas. See 1.13 of this FAQ.

In 1962-1963, President Kennedy made similar proclamations and issued executive orders to federalize units of the National Guard and of the Air National Guard of the States of Mississippi and Alabama and authorized use of the use of the armed forces to enforce court desegregation orders.

Note that in the first case, it was the National Guard of the United States within Arkansas and in the second it was the National Guard of the State of Alabama or Mississippi. See the National Guard Act, s. 101, below.

The other 'militia' law concerns the National Guard and is in the National Guard Act. Section 106 of the National Guard Act authorizes the federal govenment to pay for the support of the Guard. As discussed in the history section of this FAQ, the federal government does not have to support financially or physically provide weapons to the militia.

The federal government, in s. 108, makes the financial support of the National Guard dependent on the state following the federal rules and regulations under the National Guard Act.

Section 109 allows states to have a 'state defense force' in addition to a National Guard. Whether state defense forces are 'militia' or 'troops' is discussed later in this FAQ.

32 USCS [National Guard]

"101. DEFINITIONS
 [...]
   (3) "National Guard" means the Army National Guard and the
        Air National Guard.
   (4) "Army National Guard" means that part of the organized
       militia of the several States and Territories, Puerto Rico,
       and the District of Columbia, active and inactive, that--
      (a) is a land force;
      (b) is trained, and has its officers appointed, under the
          sixteenth clause of section 8, article I, of the Constitution;
      (c) is organized, armed, and equipped wholly or partly at
           Federal expense; and
      (d) is federally recognized.
   (5)"Army National Guard of the United States" means the
       reserve component of the Army all of whose members are members
       of the Army National Guard.
   (6)"Air National Guard" means that part of the organized
       militia of the several States and Territories, Puerto Rico,
      and the District of Columbia, active and inactive, that--
      (a) is an air force;
      (b) is trained, and has its officers appointed, under the
          sixteenth clause of section 8, article I, of the Constitution;
      (c) is organized, armed, and equipped wholly or partly at
          Federal expense; and
      (d) is federally recognized.
   (7) "Air National Guard of the United States" means the reserve
       component of the Air Force all of whose members are members
       of the Air National Guard."
"106.ANNUAL APPROPRIATIONS
      Sums will be appropriated annually, out of any money in the
      Treasury not otherwise appropriated, for the support of
      the Army National Guard and the Air National Guard, including
      the issue of arms, ordnance stores, quartermaster stores,
      camp equipage, and other military supplies, and for the payment
      of other expenses authorized by law.
"108.FOREFEITURE OF FEDERAL BENEFITS
      If, within a time to be fixed by the President, a State does
      not comply with or enforce a requirement of, or regulation 
      prescribed uner this title [32 USCS s. 101 et seq.] its 
      National Guard is barred, wholly or partly as the President
      may prescribe, from receiving money or any other aid, benefit,
      or privilege authorized by law.
"109.MAINTENANCE OF OTHER TROOPS
    (a) In time of peace, a State or Territory, Puerto Rico,
     The Virgin Islands, the Canal Zone, or the district of Columbia
     may maintain no troops other than those of the National
     Guard and defense forces authorized  by subsection (c).

     (b) nothing in this title [32 USCS] limits the right of a State
     or Territory, Puerto Rico, The Virgin Islands, the Canal Zone, or
     the district of Columbia to use its National Guard or its 
     defense  force authorized by subsection (c) within its borders
     in time of peace, or prevents it from organizing and 
     maintaining police or  constabulary.

    (c) In addition to its National Guard, if any, a State or
     Territory, Puerto Rico, The Virgin Islands,the Canal Zone, or the 
     district of Columbia may, as provided by its laws, organize
     and maintain defence forces.  A defence force established 
     under this section may be used within the jurisdiction concerned,
     as its chief executive (or commanding  general in the case of the
     District of Columbia) considers necessary, but it may not be
     called, ordered, or drafted into the armed forces.

    (d) A member of a defense force established under subsection (c)
     is not, because of that membership, exempt from service in the
     armed forces, nor is he entitled to pay, allowances, subsistence,
     or medical care or treatment, from funds of the United States
     
     (e) A person may not become a member of a defense force
     established under subsection (c) if he is a member of a reserve
     component of the armed forces.

