MILITIA - HISTORY AND LAW FAQ
Web Version 2.0
Last Updated November 6, 1995
Part 1. -
Introduction & Summary Material
Part 2. - QUICK REFERENCE AND LIST OF QUESTIONS ANSWERED
Part 3. -
History of the Militia in America
Part 4. - The
Militia Today
Part 5. -
Legal Issues for the New Militia
Part 6. -
Afterword by Mark Pitcavage
Part 2. - Quick Reference and List of Questions Answered
The references are to major discussions of these topics or
cases.
Historical Origin of the Term "Unorganized Militia"
Was the term "unorganized militia" used in colonial
America? 3.4
When did the term "unorganized militia" originate? 3.50
Who says that the term "unorganized militia" was a way
for states to avoid the intent of the 1792 Uniform Militia Act? 3.51
What is the tradition or history that the new militias are
following in embracing the term "unorganized militia"? 4.1
Articles of Confederation
Articles of Confederation: 3.13
United State Constitution
War Powers/Draft: 3.65, 4.26
State Troops versus Militia: 3.13, 3.20, 3.59, 4.3, 4.4
Militia Clause: 3.15, 3.50
First Amendment: 5.8, 5.9
Second Amendment: 3.21, 3.22, 5.8, 5.9
Ninth Amendment: 4.20
Tenth Amendment: 3.43, 4.21
Fourteenth Amendment: 5.4, 5.9, 5.10
Federal Law
1792 Uniform Militia Act: 3.29
1903 Militia Act (Dick Act): 3.61
1916 National Defense Act: 3.62
Current Militia Law: 4.3
State Law
1776 Virginia Bill of Rights: 3.21
1837 North Carolina Law showing regulation of volunteer
companies: 3.47
Current New Hampshire militia law: 4.8
Current New Hampshire militia law against unauthorized
paramilitary organizations: 5.6
1876 Illinois Act against armed parading/unauthorized
paramilitary organizations: 5.9
Current Texas law against armed parading/unauthorized
paramilitary organizations: 5.10
Court Cases
1820, Houston v. Moore, U.S. Supreme Court - discusses federal
and state constitutional powers over militia: 3.34
1839, Opinion of the [Massachusetts] Justices - state can exempt
whomever they want from militia duty: 3.43
1859, Opinion of the [Massachusetts] Justices - state cannot
change definition of who can join the militia once Congress has
specified that definition; also an excellent view of the history
of the militia as seen in 1859: 3.53
1879, Dunne v. Illinois, Illinois Supreme Court - State, can
within federal law, exclusively decide size of militia: 3.59
1886, Presser v. Illinois, U.S. Supreme Court - Illinois law
against unauthorized armed parading/unauthorized military
organizations is valid: 5.9
1891, Chapin v. Ferry, Washington Supreme Court - discusses
granting local authority over militia: 4.14, 4.15
1934, Hamilton v. Regents, U.S. Supreme Court - state may
determine the degree of military training required of its
citizens: 4.19
1944, Re Application of Cassidy, New York State Court, shows
courts' attitude towards unauthorized paramilitary groups: 5.12
1957, NAACP v. Alabama, U.S. Supreme Court, premier case on
freedom of association: 5.4
1969, Brandenberg v. Ohio, U.S. Supreme Court, merely advocating
very unpopular views is not criminal: 5.4
1982, Vietnamese Fishermen v. KKK, U.S. District Court: in this
Texas case, the state of Texas intervened to support the
plaintiffs. The Court granted an injunction against members of
the KKK to stop violations of the Texas state law against armed
parading/unauthorized military organizations: 5.10
1990, Perpich v. Dept. of Defense, U.S. Supreme Court, opinion
traces the history of the militia to the present: 3.65
Political Voices on the Militia
George Mason: 1.10
Richard Henry Lee: 1.10, 3.16
John Smilie of Pennsylvania: 3.16
Dissent of the Pennsylvania minority: 3.17
Patrick Henry: 3.17
Federalist Reply: 3.18
George Washington: 3.33
Thomas Jefferson: 3.33
James Madison: 3.33
Examples of state Petitions and Resolutions to Congress to
legislate a new, more effective organization of the militia: 3.37
Governor Nathaniel P. Banks of Massachusetts, 1860 3.52
Theodore Roosevelt: 3.64
Well-Regulated Political Voices (John Sullivan, Patrick Henry,
James Madison, Alexander Hamilton, The Federal Farmer, Benjamin
Lincoln, Luther Martin, James Wilson, David Ramsay) 3.22
******* PLEASE NOTE ******
The following list of questions and comments responded to
includes some statements that are factually incorrect. They are
listed here to help the reader navigate the FAQ. Please see the
text for explanations.
