Congress and “the Militia of the several States”
“the Militia of the several States” are largely outside the jurisdiction of Congress

“[T]he Militia of the several States” (or of the American Colonies before the latter declared their independence from Great Britain) preëxisted the Constitution. And during the entire pre-constitutional era, each of the Colonies and then independent States exercised exclusive jurisdiction over her own Militia and such regular armed forces as she might raise. Even the precursor to the Constitution, the Articles of Confederation, expressly mandated that “every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered” (footnote 1)—according, moreover, to each State’s own laws, because the Articles granted no powers to Congress for that purpose.”

The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 48.

Also see Militia: Immune From Contemporary “Gun Control” • Militia: A Sovereign EntityMilitiamen Firearms Kept in the Home • Constitutional “Homeland Security” Structure: “Bottom Up” • Militia: Unconstitutionally Disestablished 


Congress and “the Militia of the several States”: Congress Governs “Part” of the Militia— Otherwise The Militia are largely Outside the Jurisdiction of Congress

The Constitution empowers Congress

[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [and]

[t]o 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. (footnote 2)

Obviously, the Constitution delegates these powers to Congress for the purpose of providing the United States with the ability to rely upon uniform Militia drawn from the several States for any of the three constitutionally designated purposes. But the Constitution imposes no corresponding disabilities upon the States with respect to the subject-matters of these two powers, other than the implicit limitation always applicable to every concurrent power that the States’ regulations in those particulars may not interfere with whatever pertinent and otherwise constitutional regulations Congress may have enacted. (footnote 3) This is because, as the Constitution itself recognizes, the “Militia” to be “organiz[ed], arm[ed], and disciplin[ed]” are none other than “the Militia of the several States”, not “the Militia of the United States”—a distinction the Constitution makes exquisitely clear in defining the dual status of the President as “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”. (footnote 4) “[T]he Militia of the several States” (or of the American Colonies before the latter declared their independence from Great Britain) preëxisted the Constitution. And during the entire pre-constitutional era, each of the Colonies and then independent States exercised exclusive jurisdiction over her own Militia and such regular armed forces as she might raise. Even the precursor to the Constitution, the Articles of Confederation, expressly mandated that “every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered” (footnote 5)—according, moreover, to each State’s own laws, because the Articles granted no powers to Congress for that purpose. The Constitution nowhere explicitly withdrew authority over their Militia from the States, as it did with respect to the States’ “keep[ing] Troops, or Ships of War in time of Peace” “without the Consent of Congress”. (footnote 6) And the Constitution nowhere granted any authority to Congress to form a “Militia of the United States”, as it did with respect to “rais[ing] and support[ing] Armies” and “provid[ing] and maintain[ing] a Navy” which were to be known as “the Army and Navy of the United States”. (footnote 7) Therefore, each of the States retains the authority to “organiz[e], arm[ ], and disciplin[e]” her own Militia in order:

(i) to fill any voids in her Militia’s preparedness caused by Congress’s neglect, failure, or refusal to “organiz[e], arm[ ], and disciplin[e]” the Militia in complete readiness to be “call[ed] forth” “in the Service of the United States” for any of the three constitutionally designated purposes;

(ii) to prepare her Militia to be called forth by State herself for any of those reasons if Congress neglects, fails, or refuses to do so when such mobilization is necessary; and

(iii) to enable her Militia to provide defense and other aid to the State in situations not involving any of those three reasons, by supplementing what Congress has mandated should that State consider Congress’s action insufficient for her own purposes. (footnote 8)

 

  • Each independent State must maintain an organized, armed, and disciplined Militia for her own ‘Service’.

    Even if the purpose of having Congress “provide for organizing, arming, and disciplining, the Militia” in an uniform manner is so that they may most effectively “be employed in the Service of the United States” when called forth collectively, why should individual Militia not also be “organiz[ed], arm[ed], and disciplin[ed]” in such complementary fashion as each State might deem necessary for her own particular “Service”? In principle, perhaps, if Congress’s power “[t]o provide for organizing, arming, and disciplining, the Militia” were not directed solely to three explicit purposes of the General Government, Congress arguably could “provide” different forms of “organizing, arming, and disciplining, the Militia”, tailored to the specific needs of each State. But in practice such a program would be extraordinarily cumbersome. So why should the Constitution be tortuously misconstrued to deny the States the authority to perform a necessary task that would overtax, if not lie entirely beyond, Congress’s competence as well as its authority? No plausible construction of the Constitution could, for example, license Congress simultaneously to disallow the States from “keep[ing] Troops, or Ships of War in time of Peace”, and to preclude the States from “organizing, arming, and disciplining” their own Militia, and to license itself to neglect, fail, or refuse to “organiz[e], arm[ ], and disciplin[e]” the States’ Militia effectively. (footnote 1)

    Footnotes:

    1.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 49.

  • Congress governs only ‘Part’ of ‘the Militia of the several States’.

    The unavoidability of this conclusion appears perhaps most patently in the portion of Congress’s power that authorizes it “[t]o provide * * * for governing such Part of them [that is, the Militia] as may be employed in the Service of the United States”. If Congress may provide for governing only that “Part” of the Militia “employed in the Service of the United States”, who is to govern the remainder of the Militia at that time, and all of the Militia when no “Part of them” is so employed? The Constitution itself decrees that it cannot be Congress. Therefore it must be the States, or in the event of the States’ default “the people” themselves (footnote 1)—unless the Constitution implicitly commands the absurd result that under those circumstances the Militia (in “Part” or in whole) are not to be “govern[ed]” at all. But such a result the Constitution obviously precludes, when it “reserv[es] to the States respectively, the Appointment of the Officers [of the Militia]”, (footnote 2) thereby retaining almost all actual authority of command in the States, because the only officer of the General Government who is simultaneously an officer in any of “the Militia of the several States” is the President of the United States (and then only when the Militia are “called into the actual Service of the United States”). (footnote 3 )

    Footnotes:

    1.) See U.S. Const. amends. II and X.

    2.) U.S. Const. art. I, § 8, cl. 16.

    3.) U.S. Const. art. II, § 2, cl. 1.

The Constitution itself recognizes, the “Militia” to be “organiz[ed], arm[ed], and disciplin[ed]” are none other than “the Militia of the several States”, not “the Militia of the United States”—a distinction the Constitution makes exquisitely clear in defining the dual status of the President as “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”. (footnote 9)

If Congress may provide for governing only that “Part” of the Militia “employed in the Service of the United States”, who is to govern the remainder of the Militia at that time, and all of the Militia when no “Part of them” is so employed? The Constitution itself decrees that it cannot be Congress. Therefore it must be the States, or in the event of the States’ default “the people” themselves. (footnote 10) 

  • Footnotes

    1.) Arts. of Confed’n art. VI, ¶ 4. The typeset version of the Articles quoted appears in Documents Illustrative of the Formation of the Union of the American States, House Document No. 398, 69th Congress, 1st Session (Washington, D.C.: Government Printing Office, 1927), at 27-37.

    2.) U.S. Const. art. I, § 8, cls. 15 and 16.

    3.) See U.S. Const. art. VI, cl. 2.

    4.) See U.S. Const. art. II, § 2, cl. 1 (emphasis supplied).

    5.) Id. at 1.

    6.) U.S. Const. art. I, § 10, cl. 3.

    7.) U.S. Const. art. I, § 8, cls. 12 and 13, and art. II, § 2, cl. 1.

    8.) See U.S. Const. art. VI, cl. 2 and amend. X.

    9.) Id. at 4.

    10.) See U.S. Const. amends. II and X.