4.4 Article 1, Section 10 of the Constitution states: "No state, shall without the consent of Congress.. keep Troops..in time of Peace." Are the militia "troops"? Are state defense forces part of the militia or are they state "troops" to which Congress has by s.109(c) consented? How can state definitions of those eligible/subject to militia duty be sometimes wider than the federal definition?

A. There has been common agreement for more than 200 years that militia are not 'troops.' The quoting of the Dunne v. Illinois definition of militia by the U.S. Supreme Court in the 1990 Perpich case (see 3.65) settles the issue: the militia not 'troops.'

State defense forces were originally created by federal statute during WWI and WWII to intervene in case of civil disturbance during a time when the National Guard was called away to active duty. A number of states currently have active state defense forces; all these groups are authorized and regulated by state law and are under the political and military control of the state.

Texas has a Texas State Guard which is forbidden to practice with arms, but they do wear uniforms and are state chartered, coming under the same department as the state's National Guard. Oregon has the Oregon State Defense Force, an all-volunteer group under the same organizational structure as the National Guard. The OSDF has close relations with the Oregon National Guard. Illinois, like a number of states, has a dormant state defense force that must be called into existence by the Governor.

Some of the state militia or state defense force laws include men and women equally or have an upper age range goes beyond 45 to 50 or 60 in the pool of people subject (or eligible) to do militia service. In light of the opinion of the Supreme Court in cases such as Houston v. Moore (see 3.34) or the directly on-point Opinion of the [Massachusetts] Justices (see 3.53) this expanded manpower pool is invalid. However, there is no reason why these definitions should be invalid to allow or require service in the 'troops' of a state defense force.

Considering the history of these forces, states may have rightly considered them to be 'troops' allowed by the express consent of congress. This is Mahon at p.186 discussing WWII:

"The absence of Guardsmen in federal service increased the danger of sabotage at home. Congress, therefore, as in WWI, authorized the states to constitute new organizations known as State Guards. By June 30, 1941, nearly 6 months before war came to the nation, 37 states had done so."

Then along comes the 1990 Perpich case, in which the state argues that the federal government through its actions is taking away the right of a state to its own militia. The Supreme Court says:

"...Moreover, Congress has provided by statute that in addition to the National Guard, a state may provide and maintain at its own expense a defense force that is exempt from being Drafted into the Armed Forces of the United States. See 32 U.S.C s.109(c). As long as that provision remains in effect, there is no basis for an argument that the federal statutory scheme deprives Minnesota of any constitutonal entitlement to a separate militia of its own."

In the quote above and its footnote, the Supreme Court argues that state defense forces are state 'militia' formed from the unorganized portion of the militia rather than 'troops.' However, these views by the Court, as they were not necessary for the decision are just obiter dicta and therefore do not set a binding precedent.

Since the 1990 Perpich decision there do not seem to have been any cases on this issue. A review of the West's National Reporter system over a number of decades did not find any cases on state defense forces. Based on the history of these organizations, the 'troops' analysis may succeed, if the issue ever goes to court. If the obiter dicta of the Supreme Court prevailed, states could make their definition match the federal definition or the federal definition of militia membership could be modified to support the state definitions as required for state defense forces.

For the purposes of this FAQ this is largely an interesting academic exercise. Everyone involved in Perpich would agree that state defense forces and the militia both organized and unorganized are governed completely by written law.

4.5 Could new militia groups join the state defense forces as units?

A. It is unlikely, but it may happen if there are no laws explicitly prohibiting such action. Some states explicitly prohibit it. New Hampshire's State Guard Act states:

111:14 ENLISTMENT OF CIVIL GROUPS.

"No civil organization, society,club, post, order, fraternity,assocation, brotherhood, body, union,league or other combination of persons or civil group shall be enlisted in the state guard as an organization or unit."

4.6 I suggest you read the United States Code, that provides for the "unorganized" militia, which includes "every able-bodied person between 17 and 45 years of age." We are unorganized by the government, but it does not say we can't organize ourselves. It's still on the books, so it's still legal for us to organize.

A. If there are no laws forbidding such an organization, then you can organize. Remembering that if you want your "unorganized militia"to be true to the definition of those subject/eligible for the militia in 32 USCS 311, you must exclude women from your organized "unorganized militia."

But the result of your organization will not be a militia unit. The result will be a unauthorized voluntary paramilitary organization.

Most states have laws prohibiting or regulating these groups. These laws have been found constitutionally valid whenever tested. The passage of these laws by most states shows some common agreement that these groups are not good.

