A New Local Militia for the modern times?

 "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 is the original version in the national archives.  Pretty self explanatory.  To me the words "Well Regulating" meant that they elected their own officers and preformed the training required of the militia of the day and they equipped themselves with the common weapons of the day, it was logical to me  why people had issues with the explanation was beyond me.  

    This quote stays on my desktop as a reminder.

      I pulled this off "American Greatness"

In an obscure but important footnote to the first volume of the Gulag Archipelago, Aleksandr Solzhenitsyn wonders what would have become of the Soviet terror if the citizens of Russia had armed themselves with hammers, axes, pokers—anything—so that arresting officers of the NKVD would have had to worry whether they would survive each night. The most powerful tyranny in the world could not have stood up against such action. Instead, tens of millions of Russians submitted meekly to the state, one by one. Why?

The same question came up in my elementary school unit on the Holocaust—why did the Jews get onto the trains? Did they fail to understand what was in store for them? In my childhood mind, I tried to unravel questions that seemed as bitter as the fact of the Holocaust itself: Why was there no effective resistance? Was submission so ingrained in these people, or individual courage so lacking

The answer in both cases is that it was not courage that was lacking, but organization. This concept glimmers through Solzhenitsyn’s description like a fleck of gold in the pebbly shallows of a stream: He imagines a group of neighbors, a half-dozen perhaps, lying in ambush downstairs for the secret policemen. He specifies a group of neighbors. He specifies collective action. One courageous man resisting alone is a suicide. But one courageous man leading a few of his friends can put up a fight.

The wording of our Second Amendment—or, rather, the placement of a single comma—has engendered a raging debate that reached the Supreme Court and persists to this day: Is the second clause of this all-important sentence operative, or dependent? Is the right to bear arms absolute, or does it exist only because of the need for a militia?

The anti-gun lobby believes that, if they could demonstrate that the right to bear arms depends on a well-regulated militia, they could chuck the whole thing in the trashcan—because the need for a militia is clearly outdated and archaic.

And the pro-gun lobby has aquissed without giving it much thought: They hang their entire argument on the contention that the right to bear arms should remain, even if militias are no longer important in everyday life. 

No one stops to ask: What makes us think we no longer need a well-regulated militia?

Regulated, in this context, means orderly or well-trained, rather than regulated in the red-tape sense we might think of today. It refers to the group of all able-bodied men in every town in America: Each man is responsible for maintaining a serviceable weapon, plus powder and lead. These men turn out once a week on the town green for basic drill under a captain and lieutenants of their own election. How did this idea fall out of fashion? 

The long and the short of it is we’ve had to fight many serious wars. Each war necessitated a large professional army—as George Washington anticipated. And, after each war, the army wanted to stick around in its new enlarged state, and the government allowed it to remain, gradually eating up the prerogatives of the local militia. 

We know the intention of the founding fathers in this respect: Washington explained in so

 many words that the militia was supposed to be the main standing force for domestic

 security, strong enough at least to hold out in any war until a professional army could be

 brought up to speed. Such was the distrust of a standing army, as a concept opposed to

 individual liberty, that, as soon as the Revolutionary War ended, the Continental Army was

 disbanded in its entirety.

James Madison warned us exactly how this would go in his “Political Observations,” and is worth quoting at length:

"Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people."

This is by no means an attack on the professional army we maintain today—though we on the Right are perhaps too prone to confuse our respect for the men who do the fighting with respect for the institution. The point is that we are using our professional army as an excuse to forget that our security, our individual liberty, and our freedom of action are our own responsibility. The government does a poor job of protecting what it was never designed to protect in the first place. 

The local militia, not our state or federal government, was supposed to protect all liberties, just as the tall grass protects the dunes. Once a citizen and his neighbors abandon their important duties as custodians of regular life, handing it over to paid substitutes who acquire new power and authority in the process, the erosion of liberty follows. The wind and the waves are relentless; the sand gets carried away by the handful.

