Last Updated on August 20, 2022 by Constitutional Militia
In general, “to exempt” means “[t]o privilege; to grant immunity from”.[1] More specifically here, “to exempt” means “[t]o release or deliver from some liability which others are subject to; to except or excuse from the operation of a law * * * to free from obligation * * * as, to exempt from military duty”[2]—or “[t]o relieve, excuse, or set free from a duty or service imposed upon the general class to which the individual exempted belongs; as to exempt from militia service”.[3] An exemption from some Militia service presumes that the individual to which it applies is a member of the Militia, and grants him an immunity from some duty for the performance of which he otherwise would be liable, but as a result of the exemption is then privileged not to perform. Thus, exemptions constitute a means, not for excluding people from the Militia ab initio, but for organizing and disciplining people within the Militia by assigning varying burdens of service to them. As such, exemptions must be consistent with the existence of Militia in which every eligible individual is “organized” in some way. Even those who may be granted some exemption are nonetheless required to serve, or at least are always made subject to service, in some specifically defined capacity. So, typically, exemptions are to be coupled with the performance of particular duties—such as the requirement to possess firearms and ammunition, or to serve in some noncombatant capacity; or with conditions—such as the exempted individuals’ provision of substitutes, payment of some monetary compensation, or provision of firearms to others; or with limitations—such as an exemption’s not being applicable during such “alarms” as insurrections or invasions.[4]
Footnotes:
1.) S. Johnson, Dictionary, ante note 50, in both the First (1755) and the Fourth (1773) Editions.
2.) Webster’s Revised Unabridged Dictionary, ante note 11, at 523, definition 2. Accord, N. Webster, An American Dictionary, ante note 15; The Compact Edition of the Oxford English Dictionary, ante note 11, Volume 1, at 922, definitions 4. and 4.d.; Webster’s Third New International Dictionary, ante note 330, at 795, definition 2.
3.) Black’s Law Dictionary (St. Paul, Minnesota: West Publishing Company, Revised Fourth Edition, 1968), at 681.
4.) 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 941-942.
Exemptions: A means to organize the Militia.
Service in each of “the Militia of the several States” is subject only to limited exemptions, all of which in principle must be consistent with the fundamental standards of “[a] well regulated Militia” and in application must advance “the common defence” and “the general Welfare”.[1]
Purported Militia exemptions may never be employed to create an oxymoronic “unorganized militia” composed of large numbers of individuals with no duties whatsoever, other than to do nothing almost all of the time, as is the all-too-typical statutory pattern for neglect (or, perhaps, intentional suppression) of the Militia today.[2] During the pre-constitutional era, the Colonies and then independent States enjoyed the power to grant statutory exemptions from duties in their Militia that were themselves the products of statutes. Even so, as Rhode Island’s experience illustrated, “th[e] Principle of general Utility” which legislators consulted in fashioning exemptions was always applied so as to serve the common defense, and always reserved and preserved for “the Public, in Cases of Necessity,” its “Right to claim [every man’s] personal Services” in the Militia.[3] Perhaps legislators in that era could legitimately have disregarded these purposes in fashioning exemptions for the benefit of factions and other selfish special interests. Even if so, after the Constitution was ratified in 1788 and the statutory duty of service in the Militia become constitutional in nature, the authority of both Congress and the States’ legislatures to grant exemptions became explicitly limited by the Preamble’s purpose to “provide for the common defence” and “promote the general Welfare”.[4] And that limitation was emphasized, if not extended, when the Bill of Rights was ratified in 1791, by the Second Amendment’s declaration that “[a] well regulated Militia” is “necessary to the security of a free State”.
Rhode Island’s pre-constitutional Militia organized all free males from sixteen to sixty years of age. To some of them the statutes granted various exemptions from service. In its best statement of the reasons for and substance of the basic exemptions available, in 1779 Rhode Island’s General Assembly declared that,
whereas, by the Experience of all Ages, it has been found expedient, for the better Support of Subordination and military Discipline, to form separate and distinct Corps, which shall take in the different Degrees and Orders of effective Men, so far as respect their Offices and Stations in Life; and whereas this Assembly, influenced by this Principle of general Utility, have ever exempted certain Persons from serving promiscuously in the Militia Battalions; nevertheless, as the Public, in Cases of Necessity, had and have a Right to claim their personal Services, that the same beneficial Purposes may still be effected, It is Enacted, That all Persons under the following Description be exempted from serving in the Infantry Battalions, and Companies of Artillery, viz. all Persons who have served in the Place of General Officers, Justices of the Peace, or other commissioned Officers, the Ministers or Teachers of each Church or Congregation in this State, all sworn Practitioners in the Law, Physicians, Surgeons, Apothecaries, all Persons appointed to work the Fire-Engines, one Miller to each Grist-Mill, one Ferryman to each stated Ferry, all those who have lost a right Eye, or are disabled by Lameness, all Town- Councilmen, Treasurers, Clerks and Serjeants, while serving in their respective Stations.