4.7 Do all states currently have militia laws?

A. Every state has laws regarding the militia. A number of states have a higher upper age limit for the militia. Most states include women in the definition of the militia. These different age and sex definitions are probably not valid as concerns the militia, because of the federal government under its power to organize the militia has its own definition. However, these definitions are legal to support membership in a state defense force under s.109 of the National Guard Act, assuming that they are "troops" (see 4.2 and 4.3).

4.8 Excerpts from a typical state militia law - New Hampshire

Statute Law of New Hampshire

110-A:1 COMPOSITION OF THE MILITIA

I. The militia shall consist of all able-bodied residents of the state who shall be more than 17 years of age and not more than 45 years of age, ...

II. The militia shall be divided into 2 classes, namely, the organized militia , which shall be the national guard, and the unorganized militia.

III. The national guard shall be consist of an army national guard, an air national guard, and an inactive national guard...

IV. The unorganized militia shall be composed of those classes of persons described in paragraph I of this section who are not members of the organized militia, provided, however that those persons who are lawfully carried upon the state reserve list or the state retired list shall not be deemed to be a part of the unorganized militia.

110-A:3 REGISTRATION AND DRAFT OF UNORGANIZED MILITIA

I. When the governor shall deem it necessary, he may direct the members of the unorganized militia to present themselves for and submit to registration at such time and place and in such manner as he may prescribe in regulations issued persuant to this chapter.

None of these state laws says anything about authorizing new militia groups. They simply designate those individuals who belong to the unorganized militia. This membership confers no rights, responsibilities obligations, or authority until you are called upon. It is merely the statement of nominal authority by the government for purposes of military manpower. Nowhere are there laws stating that the unorganized militia will have any units, any officers, any training, any equipment, nor that the governor or anybody else is authorized to accept "volunteer" militias. The law provide no statutory protection to these groups. [MP/SS]

4.9 Under what circumstances can the state militia be called out?

A. The federal government can only use the militia for the purposes stated in the federal Constitution.

The state does not have these limitations:

"Generally, the governor of a state has the power to call the National Guard [militia] to active duty in times of public disorder or danger, or where there is imminent danger of public disorder or danger, or to aid the civil authorities in the enforcement of law." (6 Corpus Juris Secundum s.295).

4.10 Who at the state level can call out the state militia?

A. This may vary from state to state. The governor of a state is the commander-in-chief of the militia and generally responsible for its actions. Other elected or non-elected officials can only call out the militia through specific state legislation. Some states, such as Massachusetts, give specific local officials, under special circumstances, power to call out part of the state militia.

There are no laws anywhere that allows members of the "unorganized militia" to call out themselves or others because they are members of the "unorganized militia."

4.11 In what way are new militias responsible to elected civilian authority?

A. They are not. New militias say they are subordinate to civilian authority, but that is not true. Not a single new militia group has its senior officers militarily subordinate to militia officers appointed by the state. None can show that there is a chain of command that starts with the governor or the legislature and can be followed down to one of these groups. This statement, of course, excludes state defense forces organized under s.109 of the National Guard Act.

One of the major complaints of the American colonies leadings to the American Revolution was that the colonies could not exercise political control over the British military stationed in the colonies. The new militia, operating outside of political control, seem to want to turn the clock back to those colonial days.

4.12 Is a valid test of whether an organization is a true militia and not just a "bunch of guys and gals with guns" the fact that they recognize the authority of their governor to call them up for training or in case of an emergency? And if they recognize the authority of the governor to call them up, do they also recognizethe authority of the President to call them up in case of "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States..."?

A. No. It is not a question of groups looking up to government, but rather the state operating under its laws and the federal laws creating militia units and giving officers and enlisted men the status of being a member of a militia unit.

4.13 The new militia groups have sworn allegiance to the federal and state constitutions, and some, like the Texas Militia and the San Diego Militia, were established working closely with civilian and law enforcement authorities. This must mean something.

A. It means that the new militia movement has friends and supporters in and out of government. However, unless the group meets the requirements of the U.S. Constitution, federal and state law, they cannot be a militia unit.