This is how we arrived at the present day, where the very idea of the local men meeting once a week to drill with their guns would seem like dangerous lunacy to half the country—and like subversive lunacy to our gigantic, all-seeing, all-controlling federal government. It is, of course, difficult to reclaim responsibilities, once given away. The flip side of any responsibility is a quotient of power, and nobody gives up power willingly

But let us suppose that Americans decided to revive this institution in towns and cities across the country. It might start by having an informal weekend get-together. The men would choose a captain, who would serve for a limited time and then be barred from running for the position again for a few years. Each man would take the phone numbers and addresses of three to four men in the group, and would give his own contact information to three to four others. This way a message could originate from any point in the group and be distributed quickly; there would be no single point of failure, and no one would be in possession of the entire list of members. The captain would likewise exchange information with the captains of neighboring towns.

The group would meet once a week for an hour’s drill. No highfalutin pseudo-special-ops training would be necessary—or permitted. The men would simply learn how to move together effectively. The idea is simple: That, at a moment of distress, the many will come to the aid of the few. A call for help broadcast to the local network will bring an immediate, local response. A town in distress can call up help from sister towns—as happened one April morning in 1775. Neighbors will be ready—and will have practice—coming to the aid of their neighbors.

It may seem ridiculous or paranoid, or simply unnecessary, to revive such an institution in a free society. But only a free society could support it. A little organization can go a long way. It might even prevent a future generation some hundreds of years distant from having to look back at us and ask: Why?

A Theory of the American Militia

 I shamelessly clipped this from SSG.     It is long and worth the Read, I have some thoughts on the RBG situation but that blogposting isn't completed.

This essay is intended to be read together with “A Theory of Citizenship” The prior essay argues that citizens are officers of the state, and that citizenship is where the sovereign power resides. This is why (that essay argues) the Declaration of Independence could correctly argue that the state may be altered or abolished by the citizens, should it become destructive to their rights. Though that power is revolutionary, it is more often a source of stability because it restrains overweening governments.

Similarly, though that power justifies the people in overthrowing a bad government, it more often is used to support one the citizenry continues to believe worthwhile. This use of the militia — note that I am speaking of “the” rather than “a” militia — is so much less controversial that much of it is black letter law. However, some parts of it have not been spelled out, and they are important to our current situation. This essay will explore what the militia is, when the militia can be called up, by whom, and for what just and proper purposes; and how the militia can act to stabilize our current situation, in which our different levels of government seem to be striving against one another rather than working together.

I. Black Letter Law

That the militia exists, and that it has permanent role in ending unjust insurrection or invasion, is quite clear in American law. The Constitution grants Congress the power to use “‘the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” under command of the President, who can determine who their officers should be.

The militia exists at both the state and Federal levels, which means that the same citizens that might be called up by the state officers can also be called up by Federal officers and regulated by Congress while in Federal service. The Second Amendment to the United States Constitution famously describes the militia as “necessary to the security of a free state,” that is, not as an optional but as a necessary and essential feature.

The laws governing exactly who is in the militia have changed over time. As of 1916 it was “all able-bodied males” who were or were intending to join the American citizenry; currently, according to 10 USC § 246, it is “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 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.” This includes the “unorganized militia,” that is, everyone not in the National Guard. Thus, ordinarily male citizens are always in the militia, and females if they elect to be.

Note that the state power to legislate around the militia arose prior to the formation of the United States, and thus not restrained by Federal power. Thus, while Congress may pass laws to regulate the Federal use of the militia, it may not impose those rules on the same citizens insofar as they are serving as members of their state militia. By the same token, state rules may not constrain the militia if it is acting in Federal service.

II. Case Law

There is a significant piece of case law concerning the militia and its right to keep and bear arms. In US v. Miller, the Supreme Court ruled on militia protections under the Second Amendment. The more recent Heller vs. D.C. ruling treated the right of individual citizens qua individuals to keep and bear arms, but the Miller decision focused on the right to keep and bear arms for militia purposes.

The decision found that American citizens have a right to keep and bear arms for militia purposes insofar as those arms are of military use proper to a militia. A sawed-off shotgun was not protected, the court said, precisely because it had no military use that was obvious to them (though in fact such weapons were regularly used in the trench warfare of World War I, the most recent war before Miller). The decision includes an excellent summary of early writings on the militia, both from the Founding and after, and is worth reading in full.