And be it further Enacted, That all Persons between the Ages of Sixteen and Fifty Years, exempted as aforesaid from serving in the Infantry Battalions, be formed into separate Corps, to be known and called by the Name of the Senior Class, * * * who shall at all Times be armed, accoutred and provided, * * * and subjected to the same Regulations as
* * * * *
Provided always, That this Act shall not extend * * * to any Persons who are excused from bearing Arms, by having taken the Affirmation [of conscientious objection], or produced the Certificates from the Meeting of Friends, as by Law required; neither shall the same have influence upon or prejudice any Charters already granted to Independent Companies.[1]
Footnotes:
1.) EN-539 — An ACT for the better forming, regulating and conducting the military Force of this State, AT the GENERAL ASSEMBLY of the Governor and Company of the State of Rhode-Island, and Providence-Plantations, begun and holden at South-Kingstown, within and for the State aforesaid, on the last Monday in October, One Thousand Seven Hundred and Seventy-nine, in Rhode Island Acts and Resolves, Volume 10 [12], at {32-33, 38}. Also see 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 241-242.
Virginia considered the performance of some public offices and private occupations so important to the community that she exempted from certain Militia duties the men performing those services. That exemptions from Militia service were required at all for these individuals proves that, otherwise, they would have been considered members of, and required to serve in, the Militia, to the fullest extent mandated by law, perforce simply of their being able-bodied “free male persons”. But, in these cases, exemptions made eminently good sense. For, although “a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state”,[1] it is neither the full embodiment nor the purpose of “a free state”. Neither is it capable, by itself alone, of maintaining “a free state” in operation in the normal course of human events. Civil government and essential private enterprises are necessary, too. The Militia would actually prove detrimental to the “safe defence of a free state” if its demands for manpower seriously undermined the efficacy of government or the provision of vital private services. So limitations on the Militia’s ability to impress men out of civil pursuits must be established.
In pre-constitutional Virginia, exemptions from Militia duties on the basis of public office were either complete or conditional.
From time to time, men with complete exemptions were simply not “listed” at all in the Militia:
• [1691] “Council Order the Militia Officers not to list * * * persons * * * in Commission of Peace[,] * * * Readers[,] Clerks[.]”[2]
• [1755, 1757, 1759, 1762, 1766, and 1771] “[N]othing * * * shall * * * compel any persons hereafter mentioned, to muster, that is to say, such as are members of the council, speaker of the house of Burgesses, receiver general, auditor, secretary, attorney general, clerk of the council, clerk of the secretary’s office, * * * the mayor, recorder, and Aldermen of the city of Williamsburg, and borough of Norfolk, the keeper of the public goal * * * who are all hereby exempted, from being inlisted, or any way concerned in the militia, during the time they shall continue in such station or capacity.”[3]
• [1775] “[T]he keeper of the publick jail * * * shall be exempted from * * * enlistment [in the Militia].”[4]
• [1777] “FOR forming the citizens of this commonwealth into a militia, and disciplining the same for defence thereof, Be it enacted * * * That all free male persons, hired servants, and apprentices, between the ages of sixteen and fifty years (except the governour and members of the council of state, members of the American congress, judges of the superiour courts, speakers of the two houses, treasurer, attorney general, commissioners of the navy, auditors, clerks of the council of state, of the treasury, and of the navy board, * * * postmasters, keepers of the publick jail and publick hospital, * * * and military officers or soldiers, whether of the continent or this commonwealth, all of whom are exempted from the obligations of this act) shall * * * be enrolled or formed into companies[.]”[5]
• [1784 and 1785] “[A]ll free male persons between the ages of eighteen and fifty years, except the members of the council of state, members of the American congress, judges of the superior courts, speakers of the two houses of assembly, treasurer, attorney general, auditors and their clerks, solicitor general and his clerks, clerks of the council of state and treasury, register of the land-office, his deputy and clerks, custom- house officers, all inspectors of tobacco, * * * post-masters, keepers of the public gaol and public hospital, * * * all of whom are exempted * * * , shall be enrolled or formed into companies[.]”[6]
Footnotes:
1.) Virginia Declaration of Rights (1776) art. 13.