4.14 New militias often say that the sheriff of a county has some special rights or privileges regarding the militia. For example:

"I am pretty sure that a [new] militia must inform the country sheriff of their existence and that they serve the sheriff when asked. So a [new] militia is a militia if it forms with the knowledge of the county sheriff (highest ranking *elected* law officer in the county). And has as a mission preserving the rights of *all* as stated in the Constitution of the US."

A. In Northern states, the historical militias were rarely organized county by county. In Southern states, the county was a very important level of militia organization. However, in neither the North nor the South was the historical militia subordinate to the sheriff of the county, except as explicitly provided by colonial or state law.

In Chapin v. Ferry, 28 Pacific Rptr. 754 (1891), the Supreme Court of Washington noted how careful states were in delegating any power over the militia. At p. 756:

"It is pointed out to us that by the statutes of certain states--as Massachusetts, Iowa, and California [there is power for magistrates and peace officers] ... to summon the officers of military organizations composing portions of the state militia within their jurisdiction to assist them in keeping the peace and executing the law; but full examination discloses that in each instance the authority thus conferred is expressed in precise and unequivocal language, and is hedged about with such formal safeguards, as, under the perilous circumstances justifying such a use of the military, must to every one seem absolutely necessary... [I]n several others, sheriffs and other peace officers are expressly authorized to call out the military within their jurisdictions, without previously communicating with the governor, who is invariably the commander in chief. The military, under our government system, in all ordinary cases is kept in strict subordination to the civil power... Hence the highest executive of the civil power [the governor] is invested with supreme command of the army of the state [the militia], to be held by him as a reserve for use only when the civil power shall be about to fall without its assistance...It would seem to be an awkward state of affairs that a justice of the peace or the mayor of a city should suddenly assume control of a company or regiment of troops, without previous notice to or order from their superior officer; and we observe that wherever such is the law it is provided that immediate notice of the calling out of troops shall be sent to the governor."

Some states, by statute, still give local officials such as sheriffs the ability to call out the militia in very limited circumstances. However, this power has nothing to do with the sheriff's status as the "highest ranking *elected* law officer in the county." The state could just as well have delegated the power by statute to state judges (as was done in New York). Accordingly, this delegration of power to the county sheriff provides no support for the "county sovereignty" movement which is the source of the views expressed in this question.

4.15 How do you explain the New Hampshire law that protects their citizen militia?

A. There are no laws that protect the new militia. The laws always relate to the National Guard or to the state defense force. New Hampshire is one of many states that has laws against unauthorized paramilitary organizations.

4.16 What is the militia's status when not summoned by a governor or the President? Does it somehow evaporateconveniently?

A. If you're referring to the "unorganized militia," it always continues, doing the duties required of it by statute--none. If you're referring to the organized militia (the National Guard) or state defense forces they also do whatever is required of them by law.

4.17 Militia members are expected to train on their own, with their own weapons, so they would be ready to defend against all enemies, foreign or domestic.

A. No. Militias are organized, disciplined armed forces. They were expected to form part of the nation's armed forces when needed in time of emergency. That means that each militia's training and discipline had to be compatible with other militia units and the other armed forces. In 1792 and today that means following a specified training procedure.

Nor was it ever good enough for the militia to train with just any weapons. Even in 1792, federal law set some standards for weapons. Section 1 of the Uniform Militia Act stated "all muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound." Similarly, the organized militia of today do not train with whatever weapons its members happen to own. And the unorganized militia are not required or supposed to train at all.

4.18 The federal government does have rights to organize and equip the militia. Because the federal government has neglected its rights in this area regarding the "unorganized militia" does not mean the unorganized militia all of a sudden don't exist. I challenge the federal government to start regulating and equipping the [new] militia.

A. The federal government has organized and passed laws on the militia. These laws represent political decisions. Political decisions have been made about the "unorganized militia" which have taken the form of law in the National Guard Act and the Armed Forces Act. Without a change in these laws, the federal government cannot organize the the "unorganized militia."

Today's laws can be changed through the processes allowed for under the Constitution. Congress can repeal the existing legislation and enact new legislation. The 1792 Uniform Militia Act (with some minor modifications to allow all males and not just whites to serve) could again be the law of the land.

