This morning, the Virginia state capitol in Richmond saw dozens of armed men gathering to demonstrate their support for the Second Amendment of the US Constitution – the right to bear arms. These men were not merely bearing arms, however; they were fully accoutered in the trappings of what one would call a paramilitary group: helmets, vests, ammunition pouches, camouflage clothing, and other “tactical” necessities, the majority of which are neither tactical nor necessary. Their weapons, too, are bedecked with all sorts of accessories, and are also in the paramilitary lane. Rather than carry rifles or shotguns that one would use for hunting, they instead carry semi-automatic “military grade” weapons, to merely prove that they can.
This is not an uncommon sight in America. Nor has it ever been. Armed groups of angry men have a long and uncomfortable history in the United States. On very rare occasions, these irregulars have done some good against corrupt, power-hungry, and abusive county governments. For the most part, however, they bode no good. Armed groups of settlers often attacked peaceful Native American communities in revenge for an attack by some entirely different Native group, massacring innocents. Armed mobs of “Patriots” persecuted and tortured Loyalists during the American Revolution, using intimidation and fear rather than persuasion to quell dissent in the colonies. Armed mobs were used to keep Jim Crow alive in the south for decades, and were key to the rise of Ku Klux Klan in response to Reconstruction. They enforced lynchings, torture, rape, and terrorized African-American communities well into the 20th century.
News organizations persist in calling these contemporary groups “militias.” And surely the members of these groups enjoy the designation, for it lends them legitimacy. For in the U.S., the militia has a strict definition enshrined in law, and those laws state that the militia are controlled by state governments and Congress.
So, in short: what is the militia and who is in it? Well, it’s not that easy. It depends which state you’re in. But generally speaking, the militia code for each state agrees along a few basic premises. Since we’re talking about Virginia today, let’s take a look at Virginia’s militia code.
“The militia of the Commonwealth of Virginia shall consist of all able-bodied residents of the Commonwealth who are citizens of the United States and all other able-bodied persons resident in the Commonwealth who have declared their intention to become citizens of the United States, who are at least 16 years of age and, except as hereinafter provided, not more than 55 years of age. The militia shall be divided into three classes: the National Guard, which includes the Army National Guard and the Air National Guard; the Virginia Defense Force; and the unorganized militia.”Code of Virginia, § 44-1. Composition of militia.
This is more or less in keeping with most other states. Since the Militia Act of 1903 and the National Defense Act of 1916, the National Guard comprises the active arm of the militia. The National Guard being a dual-status entity – that is, both state and federal – many states opt to keep a state defense force, as Virginia does. This force is primarily used if the National Guard is in federal service. Lastly, there’s the unorganized militia: “The unorganized militia shall consist of all able-bodied persons as set out in § 44-1, except such as may be included in §§ 44-2 and 44-54.6 and except such as may be exempted as hereinafter provided.”
Now, one might say, “Well, aren’t most people part of the unorganized militia?” And you’d be right. But there’s a catch. A pretty big catch. Under § 44-86 of the Virginia State Code, only the governor of the state may order out the unorganized militia. In doing so, the governor will either ask for volunteers or simply draft people into service. And when called up for service, the unorganized militia then become part of the Virginia Defense Force and are “governed by the same rules and regulations and be subject to the same penalties as the National Guard.” Members of the unorganized militia who refuse to appear if drafted are subject to court martial.
What I’m getting at here is that there is no law that states that you may organize your own private militia to wield military authority at your own whim. Beginning with the original militia institutions in New England in the 17th century, military force was enshrined as a power held by the local government. Through its various changes over the centuries, this has not drastically changed. State governments hold the authority for the militia, which they may from time to time delegate down to county or municipal authorities.
Now, federal law also contains laws on the militia. Title 10 of the U.S. Code § 246 offers up the national definition of the militia, the organized – National Guard – and unorganized. However, the militia clauses in Article I of the Constitution reinforce that the authority to call up the militia resides in the body politic. In Clauses 15 and 16, it states that Congress has the authority to call up the militia to “execute the Laws of the Union, suppress Insurrections and repel Invasions.” It also states that Congress reserves to the states the authority to appoint officers and manage the organization and training of the militia. Once again, authority to use the militia is vested at the state and federal levels.
Astute persons will notice that I have said nothing about the 2nd Amendment to the Constitution here. And it’s pretty clear why: it has very little to do with the actual role of the militia. It pertains to the right to private gun ownership, which I shan’t debate here.
The bottom line is that the wannabe soldiers in Richmond today do not, in fact, constitute any authorized calling out of the unorganized militia. If anything, they are in very grave danger of having the actual and lawful militia used against them since they are engaged in acts of attempted intimidation. Indeed, those individuals from outside the state could easily be seen as something far worse. So please, when writing about or reporting on these groups, do not give them the legitimacy that they crave: they are not militia. They are armed mobs.
An addendum: just because militias are enshrined in our legal system as being the military arm of the local government does not mean that they have not been used for ill in our history. In the 17th, 18th, and 19th centuries, some actual militia forces representing their colony or state did engage in atrocities against Native Americans – the massacre at Gnaddenhutten being one of the most prominent abuses – and against both enslaved and freed African-Americans. Some of these were state-sanctioned, some were not. As we grow and evolve as a nation to better understand and live our values, these incidents in our past cannot be overlooked or ignored. Instead, they should be studied as examples of how we have erred in the past and paths to avoid for the future.
An additional addendum: in trying to find a cover photo for this piece, I typed “Virginia militia” into Google and selected “labeled for reuse.” Ironically, the only photos available were of the Virginia National Guard, the Virginia State Defense Force, or historic photos of Virginia militia units. Well played, Google. Well played.
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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.