Part 1. -
Introduction & Summary Material
-----------------------------------------
1.0
Read this First
1.1
Definition of New Militia
1.2
Copyright
1.3
What does [MP] at the End of an Answer mean?
1.3a
Who is Sheldon Sheps?
1.4
Other Acknowledgements
1.5
Availability of this FAQ
1.6
Dedication
1.7
Forword: The Power to Cloud Men's Minds
1.8
Areas of Agreement and Controversy
1.9
Summary
1.10
What is a militia?
1.11
This FAQ examines only American militias.
1.12
Who was the militia?
1.13
What roles have militia units served in U.S. history?
1.14
Summary of federal and state power over the Militia under the
U.S. Constitution.
1.15
Was there ever a federal militia and what does
"federalized" mean?
2.0 Quick Reference
2.1
Questions and Comments Answered in This FAQ
3.1 Standard Sources
3.2
Was there such a thing as a common law militia?
3.3
Was duty in the militia voluntary in the American colonies?
3.4
Was the term "unorganized militia" used in colonial
America?
3.5
Aren't you simplifying almost 200 years of militia history?
3.6
How did the militia change in the 1774-1775?
3.7
How could a Revolutionary militia be under civilian leadership?
They were after all, in revolt against the King?
3.8
Doesn't the uncoordinated behavior of the militia during and
after Lexington and Concord, in 1775 show that the militia were
armed citizens and not organized under the civilian leadership of
the rebellious colonies?
3.9
But during the Revolutionary war, the militia were LOCALLY
controlled for the most, each unit formed, armed and led by the
local elected commander. Only the wealthier states that could
afford to appoint provisional state militia officers did so.
Everyone else fended for themselves.
3.10
How did the militias do during the American Revolutionary War?
3.11
Did the early state leadership exercise much control over the
militia?
3.12
Were the states concerned during the Revolutionary war with the
subordination of the military, including the militia, to civil
authority?
3.13
What did the Articles of Confederation say about the militia?
3.14
What was Shays' Rebellion and how did it bring about more central
control over the militia?
3.15
Was Shays' Rebellion an example of a private militia?
3.16
If the militia, as all the people armed, was considered good by
the anti-Federalists, what was the evil?
3.17
Was there opposition to the strong federal power given by the
Constitution over the state militias?
3.18
How did the the federalists reply?
3.19
But isn't it clear from the debates surrounding the Constitution
and the Second Amendment, that everyone intended for the militias
to be the means by which the states could resist a tyrannical
federal government. How does handing almost absolute control of
the militia to the federal government fit with this clear intent?
3.20
What does the Constitution say?
3.21
What about the Second Amendment?
3.22
The Second Amendment refers to a "well-regulated"
militia, but I have been told that this the term
"regulated" in this time frame simply meant
"smoothly functioning" rather than in the sense of
"rules and regulations," and that there were no
regulations for the militia during this time period.
3.23
Does the Constitution only give the federal government the power
to organize, arm and discipline the militia when it has been
federalized?
3.24
What was meant by the federal power to "provide for
organizing" the militia?
3.25
Did the concept of the militia in 1792 ever include units that
were not responsible and militarily subordinate to civilian
authority?
3.26
What are the two major pieces of federal legislation concerning
the militia after the passage of the Constitution?
3.27
The Founding Fathers looked for inspiration to the common law of
England before the passing of the first militia statute. The
Anglo-Saxon militia, called the Fyrd, consisted of all
able-bodied men; and it was the Fyrd that the founding fathers
had in mind when they spoke of a militia.
3.28
What did the 1792 Uniform Militia Act do?
3.29
Some sections from the 1792 Uniform Militia Act.
3.30
Wasn't the very decentralized 1792 Act the only type that could
be passed by Congress? The very notion of the militia falling
under federal authority was considered a violation of the intent
of a militia (an armed citizenry), organized, trained, and
disciplined by state legislatures.
3.31
Could Congress prevent the States from creating militias?
3.32
Why did the 1792 Act provide that militiamen purchase and
maintain their own weapons? How did this change over time?
3.33
It is well known that George Washington was not happy with the
1792 Act as he had proposed a select militia system. But
Presidents such as Jefferson and Madison, surely they must have
approved of the 1792 scheme?
3.34
Was the 1792 Uniform Militia Act found constitutional?
3.35
Congress' right to provide for organizing, arming and
disciplining militias does not give it the right to say that
militias may not exist, nor can Congress prevent the militia from
equipping itself differently from that which Congress provides.
3.36
Did the states object to the degree of central control over the
militia in the 1792 Uniform Militia Act?
3.37
Examples of state Petitions and Resolutions to Congress to
legislate a new, more effective organization of the militia.