4.19 Doesn't the state have an obligation to train the "unorganized militia"?

A. No. The state makes its own judgments as to what training is required. The case of Hamilton v. Regents 293 U.S. 245 (1934) involved university students who wanted exemptions from mandatory courses in military science. The U.S. Supreme Court noted that other states had made the same courses optional. The Court upheld the requirement and in doing so stated at p. 260:

"Undoubtedly every state has authority to train its able-bodied male citizens of suitable age appropriately to develop fitness, should any duty be laid upon them, to serve in the United States Army or in state militia (always liable to be called forth by federal authority to execute the laws of the Union, suppress insurrection or repel invasion],...or as members of local constabulary forces, or as officers needed effectively to police the state...So long as its action is within retained powers and not inconsistent with any exertion of the authority of the national government, and transgresses no right safeguarded to the citizen by the federal Constitution, the state is the sole judge of the means to be employed and the amount of training to be exacted for the effective accomplishment of these ends. Second Amendment. Houston v. Moore, 5 Wheaton 1, 16-17. Dunne v. People (1879) 94 Ill. 120, 129 . 1 Kent's Commentaries 265,389. Presser v. Illinois 116 U.S. 252."

In the case of the unorganized militia, states have generally determined that no training shall be done.

4.20 It has been argued that the Ninth Amendment supports the right of individuals to create "unorganized militia" units.

A. The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"

There have been very few times when the Ninth Amendment has been held to support some additional rights. The most well known and controversial are its use to support a right of privacy in cases such as Griswold and Roe v. Wade. When the Ninth Amendment is used in thestrongest statements by its supporters on the U.S. Supreme Court, such as JusticeGoldberg in Griswold v. Connecticut, 85 S. Ct. 1678 (1965), 1686, there are standards that must be met. The right complained of must be:

" of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.'"

It is impossible to believe that the right to create "unorganized militia" groups meets this standard.

In any case, the Ninth Amendment was adopted in 1792. The "unorganized militia" is a statutory definition that was adopted by state laws in the 1840s. Federal law did not mention the unorganized militia until the twentieth century. It is a little bizarre to see how somehow there was suddenly a "right" by people to, of their own volition and under no authority, to officer and train this statutory creation of Congress which was totally unknown at the time of the adoption of the Ninth Amendment.[MP/SS]

4.21 Doesn't the Tenth Amendment give individuals rights over the militia?

A. The Tenth Amendment reserves powers to the people that are not already delegated by the Constitution to the United States or the individual states. The Tenth Amendment states:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Powers regarding the militia are delegated explicitly and fully in Article I, Section 8, paragraphs 15 and 16 between the United States and the individual states . In 1820, the U.S. Supreme Court stated in Houston v. Moore, 5 Wheaton 1,20 :

"It may be admitted, at once, that the militia belong to the states, respectively, in which they are enrolled, and that they are subject, both in their civil and military capacities, to the jurisdiction and laws of such state, except so far as those laws are controlled by acts of Congress constitutionally made."

Accordingly, however the militia are not governed by federal law, they are creatures of state law. To the extent that the 'unorganized militia' exists it is part of the militia and is governed by either state or federal law. Period. Communities and individuals have no authority at all over the militia save what the federal and state governments decide to give them.

4.22 The federal and state governments may control the organized militia, but not the "unorganized militia." The unorganized militia can be called up for duty, but until then what they do is their own business.

A. What the unorganized militia do is their own business, unless they do it under the auspices of being in the militia. If I were a federal employee, I could have any opinion I chose or do anything I want in my own time. However, were I to say that my opinions were the opinions of the federal government, or were I to say that the actions I did in my own time were actions of the federal government, I would be wrong.

Similarly, the fact that much of the militia is unorganized does not give anybody the right to say that what they are doing is under the auspices of being in the militia. The mere fact that they are in the unorganized militia means that such actions are NOT supposed to be going on, because the unorganized militia was designed to have no activities or responsibilities.

There is only one set of state militias, and that is the set organized by Congress according to the Constitution. Nobody can get together and call themselves a "militia." If Jefferson federalized the entire New York Militia (!), then it would still be the New York Militia, only temporarily operating under the authority of the federal government. Anybody not in the New York Militia could not with any sort of authority form another militia.[MP]

4.23 What about the Athens, Tennessee, militia of 1946? The people of Athens, McMinn County, Tennessee, in August, 1946 exercising their rights as individuals, formed a militia, and overthrew a vicious and corrupt county government.

