Militia: Permanent Constitutional Institutions

“The Militia of the several States” are foundational and permanent establishments of and within the Constitution’s federal system, they cannot be disestablished by Congress or the States.

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Last Updated on March 8, 2023 by Constitutional Militia

Militia: Permanent Constitutional and State Institutions

The Constitution recognizes “the Militia of the several States”—the “well regulated Militia” referred to in the Second Amendment as pre-existing and permanent institutions with perpetual functions and purpose. Congress has no authority whatsoever to disestablish the Militia, “unorganize” the Militia, or nationalize the Militia by creating some ersatz “Militia” like the National Guard.

Militia: Permanent constitutional institutions that cannot be disestablished by Congress or the States.

“The Militia of the several States” are foundational and permanent establishments of and within the Constitution’s federal system, whereas the existence of any of the others is entirely contingent upon circumstances and the actions of Congress and the States in response thereto. Even if the various “Armies”, “Navy”, and “Troops, or Ships of War” that the Constitution mentions never came into existence, the Militia would always subsist as a matter of law. True enough, if “necessary and proper” to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty”,[1] Congress would be bound in duty “[t]o raise and support Armies”,[2] “[t]o provide and maintain a Navy”,[3] and to give its “Consent” for the States to “keep Troops, or Ships of War in time of Peace”.[4] But otherwise not. Conversely, the Militia are not the subjects of a Congressional power and duty to create—and therefore can never be the potential victims of any rightful Congressional neglect, failure, or refusal to exercise such a power and fulfill such a duty—because, by recognizing the Militia as preëxistent, the Constitution denies Congress any discretion in the premises. Congress can no more refuse to recognize the existence of “the Militia of the several States” than it can refuse to recognize the existence of the States themselves.[5]

As a matter of constitutional definition derived from the pre-constitutional Militia Acts, “the Militia of the several States” must enroll every able-bodied adult citizen among WE THE PEOPLE from sixteen to sixty years of age, with only a few permissible exemptions, and may enlist as well disabled or superannuated volunteers still capable of performing useful functions. For proper reasons, Congress (and in default of Congress, the States) may impose different organization and discipline upon, provide different training for, and assign different duties to different subsets within that group. Nonetheless, the Militia tend to near-universality, in that all able-bodied adult citizens, not legitimately exempted, must be organized, armed, disciplined, governed, and trained in some manner, and assigned some duty. Whereas “Armies”, “a Navy”, and “Troops, or Ships of War” include only those individuals whom Congress and the States for reasons of policy may designate for service. That is, the “land and naval Forces” inevitably tend to selectivity—and the greater the selectivity, the less constitutionally trustworthy such forces tend to become.[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 785.

Being identifiable with those among WE THE PEOPLE who are able to exercise “the right * * * to keep and bear Arms”, the Militia are always potentially in being as a matter of fact—even if only in the form of individuals who on their own initiatives, in keeping with their legal duty under the Constitution and their political duty under the Declaration of Independence, have provided themselves and trained with firearms and ammunition—no matter what Congress or the States may neglect, fail, or refuse to do. Whereas “Armies” need to be “raise[d] and support[ed]”, “a Navy” to be “provide[d] and maintain[ed]”, and “Troops, or Ships of War” “ke[pt]” by the affirmative actions of Congress and the States.[1]

Footnotes:

1.) See U.S. Const. art. I, § 8, cls. 12 and 13, and § 10, cl. 3.

“[T]he Militia of the several States” may be brought within the General Government’s temporary control for three reasons only: namely, “to execute the Laws of the Union, suppress Insurrections and repel Invasions”.[1] Then and only then, in that specifically delimited “Service”, are they under the President’s command,[2] and subject to rules Congress promulgates for “governing” them.[3] None of these reasons, however, can serve as an occasion or excuse for combining the Militia with “the Army and Navy of the United States” into the “large military establishments and “standing armies” that Joseph Story denounced as “facile means” for “ambitious and unprincipled rulers to subvert the government or trample upon the rights of the people”.[4]

Footnotes:

1.) U.S. Const. art. I, § 8, cl. 15.

2.) U.S. Const. art. II, § 2, cl. 1.

3.) U.S. Const. art. I, § 8, cl. 16.

4.) Commentaries on the Constitution of the United States (Boston, Massachusetts: Little, Brown, and Company, Fifth Edition, 1905), Volume 2, § 1897, at 646.

The constitutional institution for “homeland security” is not the “Army”, “Navy” nor any “Troops, or Ships of War” kept by the States, like the National Guard, or various “State Guards”—it is “the Militia of the several States”.

In direct contrast to “Armies” and “a Navy” WE THE PEOPLE recognized “the Militia of the several States” to be “necessary to the security of a free State”.[6]

1.) Compare U.S. Const. preamble with art. I, § 8, cl. 18.

2.) U.S. Const. art. I, § 8, cl. 12.

3.) U.S. Const. art. I, § 8, cl. 13.

4.) U.S. Const. art. I, § 10, cl. 3.

5.) 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 784-785 (bold face style supplied).

6.) U.S. Const. amend II.

About the Constitutional Militia

Constitutional Role of the Militia

Meaning of Words in the Constitution

Statements From the Founders

Bill of Rights

Contemporary Dictionaries

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