The upshot is that the Second Amendment, insofar as it protects weapons for militia service, protects weapons of war specifically. Precisely which weapons may be kept and borne for militia service will change with time, as the technology changes, but it will be those weapons best suited to military service while acting as a militiaman that are most protected. Currently, unquestionably, the Miller decision provides the strongest protection to the AR-15 rifle. This rifle, though semi-automatic rather than fully automatic, is close enough to the military’s standard issue rifle that many parts can be interchanged with military stores should the militia and the regular military need to interoperate. Likewise, its correct and accurate use will be so familiar to American soldiers and Marines that any of them could serve as trainers to bring members of the militia up to speed quickly in order to repel an invasion or end an insurrection.

Thus, laws banning possession of AR-15s for militia service are unconstitutional. Note that militia service starts, by the black letter law, at 17 years of age. Very many extant laws prohibit even possession of AR-15s by those under 18 years of age.

III. On the need for a theory: problems with the law

The existence of those presumably unconstitutional laws is not the only problem with the law as it stands. A law that only considers the suppression of insurrections cannot grasp the full truth about the American militia, as the militia itself arose in an insurrection. The laws that allow governors or presidents to appoint the officers of the militia may be fine for cases in which the citizens agree to serve to suppress an insurrection. It cannot be the right way to appoint officers for cases such as the Declaration of Independence describes, as a tyrannical power will never call out the militia against itself, nor appoint officers fit for the cause of “altering or abolishing” such a power. We need a theory that captures the full array of cases in which the militia can be used.

The distinction between able-bodied males and females is probably untenable under our current understanding of equality of rights between the sexes. Since the Second Amendment per Miller entails a right to keep and bear weapons of war, the current black letter description of the militia would appear to create an inequality of rights for men and women. This is a problem that needs to be addressed as well.

Likewise, the exclusion of citizens over the age of 45 (for the Federal militia, at least) appears to be improper. The Veterans Exempt, whose flag heads this article, were in their sixties when they volunteered to fight again for the liberty of the American People. The Miller standard would also seem then to create an inequality of rights for older vs. younger Americans, which is improper.

Finally, the formalized command structure that the black letter law describes cannot be the only proper one. There will be cases, such as on Flight 93, when a citizens militia has to stand up without receiving formal orders. This can happen for a number of reasons. We need a theory that explains how and when it can happen, and what steps should exist to regulate this to prevent its misuse.

IV. Preamble to the theory: the militia is right and proper

It is necessary to begin by rebutting the argument, current in American politics, that the militia is improper — some even go so far as to say that it is ‘a tool of white supremacy.’ The Security Studies Group rejects all forms of supremacism, but also considers this particular claim to be ridiculous. The militia includes all Americans, and arms them against tyranny. In its revolutionary role the militia is, indeed, the final appeal against tyranny to include being subject to supremacist rule.

In its more common role of supporting governing institutions rather than replacing them, the militia likewise upholds a common peace and lawful order that is beneficial to all Americans. The burning of city centers does not benefit minority groups in America, and in fact disproportionately harms them as they disproportionately live there. Rioting and looting cause harms that can last for decades. Family owned businesses, more frequently black or immigrant families in city centers, often never recover from the destruction. These acts of instability are a direct assault on the generational wealth of our fellow citizens, black and otherwise.

Similarly, supporting the police does not entail supporting anything like ‘white power.’ Police tend to be drawn from the community that they police, and tend to reflect that community’s diversity. There have been strong initiatives for decades to further that diversity, especially at the top: just to name four, Atlanta, Charlotte, Philadelphia, and Seattle all entered this period of riots with black female police chiefs.

The militia thus has a proper role to play in a just society, and an even more proper and necessary role to play in an unjust one.

V: The Citizen and the Militia

As discussed in “A Theory of Citizenship,” citizens have a tremendous power that no other officers of the state have. The citizens alone can decide when to dissolve the Constitution, acting either through their delegates at a constitutional convention, or through the power the Declaration of Independence proclaims. No one may dissolve the United States against their will nor without their consent.

This power to decide to set aside the laws extends to the citizen as juror. Only citizens may be jurors, and as jurors they may simply refuse to convict someone who is charged with a crime. They may do so because they truly believe that person to be innocent, because they believe the law is unjust, or for any other reason. If no jury will convict a person, that person’s actions are approved as acceptable and he or she is released.