3.38
The federal government did very little to exercise its power over
the militia in the nineteenth century. Right?
3.39
Did all states have militia laws? For those states which did not,
wasn't the regulation of the militia up to the individuals of
local communities?
3.40
How did individuals become "enrolled" in the militia?
3.41
What happened to compulsory militia duty as called for by the
1792 Uniform Militia Act?
3.42
Why did the militia decline?
3.43
"Opinion of the [Massachusetts] Justices of this Court upon
a question referred to them by His Exellency, Edward Everett,
Governor of the Commonwealth, to wit, "whether it be
competent to the State legislature to exempt from enrollment in
the militia, all persons under 21 and over 30 years of age, in
virtue of the general powers of exemption possessed by the States
under the act of Congress regulating the militia."
3.44
Did all parts of the militia system decline equally?
3.45
Could states disband militia units?
3.46
There is a notion that among the historical militias, the
volunteer companies were self-regulating. Is this correct?
3.47
Example of regulations governing volunteer militia units.
3.48
What happened as opposition to the compulsory militia grew? Did
the individual states take action?
3.49
Weren't there people who thought the abolition of the compulsory
militia went against the spirit of the framers of the U.S.
Constitution and the ideals of the Republic?
3.50
When did the term "unorganized militia" originate?
3.51
Who says that the term "unorganized militia" was a way
for states to avoid the intent of the 1792 Uniform Militia Act?
3.52
In 1860, the state legislators of Massachusetts wanted to amend
the state militia law so as to allow blacks to serve in the state
militia. The governor vetoed the law. Why?
3.53
Why did the Massachusetts Supreme Court say in 1859 that the
state could not allow blacks to serve in the militia?
3.54
How extensive was the volunteer militia up to the beginning of
the Civil War?
3.55
What was the role of the militia in the Civil War on theUnion
side? To what degree were these militia units volunteer units as
opposed to the enrolled militia?
3.56
What about the Confederate side?
3.56A
How do you explain all the units named for those who raised them.
Weren't these independent military companies?
3.57
What happened to the militia during Reconstruction?
3.58
Why did support for the state militia increase in 1877?
3.59
How did Peter J. Dunne get out of jury duty in 1879?
3.60
How did the 1903 Dick Act come about?
3.61
Sections of the 1903 Dick Act.
3.62
Sections of the 1916 National Defense Act.
3.63
How was the militia reorganized in 1933?
3.64
How does one become a member of the National Guard today?
3.65
The 1990 U.S. Supreme Court decision of Perpich v. Department of
Defense provides an excellent summary of the history of the
militia from 1792 to the present.
4.1 This FAQ examines the
militia and the new militia today. In many cases, the reasons for
the answers given are those spelled out in Part 3 - History of
the Militia in America. This FAQ uses the term "new
militias" to describe the armed paramilitary groups that
have been forming in the United States in recent years. The term
excludes both the National Guard and state defense forces created
under 32 USC s.109(c).
4.2
What is the tradition or history that the new militias are
following in embracing the term "unorganized militia"?
4.3
What's the current federal law?
4.4
Article 1, Section 10 of the Constitution states: "No state,
shall without the consent of Congress...keep Troops...in time of
Peace." Are the militia "troops?" Are state
defense forces part of the militia or are they state
"troops" to which Congress has by s.109(c) consented?
How can state definitions of those eligible/subject to militia
duty be sometimes wider than the federal definition?
4.5
Could new militia groups join the state defense forces as units?
4.6 I
suggest you read the United States Code, that provides for the
"unorganized" militia, which includes "every
able-bodied person between 17 and 45 years of age."
Unorganized by the government, but it does not say we can't
organize ourselves. It's still on the books, so it's still legal
for us to organize.
4.7 Do
all states currently have militia laws?
4.8
Excerpts from a typical state militia law - New Hampshire.
4.9
Under what circumstances can the state militia be called out?
4.10
Who at the state level can call out the state militia?
4.11
In what way are new militias responsible to elected civilian
authority?
4.12
Is a valid test of whether an organization is a true militia and
not just a "bunch of guys and gals with guns" the fact
that they recognize the authority of their governor to call them
up for training or in case of an emergency? And if they recognize
the authority of the governor to call them up, do they also
recognize the authority of the President to call them up in case
of "unlawful obstructions, combinations, or assemblages, or
rebellion against the authority of the United States..."?
4.13
The new militia groups have sworn allegiance to the federal and
state constitutions, and some, like the Texas Militia and the San
Diego Militia, were established working closely with civilian and
law enforcement authorities. This must mean something.
