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.
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
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.
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About the Author: Angry Staff Officer is an Army engineer officer who is adrift in a sea of doctrine and staff operations and uses writing as a means to retain his sanity. He also collaborates on a podcast with Adin Dobkin entitled War Stories, which examines key moments in the history of warfare.