The militia is the vehicle for invoking the power to dissolve the government by force, which is a power the citizenry retains inalienably per the Declaration of Independence. Likewise, the militia is one of the final vehicles for protecting an upholding a state the citizens continue to approve of against insurrection or invasion. The citizen is the officer of the state that holds the final say on both of these matters, and therefore the militia properly belongs to them.

All citizens must therefore have at least a right, if not a duty, to serve in the militia. It cannot be limited to only men, extended to women only if they enroll in the National Guard, nor can it exclude older American citizens. In cases of invasion or insurrection against a just government, it can certainly exclude enemies. This means those who have taken up arms against the state, or those who have provided aid and comfort to insurgents or invaders:  traitors, in a word, per the Constitutional definition. When taking up arms to replace an unjust government, it is the state that has betrayed the bond.

The Federal or state militias may have black letter regulations that they abide by, but when we speak of “the militia,” it belongs to the citizens. They must retain the right to call it up regardless of any government orders, and they have a right to serve in it if they choose.

VI: Calling Up the Militia

Nevertheless, for the ordinary purpose of supporting a government that continues to enjoy the approval of the citizenry, having ordinary citizens call up a militia is pragmatically the worst method. It may be done as necessary, morally speaking, but when possible there are several better options. I list them in order or pragmatic preference.

A Sheriff Deputizing a Militia. We usually refer to a sheriff’s deputizing of citizens as a “posse,” rather than a “militia,” because the sheriff is a county-level officer. The phrase “posse comitatus” means roughly ‘power of the county.’ A ‘comitatus’ is properly a mounted war band of feudal warriors supporting their lord, from which the title ‘Count’ and the designation ‘county’ arise.

The phrase “posse comitatus” also refers to a Federal law limiting the use of military force for law-enforcement. The government may use the military and the militia to enforce Federal laws — the constitutional language lists ‘enforcing the laws of the Union’ as the first business of the militia — but there is a longstanding preference for using police rather that military units. The sheriff is thus the best choice because his deputizing of citizens retains regular order. As much as possible, the regular order of law is to be preferred if the idea is to end an insurrection, just because the desired end of the process is the restoration of law and order. Departing from it as little as possible makes that end easier to attain.

In addition, because the sheriff is a local official, he or she probably knows which citizens are best suited to serve. As Sun Tzu notes, victory is most easily obtained when you know both yourself and your enemy. Unlike a distant official who is calling up forces with broad strokes, the sheriff can appoint officers whom he or she knows to be good citizens with good judgment. This might include members of the local fire department, with whom the deputies work regularly, for example. This personal knowledge will be most likely to ensure that the deputized citizens help resolve problems rather than causing new ones. If the Sheriff starts now, he or she can even gather together a picked group of citizens and train them in case it comes up — a true ‘well regulated’ militia.

A side benefit is that as deputies, members of the posse/militia will enjoy the same qualified immunity as police officers. This will allow them to operate with a degree of safety from legal issues arising from their performance under arms.

Governors calling State-level militia. There will be cases when ordinary law enforcement, even with deputized citizens, are inadequate. Governors have the power to call out the National Guard, which is organized and trained for the purpose. Some governors also have an additional state militia force that performs at least occasional training in disaster relief and such.

In extreme cases, the states do retain the power to tap the general militia. Black letter law at the state level has often attempted to obscure this, as the preference for professional forces among professional politicians was very strong during the last century. Nevertheless, the power pre-exists the constitutions of the United States and the several states, and can be called upon if it must be.

As agents of the state, militia also enjoy substantial legal immunity.

The Insurrection Act and Federal militia. The clear exception to the “posse comitatus” law is the Insurrection Act, which allows the President of the United States to use military force to restore order under certain circumstances. Because the state militia and the Federal militia entail the same citizens, this can also allow the President to seize control of a state militia or National Guard that is being misused by a bad governor (as happened during the school desegregation crisis).

This is usually less pragmatic because the Federal government is more distant from the problems, and thus less knowledgeable about them. Likewise, it is a substantial disruption of regular order, which means that there is a larger distance to travel if the goal is to restore regular law and order. Nevertheless, if local or state governments are refusing to enforce the law, are violating the rights of the citizenry, or are refusing to defend the rights of the citizenry, this can be appropriate.