2.) EN-1555 — May 23[, 1691], in Executive Journals of Virginia, Volume 1, at 526. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin ViCertain private occupations were considered so vital to the community, that they were granted exemptions. Ten Militia statutes—from 1691 to 1785eira, Jr., page 617.
3.) EN-1556 — CHAP. II, An Act for the better regulating and training the Militia, § IV, At a General Assembly, begun and held at the College in the City of Williamsburg, on Thursday the twenty seventh day of February, one thousand seven hundred and fifty two. And from thence continued by several prorogations, to Tuesday the fifth day of August, one thousand seven hundred and fifty five, in Laws of Virginia, Volume 6, at 531.
CHAP. III, An Act for the better regulating and disciplining the Militia, § III, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the twenty-fifth day of March, 1756, and from thence continued by several prorogations to Thursday the fourteenth of April, one thousand seven hundred and fifty-seven, in Laws of Virginia, Volume 7, at 93-94. Continued, CHAP. IV, An Act for continuing an Act, intitutled, An Act for the better regulating and disciplining the Militia, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the fourteenth day of September, 1758; and from thence continued by several prorogations to Thursday the twenty-second of February, 1759, in Laws of Virginia, Volume 7, at 274; CHAP. III, An Act for amending and further continuing the act for the better regulating and disciplining the Militia, § IX, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, on Tuesday the 26th of May, 1761, and from thence continued by several prorogations to Tuesday the 2d of November[,] 1762, in Laws of Virginia, Volume 7, at 538; CHAP. XXXI, An act to continue and amend the act for the better regulating and disciplining the militia, § X, At a General Assembly, begun and held at the Capitol in Williamsburg, on Thursday the sixth day of November, 1766, in Laws of Virginia, Volume 8, at 245; CHAP. II, An act for further continuing the act, intituled An act for the better regulating and disciplining the militia, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, the seventh day of November, one thousand seven hundred and sixty-nine, and from thence continued by several prorogations, and convened by proclamation the eleventh day of July, one thousand seven hundred and seventy-one, in Laws of Virginia, Volume 8, at 503. Also see 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 617-618.
4.) EN-1557 — CHAP. I, An ordinance for raising and embodying a sufficient force, for the defence and protection of this colony, AT a Convention of Delegates for the Counties and Corporations in the Colony of Virginia, held at Richmond town, in the county of Henrico, on Monday the seventeenth day of July, one thousand seven hundred and seventy-five, in Laws of Virginia, Volume 9, at 28. 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 618.
5.) EN-1558 — CHAP. I, An act for regulating and disciplining the Militia, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Capitol, in the City of Williamsburg, on Monday the fifth day of May, one thousand seven hundred and seventy seven, in Laws of Virginia, Volume 9, at 267-268. Also see 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 618.
6.) EN-1559 — CHAP. XXVIII, An act for amending the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, § II, AT A GENERAL ASSEMBLY Begun and held at the Public Buildings in the City of Richmond, on Monday the eighteenth day of October[,] one thousand seven hundred eighty- four, in Laws of Virginia, Volume 11, at 476-477; CHAP. I, An act to amend and reduce into one act, the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, § III, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the seventeenth day of October[,] one thousand seven hundred and eighty-five, in Laws of Virginia, Volume 12, at 10. Also see 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 618.
Exemptions, both complete and conditional, were extended to men who followed certain important private occupations, too. Complete exemptions were allowed for a number of occupations the reasons for the promotion of which are self evident:
• [1691] “Council Order the Militia Officers not to list * * * Physicians[,] Chirurgeons[,] * * * Ferrymen[.]”[1]
• [1705] “[N]othing * * * shall * * * give any power or authority to any * * * chief officer * * * to list any person that shall be * * * any minister, * * * or any * * * school-master during his being such, or any overseer that hath four or more slaves under his care, * * * or any miller who hath a mill in keeping, or any servant by importation, or any slave, but that all and every such person * * * be exempted from serving either in horse or foot.”[2]
These exemptions were narrowly drafted so as solely to benefit those whose actual occupations at the time benefitted the community— thus, a “school-master during his being such”, “any overseer that hath four or more slaves under his care”, and a “miller who hath a mill in keeping”. This specificity was, moreover, hardly accidental; for carefully confined exemptions of this type appeared again and again in subsequent statutes.