A. They aren't a militia. In 1860-something, the people of Virginia City, Montana, organized, and ambushed and hanged a very corrupt sheriff. They didn't call themselves a militia. They were a "vigilance committee." This happened at numerous places in the early days of the gold rush. In none of these cases did the vigilantes call themselves anything but that--they were certainly not "militia." They were more concerned about distinguishing themselves from a lynch mob, and they disbanded as soon as they had dispatched the villain (rather legalistically--they held trials) and legitimate law enforcement--a federal marshal in most cases--was in place.

4.24 What are the powers of the state over the creation and disbanding of their militia units? The constitution of my state doesn't specify any power to disband a mlitia unit.

A. Assuming a purely state militia is created, then it could be disbanded whenever the state chose. There are entire books of records in the Massachusetts Military Records Office (which may have since changed its name) relating to the disbandment of volunteer militia companies. As to the Constitution of a state, creating and disbanding units is a routine part of state authority; otherwise, you could end up with units that through attrition or otherwise, contained only one soldier, yet still constituted a "unit." [MP]

4.25 But surely there is some way, we, the unorganized militia in Michigan, can get authorization by the governor?

A.Being unaware of the current Michigan statutes I cannot post a definitive answer, but I can provide one which is probably accurate. What you propose to do would not establish legitimacy of itself, because the governor is probably not authorized by the state legislature to accept self-organized groups into a state militia structure. If the Michigan statutes are similar to those of other states, and I suspect they are, it is not possible for the unorganized militia to lawfully train, becausethe whole purpose of creating the unorganized militia was so that it wouldn't train. Therefore, the state legislature would have to specify that the unorganized militia can, in effect, organize itself and train itself, and that the governor is authorized to accept their services. This procedure would thus change the nature of the unorganized militia and also give the governor authority similar to that given to most pre-Civil War governors in terms of accepting the services of volunteer militia groups." [MP]

4.26 It is the fact that the citizenry are considered militia, although unorganized, that gives the federal government the power to enact the draft of individuals into the armed forces.

A. No. Historically, there have been drafts into both the state militia and into the armed forces, although today when we think of the Draft, it is only thought of in connection with the armed forces. The Draft, into the Armed Forces, is done under the War Powers of Congress (see 1.12). The U.S. Supreme Court in the Selective Draft Law Cases of 1918 specifically found that power to Draft into the armed forces was based on the war powers of Congress saying:

"The possession of authority to enact the statute must be found in the clauses of the Constitution giving Congress power ' to declare war ...to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years..to make rules for the government and regulation of the land and naval forces'" [245 U.S. 377]

4.27 The Constitution has been suspended since 1933 and Americans are living under admiralty jurisdiction. This view is sometimes expressed by those who also support the new militia.

A. Most Americans believe that the Constitution is still in force. For what it is worth, the most important legislation and law regarding the the militia occurred before 1933. Since the courts believe that the Constitution is not suspended, it is worthwhile to understand how courts interpret the militia clause of the Constitution.

4.28 Violations of the Constitution are more than provocations. They are themselves violations of law. E.g. 18 USC 241, Conspiracy to Violate Civil Rights, or 18 USC 242, Deprivation of Civil Rights Under Color of Law. They may also violate state criminal laws. Since the militia is obliged to enforce constitutional laws, they have the duty to enforce the laws being violated by such unconstitutional action. That means militiamen may be faced with the duty to arrest those trying to arrest them, and thus the divide between law and anti-law poses the threat of armed conflict.

A. This statement is dangerously wrong.

Assume a civil disturbance breaks out 10 miles away from where a state National Guard unit is training for riot control duties. The National Guard unit cannot, on its own, decide to intervene and put down the disturbance. The Guard MUST await orders from authorized civilian authority.

Militias have never had an obligation to enforce the law. They are a military or paramilitary force--they follow civilian authority. They don't have any general obligation to maintain the peace or enforce laws.

The case of Chapin v. Ferry discussed at 4.11 is a perfect example of this point. Strikes and rioting are occurring at coal mines in Washington state. The mine manager asks the National Guard commander to protect the mines. The commander "declined to act without orders from the governor" and then telegraphs for orders. He gets orders from the governor and follows them. And as the situation changes, he keeps telegraphing the governor for new orders.

4.29 Can a governor prevent the "unorganized militia" from training?

A. Militia law deals with militias. A group that isn't authorized by the state as a militia isn't one. Accordingly, whether or not the new militias can be prevented from training is not a question for the governor in his capacity as commander-in-chief of the militia in state service.


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