Federal militia actions also enjoy substantial immunity.

Ordinary Citizens. Citizens always have a right to self-defense, as well as the right to defend another from death or grievous bodily harm. That is the ordinary, individual right, not the militia power. The power of citizens to constitute themselves into a military force is inalienable, as discussed above. It will be practically necessary only under a few circumstances. The first and least likely is the Declaration of Independence case.

Much more likely is when citizens come under attack by terrorists, insurrectionists, rioters, arsonists, or looters. In that case citizens are very likely to be the only force capable of responding in defense of the common peace and lawful order at least for a short time. In the recent crisis, however, we have seen several occasions when the police force vanished from afflicted areas of cities for the whole night or longer. Citizens who are left to themselves by a failure of state and local power have every right to defend the common peace and lawful order against those who would destroy it.

Ordinary citizens who decide to call themselves or each other up as militia enjoy no immunity for their actions. They are formally held to the law. For those who suggest that police should be stripped of qualified immunity, the citizen-called militia thus offers an option which actually has a higher degree of legal accountability. They can be held strictly to ordinary law, even though they are likely to be acting in extraordinary circumstances.

Note that this may mean that citizens have to defend each other with the jury function. Ordinary self-defense law often does not permit the use of lethal force to defend property. When business owners are facing arsonists or looters and a police response is absent, however, more than private property is at stake. Should a prosecutor fail to recognize that and bring charges against citizens who use their militia function in this way, other citizens as jurors have the duty to consider whether the state can rightly enforce its laws against the people who defended what the state abandoned. If jurors consider that their fellow citizens used good judgment and reasonable force in the face of the collapse of ordinary law, they should approve the action by acquitting the citizens.

This in turn proves to be the major check on the misuse of the militia power by ordinary citizens. The case will end up being put before a jury of their peers, and thus subject to a ruling by a broader body of citizens as to whether they did well or badly. If they did badly, the jury is free to convict them according to ordinary law. If they did well, the jury is free to consider that ordinary law had temporarily failed, and to understand that they acted as good citizens in preventing arson or looting, rioting or insurrection.

Citizens who agree with the militia’s actions but are not on the jury should be encouraged to donate to the legal defense fund. Most charges in America end in plea bargains, not trials. If the citizen militia is to be protected by juries that approve its actions, the members must be able to afford to go to trial before a jury.

VII. The Role of the Militia in the Current Crisis

The current crisis is marked by different levels of government striving against each other. For example, state troopers in Oregon were unable to obtain cooperation from the district attorney in Portland toward prosecuting the crimes for which the troopers were making arrests. The city was actively shielding the lawbreakers from the state. In order to make their arrests effective, the troopers became deputized as US Deputy Marshals, so that they could bring charges to a US Attorney instead. Citizens in the meanwhile have been left exposed to nightly riots that prosecutors have declined to stop. This basic failure of the government is the kind of thing that can require a citizen response.

Our crisis has also been marked by police abandoning neighborhoods, so that citizens were left exposed to rioting, arson, and looting. Police agencies are often resigning or retiring en masse, leaving citizens and neighborhoods unprotected. Other cities, like Atlanta, have seen a troubled prosecutor level such absurd charges against police that the officers are frankly afraid to do their jobs. This, too, leaves the citizen unprotected.

Though it has so far affected only certain cities, where prosecutors are friendly to the rioters, there is a basic threat to the common peace and lawful order that arises from these failures of government. The power to restore order ultimately lies, however, with the citizenry. As the Second Amendment says, the militia is necessary to the security of a free state. As citizens we have every right to put things back in order.

We have also the power to do so, provided that we act in concert. We have the numbers, the arms, and if we learn to act as jurors and citizen donors to legal defense funds, we have the means to ensure that proper accountability is maintained. Those who do badly will be punished, but those who do well can be defended by their fellow citizens.

VIII. Conclusion

A proper theory of the militia requires us to recognize that it has both the revolutionary function and also the function of sustaining governments of which the citizenry continues to approve. Both of these functions are defended and enshrined in our founding documents and compact, though only one of them is fully reflected in our laws and our jurisprudence. The right theory should embrace both.