• [1723] “[N]othing * * * shall * * * cause to be listed, any minister of the church of England, or the president, masters, professors, or students, of the college of William and Mary, during the times of their being such; or any * * * overseer * * * having four or more slaves under his care; or any miller, having a mill under his charge and keeping; or the founders, keepers, or any other persons emploied in or about any iron, copper, or lead work, or any other mine, during the time of their being so emploied[.]”[3]
• [1738] “[N]othing * * * shall * * * cause to be listed, any of the ministers of the church of England, the president, masters, or professors, and students, of the college of William and Mary, during the time of their being such, any overseers residing on the plantation where the slaves under their care are worked, all millers, having the charge and keeping of any mill, nor the founders, keepers, or other persons emploied in or about any iron, copper, or lead work, or any other mine, during the time of their being so emploied; who are hereby exempted from being any ways concerned in the militia.”[4]
• [1738] “[N]o person, who shall be emploied as a sailor or seaman, on board any ship or vessel, within this colony, shall, during the time he is in actual pay, on board such ship or vessel, be compelled to serve in the militia in any county, city, or borough, where such person is an inhabitant.”[5]
• [1755, 1757, 1759, 1762, 1766, and 1771] “[N]othing * * * shall * * * compel any persons hereafter mentioned, to muster, that is to say, such as are * * * ministers of the church of England, the president, masters or professors, and students of William and Mary college, * * * any person being bona fide, an overseer over four servants or slaves, and actually residing on the plantation where they work, and receiving a share of the crop or wages, for his care and pains, in looking after such servants and slaves: Any miller having the charge and keeping of any mill, and founders, keepers, or other persons employed in or about any copper, iron or lead mine, who are all hereby exempted, from being inlisted, or any way concerned in the militia, during the time they shall continue in such station or capacity.
* * * * *
“ * * * [T]he several persons * * * exempted from mustering, (except ministers of the church of England, the president, masters or professors, and students of William and Mary college, * * * overseers and millers, and all workers in any mine whatsoever) shall provide arms for the use of the county, city or borough, wherein they * * * reside[.]”[6]
• [1775] “[A]ll clergymen and dissenting ministers, the president, professors, students, and scholars, of William and Mary college, * * * all overseers of four tithables residing on a plantation, and all millers, and persons concerned in iron works, shall be exempted from * * * enlistment [in the Militia].”[7]
But, that same year, this allowance was qualified by the restriction that “no dissenting minister, who is not duly licensed by the general court, or the society to which he belongs, shall be exempted from bearing arms in the militia of this colony”.[8]
• [1777] “FOR forming the citizens of this commonwealth into a militia, and disciplining the same for defence thereof, Be it enacted * * * , That all free male persons, hired servants, and apprentices, between the ages of sixteen and fifty years (except * * * all ministers of the gospel licensed to preach according to the rules of their sect, who shall have previously taken * * * an oath of fidelity to the commonwealth, * * * millers, except in the counties of Accomack and Northhampton, persons concerned in iron or lead works, or persons solely employed in manufacturing fire arms, * * * all of whom are exempted from the obligations of this act) shall * * * be enrolled or formed into companies[.]”[9]
• [1781] “[E]very artificer actually and necessarily employed at any iron works in this state, shall be exempted from all military duty, during the time they are so employed; and * * * waggons or other carriages with their teams and drivers, as are also actually and necessarily employed at such works, shall be exempted from all impresses for publick service during such employment[.]”[10]
That this particular statute was enacted and then twice continued in the same year not only demonstrates the practical importance the General Assembly attached to this exemption but also emphasizes that it was a special privilege, not in any sense an “inherent right”.
• [1784 and 1785] “[A]ll free male persons between the ages of eighteen and fifty years, except * * * all professors, tutors, and students at the university of William and Mary,[11] and other public seminaries of learning, all ministers of the gospel, licensed to preach according to the rules of their sect, who shall have previously taken * * * an oath of fidelity to the commonwealth, * * * millers, persons concerned at iron or lead works, or persons solely employed in repairing or manufacturing fire arms, all of whom are exempted from the obligations of this act, shall be enrolled or formed into companies[.]”[12]
Footnotes:
1.) EN-1574 — May 23[, 1691], in Executive Journals of Virginia, Volume 1, at 526. Also see 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 623.
2.) EN-1575 — CHAP. XXIV, An act for settling the Militia, AT A GENERAL ASSEMBLY, BEGUN AT THE CAPITOL, IN THE CITY OF WILLIAMSBURG, THE TWENTY-THIRD DAY OF OCTOBER, 1705, in Laws of Virginia, Volume 3, at 336. Also see 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 623-624.
3.) EN-1576 — CHAP. II, An Act for the settling and better Regulation of the Militia, § IV, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT Williamsburg, the fifth day of December, 1722, and by writ of prorogation, begun and holden on the ninth day of May, 1723, in Laws of Virginia, Volume 4, at 119. Also see 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 624.