4.14
New militias often say that the sheriff of a county has some
special rights or privileges regarding the militia. For example:
"I am pretty sure that a [new] militia must inform the
country sheriff of their existence and that they serve the
sheriff when asked. So a [new] militia is a militia if it forms
with the knowledge of the county sheriff (highest ranking elected
law officer in the county). And has as a mission preserving the
rights of all as stated in the Constitution of the US."
4.15
How do you explain the New Hampshire law that protects their
citizen militia?
4.16
What is the militia's existence or status when not summoned by a
governor or the President? Does it somehow evaporate
conveniently?
4.17
Militia members are expected to train on their own, with their
own weapons, so they would be ready to defend against all
enemies, foreign or domestic.
4.18
The federal government does have rights to organize and equip the
militia. Because the federal government has neglected its rights
in this area regarding the "unorganized militia" does
not mean the unorganized militia all of a sudden don't exist. I
challenge the federal government to start regulating and
equipping the [new] militia.
4.19
Doesn't the state have an obligation to train the
"unorganized militia"?
4.20
It has been argued that the Ninth Amendment supports the right of
individuals to create "unorganized" militia units.
4.21
Doesn't the Tenth Amendment give individuals rights over the
militia?
4.22
The federal and state governments may control the organized
militia, but not the "unorganized militia." The
unorganized can be called up for duty, but until then what they
do is their own business.
4.23
What about the Athens, Tennessee, militia of 1946? The people of
Athens, McMinn County, Tennessee, in August, 1946 exercising
their rights as individuals, formed a militia, and overthrew a
vicious and corrupt county government.
4.24
What are the powers of the state over the creation and disbanding
of their militia units? The constitution of my state doesn't
specify any power to disband a militia unit.
4.25
But surely there is some way that we, the unorganized militia in
Michigan, can get authorization by the governor?
4.26
It is the fact that the citizenry are considered militia,
although unorganized, that gives the federal government the power
to enact the draft of individuals into the armed forces.
4.27
The Constitution has been suspended since 1933 and Americans are
living under admiralty jurisdiction. This view is sometimes
expressed by those who also support the new militia.
4.28
Violations of the Constitution are more than provocations. They
are themselves violations of law. E.g. 18 USC 241, Conspiracy to
Violate Civil Rights, or 18 USC 242, Deprivation of Civil Rights
Under Color of Law. They may also violate state criminal laws.
Since the militia is obliged to enforce constitutional laws, they
have the duty to enforce the laws being violated by such
unconstitutional action. That means militiamen may be faced with
the duty to arrest those trying to arrest them, and thus the
divide between law and anti-law poses the threat of armed
conflict.
4.29
Can a governor prevent the "unorganized militia" from
training?
5.0 This FAQ has shown that
nothing in the Constitution or state and federal law that either
authorizes or advocates the actions of the new militia.
5.1
What concerns should a member of a new militia have, even if they
live in a state without laws against unauthorized military or
paramilitary organizations?
5.2
Which states have laws regulating or prohibiting unauthorized
paramilitary organization?
5.3 Is
there a federal law against unauthorized military organization?
5.4
What are the reasons for stating that these anti-militia laws are
unconstitutional?
5.5
The laws against private armies do not apply to the new militia.
These laws came about as a result of the Ku Klux Klan's attempts
to create a "militia" (I use quotation marks because
the KKK's goal in organizing was to subvert the laws of the
United States under the Constitution, thus making it illegal) in
the aftermath of the Civil War. So, states began to outlaw
private armies. However, since the [new] militias are not private
armies, but in fact are regulated to a certain extent in that
they may be federalized, theselaws do not affect them.
5.6
Typical state law against unauthorized paramilitary activity.
5.7
Many state constitututions have 'Second Amendment' type articles
very different from the federal Constitution. Dothese state
constitutions make the state laws invalid?
5.8
Can a state prohibit unauthorized military organizations for
actions that they take on private land?
5.9 In
the 1886 case of Presser v. Illinois, 116 U.S. 615. the U.S.
Supreme Court found constitutional an Illinois law against
unauthorized military organizations and unauthorized armed
parading. In doing so, the Court discussed the First and Second
Amendments.
5.10
In the early 1980's large numbers of immigrant Vietnamese
fishermen were competing with local white Texans for the shrimp
fishery. Things got very rough and the Ku Klux Klan became
involved in acts of intimidation against the Vietnamese
fishermen. A class action suit was brought, that among other
things sought an injunction against the KKK's military
organization for violating Texas law Article 5780(6) against
unauthorized military organizations and unauthorized armed
parading. The State of Texas intervened to support the
application for the injunction, which was granted. In doing so,
the Court provided some definitions for the term "military
organization."
5.11
Are there any groups that could be charged under the state laws?
5.12
What kind of a reception are these groups likely to find from
judges if they ever get to court?
Afterword by Mark Pitcavage
Go on to
Part Three
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Part One
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