The theory offered here is grounded in the theory of citizenship in which the citizenry are the officers of the American republic who jointly exercise the sovereign function. That theory is in turn grounded in the language of the Declaration of Independence, itself grounded — so it says — on the will of the Creator. That will is that we should enjoy equality of our inalienable rights. Governments are instituted by their citizens to defend those rights. Should a government become destructive to those rights, it is the right of the people — the citizenry — to alter or to abolish it. The right to take up arms, on their own decision, is thus inherent in the citizenry.

Yet governments are not always destructive to the rights of the people. Hopefully, in fact, the government will take its mission seriously most of the time. In such a case, the people also have every right to insist on not having their approved system of government stolen from them. It cannot rightfully be taken from them by invasion, nor conquest, nor by insurrection. The citizenry has every right to stand up for their system of government if they want to continue to enjoy it. The right to defend their country, civilization, and values thus also is inherent in the citizenry. They do not need anyone’s permission, though each citizen must subject his or her actions to the approval of his or her fellows.

The militia is simply what we call them as a body when they do perform these military functions. In the second case, though the militia can (and sometimes must) be called by the citizens on their own authority, it is more wisely called by appropriate officers. It functions best when it trains in advance, and when the citizenry has been taught to view it as a natural function of their office as citizens.

Ultimately, while the professionalization of the use of force has advantages, the militia remains just as described in the Second Amendment:  necessary. It is necessary because the citizens cannot exercise their rights without having the option of functioning as a militia. It is necessary because government officials sometimes turn tyrannous, and even if they do not, sometimes turn on each other so that the state or the law temporarily fails. It is necessary because, finally, the citizen is the only officer of the state certain to be present for terrorist attacks.

For all these reasons, I believe the theory of the militia presented here to be true and correct. It is functional and sufficient for the current crisis, provided that it becomes widely understood. I think it also captures the history, and will serve as a fit guide for the future.

Origins of the Militia

I snagged this from "Angry Staff Officer".  I have used his stuff in the past for posting on my blog.  I also being a student of history know that the "Militia" at least wise on the American Frontier was any male of age was required to keep a rifle and powder to defend the homestead and surrounding lands from marauding indians and other raiders.   The Militia when lead well fought well.  But they didn't have the training to stand and slug it out with the British regulars.  I remembered a quote used in the battle of the Cowpens "Give me two good volleys then you can withdraw behind the regulars." stated General Morgan of the Continental Army.  The Militia did as he asked and then withdrew behind his regulars, and his defense of depth absorbed the British attack and then he performed what is called a "Double Envelopment" of the British at the end of the battle.  He is credited with having the first original tactical thought of either side during the war. You can read about the "Battle of Cowpens" here for more detail.  The Pics are compliments of "google"

A Short History of the Militia in the United States

The idea of a militia – that is, groups of armed citizens that enter military service in time of need – has a long and contentious history in the United States. The idea of what constitutes the militia under the Constitution is has stirred up a lot of debate these past few years, and was reinvigorated by the so-called militia that took over federal land in Oregon in 2016. The topic is fraught with Constitutional, legal, political, and societal issues that go all the way back to the nation’s founding. However, although the issue is complicated, with a little effort we can trace how the fundamental idea of the militia has changed over time to where it exists in State and Federal laws today.

English Beginnings

The idea of militia goes back to English traditions beginning with the Assize of Arms in 1181: “He will possess these arms and will bear allegiance to the lord king, Henry, namely the son of empress Maud, and that he will bear these arms in his service according to his order and in allegiance to the lord king and his realm.” This was further reinforced in 1285 with the Statute of Winchester in 1285: “Every man shall have in his house arms for keeping the peace according to the ancient assize.” Perhaps the clearest origination of what we would consider the American militia tradition can be found in 1581: “If any man being the Queenes Subject, and not having reasonable cause or impediment, and being within the age of sixtie years (except spiritual men, justices of the bench, or other justices of Assise, or barons of the Exchequer) have not a long bow and Arrowes readie in his house, or have not for every man childe in his house betweene seven years and seventeene of age a bow and two shaftes, and everie such being above seventeene years, a Bowe and foure shaftes, or have not brought them uppe in Shooting: if any man under the age of four and twentie years, have shotte at standing pricks [targets] (being above that age) have shot at any marks under eleven score yards with any prickshaft or flight.”
Perhaps the strongest cultural tradition to transfer from England to its colonies was the distrust of a standing army that could enforce the Crown’s will and circumvent parliament. England’s strength lay in its navy, which was out of sight – and often out of mind – and could not project the Crown’s power inland. The army was not considered a gentleman’s occupation and soldiers were looked upon as mere pawns.
Through the colonial wars of the 17th and 18th centuries, English colonists in North America had plenty of opportunities to see regular British Army soldiers. And for the most part, the contact was not positive. The often overly religious colonists saw the Regulars as profane, uncouth, and generally prone to immoral behaviour. For their part, the Regulars thought the colonial militia prayed too much, were not disciplined, and couldn’t be relied upon when the shooting started. The militia through the colonial wars racked up a mixed battlefield record. There were notable collapses, such militia refusing to cross colony lines – an issue that would prevail well into the 19th century – but also successes as well. The most notable came in the 1744 all-militia expedition to seize the French fortress of Louisbourg in Nova Scotia. After a conventional siege, the all-militia force took the fortress, shocking both leaders in France and England. By and large, the militia were a successful auxiliary force for the British in North America, freeing up Regulars for offensive military operations.
Each colony had their own militia laws but most agreed that the militia consisted of all able bodied white males, ages 18-45. These militia units were to be formed under the auspices of the colony’s charter and individuals were responsible for equipping themselves. The first muster of full militia regiments took place in 1636 in the Massachusetts Bay Colony. Militia spirit waxed and waned in the various colonies, depending on the prevailing spirit of the age. It stayed especially strong in the New England states, where militia units developed into political and social institutions as well as military. The prominent political leaders that emerged in the run-up to Independence were usually very active in the militia. The Sons of Liberty essentially infiltrated the militia system of New England, ensuring that there was a ready force of angry citizens in 1775 when the festivities kicked off at Lexington and Concord.

American Revolution and the Early Republic

 

Militia units formed the backbone of the force that began the American Revolution and were used to augment the Continental Army as the war went on, although they continued to have mixed results. Still, it was the militia that carried out the Siege of Boston and gave George Washington an army with which to prosecute the war before the Continental Congress could provide authorization for a semi-professional force. The militia traditions ensured that there were trained and (somewhat) ready troops to fill the ranks of the Continental Army, as well as experienced officers.
When the American Revolution ended, the Army was cut down to a tiny force in reaction to a prevailing anti-monarchical spirit that viewed a standing army as a danger to a free people. Even after the toothless Articles of Confederation were scrapped and the Constitutional debates began, the role of the militia was still hotly debated. The Federalists viewed a standing Army and Navy as being necessary for protecting economic freedom and projecting power. The Anti-Federalists were convinced a standing Army would only give more power to the Federal government and reduce the authority of the states.
The Framers of the Constitution eventually got their way, angering the Anti-Federalists by establishing a larger Army, and more importantly, by giving Congress authority over the militia. Article I, Section 8 (the Militia Clause) states:
“Congress shall have 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.”
This removed overall control of the militia from the States to Congress. The Second Amendment to the Constitution added the most often-cited phrase associated with the militia: “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.” And yet, the militia were already susceptible to control from the Federal government as outlined in Article I, although this was often disputed by State governments.
Following the disaster that was St. Clair’s Defeat in the Ohio Valley, Congress passed the Militia Acts of 1792 which authorized the President to call up the Militia in times of invasion or insurrection and provided for the organization of State militias organized into companies, battalions, brigades, and divisions by their States. Militia were still considered the de-facto defense force for the nation. The idea of the “citizen-soldier” retained a strong romantic hold over the nation’s leaders. However, militia were still governed by State laws, most of which did not allow service either outside the State or outside the nation.
This was most starkly visible in the War of 1812, when the governor of Massachusetts disobeyed President James Madison’s orders to send the Massachusetts Militia outside the state’s borders. The militia suffered notable setbacks in that war, most notably in the British invasion of Maine in 1814 and outside Washington, DC that same year. In both instances, large militia forces fled from the battlefield, often without firing a shot. Militia did have success when fighting in fortifications or when backed by Regulars. The War of 1812 was highly unpopular, so it is understandable to see why the Militia did not commit the same way they had in 1776.
Following the War of 1812, the Militia fell into what can only be called a state of disrepair. Yearly musters were not well attended, inspectors were lax, musters were more often than not an excuse for men to get away from their families and drink, and States neglected to keep good stocks of arms and equipment. The only exception to this were companies of Volunteer Militia that were formed by enterprising and industrious individuals of a martial nature. Company commanders often equipped and clothed their units with private funds and presented their organizations to the State for acceptance as Militia. As the Organized Militia waned in popularity, the Volunteer Militia grew. Because they were considered “elite” companies, they were given honorary positions as the flank companies of regiments, either as guards or light infantry. Few artillery and cavalry Militia companies ended up existing as anything other than paper companies in the Volunteer Militia. Still, State Militia laws still generally prevented their forces from serving outside the country.

The Civil War

 

To essentially get around the Militia system, the War Department created “volunteer” units, often largely made up of Militia units. When war was declared, the President would issue a call for volunteers with each state given a quota. U.S. Volunteers served with distinction in the Mexican-American War and formed the vast majority of U.S. troops in the Civil War. Generally speaking, the first volunteer regiments sent from each state in 1861 were formed from the Volunteer Militia organizations, many dating back to before Independance. These regiments, for the most part, compiled outstanding records of service in the Civil War and demonstrated that a militia culture could be of great value to the nation. In 1862, the Militia Acts of 1792 were amended to allow African-Americans to serve in the Militia.
Following the Civil War, interest in the Militia dropped off entirely as the nation was tired of war. Between 1869 and 1875, the Militia began to grow. Again, it was the Volunteer Militia that remained the most active force, taking on the role of the Organized Militia. The Enrolled Militia continued to be those men of military age who were eligible to be called up for mandatory service. The Volunteer Militia grew more and more active through the 1880’s, forming into State regiments with State funding. Most States continued to organize their Militia along the lines of their own Militia Acts, no revision having been made to the National Act since 1862. Despite progress in the professionalization of the Militia, U.S. Volunteers were used again in the Spanish-American War in 1898.

Towards a National Guard

 

The Militia Act of 1903 created the National Guard out of the Organized Militia and created the Reserve Militia, to consist of males 17-45, those eligible for the draft. This removed more control of the Militia from the States but provided additional funding for training, equipping, and manning the force. It was the National Defense Act of 1916 that fully modernized the National Guard, provided Federal funding for training, drills, annual training, and equipping. It did, however, stipulate that in return, the War Department and the Army gained far more control over the Militia; for example, the Army was now able to dictate what types of units would be raised in each State. The Act also removed the issue of Militia serving outside the United States by stating that when called into Federal service, the National Guard would be considered Federal troops.
From then on, the National Guard has served with distinction in all the major conflicts of the United States. The idea of a citizen-soldier still retains its popularity, and for good reason: the National Guard ensures a link between civilians and the military in this age of the All-Volunteer Force.

Common Legal Issues

 

 Georgia State Guard forms OPFOR to assist the National Guard in their duties

Most States still have Militia laws on their books, which provide authorization for State Defense Forces or State Guards. Some States – like Texas, surprise, surprise – even have fairly generous Militia laws that allow the Governor to call up private citizens as part of an unorganized militia in the event of invasion or natural disaster. However, these Militia forces all come under the umbrella of the State, per each State’s laws.
Additionally, there is a lot of incredibly boring – yet important – legal documentation that further defines how the Militia may be used. United States Code Title 32 outlines how the organized Militia may be used. The critical piece to understand is that the National Guard is exempt from the Posse Comitatus Act of 1878, that prohibits Federal troops from enforcing domestic policies. The National Guard may do so, within their own states, if called upon by their governor. It also means the Guard takes a lead role in natural disasters as part of the Defense Support to Civil Authorities mission, in conjunction with the Federal Emergency Management Agency. Title 32 differs from Title 10, which is the section of the United States Code that governs Federal troops. Along with Title 32, there have been multiple court decisions that continue to define how the National Guard can be used. As part of Constitutional Law, the definition continues to be further honed and shaped.
In summary, the National Guard remains the “well-regulated Militia;” the Militia is not anyone who declares themselves so.
For further reading on this topic, check out Michael Doubler’s book, I am the Guard.