4.) EN-1577 — CHAP. II, An Act, for the better Regulation of the Militia, § IV, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT The Capitol, in the City of Williamsburg, on the first day of August, [1735]. And from thence continued, by several prorogations, to the first day of November, 1738, in Laws of Virginia, Volume 5, at 17. Also see 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 624.
5.) EN-1578 — CHAP. XXII, An Act, to prevent the Inhabitants of the Borough of Norfolk, from being compelled to serve in the Militia of the County of Norfolk; and to exempt Sailors or Seamen, in actual pay on board any Ship or Vessel, from serving in the Militia, § VI, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT The Capitol, in the City of Williamsburg, on the first day of August, [1735]. And from thence continued, by several prorogations, to the first day of November, 1738, in Laws of Virginia, Volume 5, at 82. Also see 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 624.
6.) EN-1579 — CHAP. II, An Act for the better regulating and training the Militia, §§ IV and VI, At a General Assembly, begun and held at the College in the City of Williamsburg, on Thursday the twenty seventh day of February, one thousand seven hundred and fifty two. And from thence continued by several prorogations, to Tuesday the fifth day of August, one thousand seven hundred and fifty five, in Laws of Virginia, Volume 6, at 531, 532.
CHAP. III, An Act for the better regulating and disciplining the Militia, §§ III and V, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the twenty-fifth day of March, 1756, and from thence continued by several prorogations to Thursday the fourteenth of April, one thousand seven hundred and fifty- seven, in Laws of Virginia, Volume 7, at 93-94, 94-95. Continued, CHAP. IV, An Act for continuing an Act, intitutled, An Act for the better regulating and disciplining the Militia, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the fourteenth day of September, 1758; and from thence continued by several prorogations to Thursday the twenty-second of February, 1759, in Laws of Virginia, Volume 7, at 274; CHAP. III, An Act for amending and further continuing the act for the better regulating and disciplining the Militia, § IX, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, on Tuesday the 26th of May, 1761, and from thence continued by several prorogations to Tuesday the 2d of November[,] 1762, in Laws of Virginia, Volume 7, at 538; CHAP. XXXI, An act to continue and amend the act for the better regulating and disciplining the militia, § X, At a General Assembly, begun and held at the Capitol in Williamsburg, on Thursday the sixth day of November, 1766, in Laws of Virginia, Volume 8, at 245; CHAP. II, An act for further continuing the act, intituled An act for the better regulating and disciplining the militia, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, the seventh day of November, one thousand seven hundred and sixty-nine, and from thence continued by several prorogations, and convened by proclamation the eleventh day of July, one thousand seven hundred and seventy-one, in Laws of Virginia, Volume 8, at 503. Also see 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 624-625.
7.) EN-1580 — CHAP. I, An ordinance for raising and embodying a sufficient force, for the defence and protection of this colony, AT a Convention of Delegates for the Counties and Corporations in the Colony of Virginia, held at Richmond town, in the county of Henrico, on Monday the seventeenth day of July, one thousand seven hundred and seventy-five, in Laws of Virginia, Volume 9, at 28. Also see 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 624-625.
8.) EN-1581 — CHAP. I, An Ordinance for raising an additional number of forces for the defence and protection of this colony, and for other purposes therein mentioned, At a Convention of Delegates held at the town of Richmond, in the colony of Virginia, on Friday the first of December, one thousand seven hundred and seventy-five, in Laws of Virginia, Volume 9, at 89. Also see 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 625.
9.) EN-1582 — CHAP. I, An act for regulating and disciplining the Militia, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Capitol, in the City of Williamsburg, on Monday the fifth day of May, one thousand seven hundred and seventy seven, in Laws of Virginia, Volume 9, at 267-268. Also see 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 625.
10.) EN-1583 — CHAP. IV, An act to exempt artificers employed at iron works from militia duty, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Thursday the first day of March, one thousand seven hundred and eighty-one, in Laws of Virginia, Volume 10, at 397. Continued, CHAP. XII, An act for continuing an act entitled An act to exempt artificers employed at iron works from militia duty, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Monday the seventh day of May, one thousand seven hundred and eighty-one, in Laws of Virginia, Volume 10, at 425; CHAP. III, An act for farther continuing an act entitled an act to exempt artificers employed at iron works from militia duty, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Monday the fifth day of November, one thousand seven hundred and eighty-one, in Laws of Virginia, Volume 10, at 444. Also see 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 625.
11.) The Act of 1785 deleted “students”.
12.) EN-1585 — CHAP. XXVIII, An act for amending the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, § II, AT A GENERAL ASSEMBLY Begun and held at the Public Buildings in the City of Richmond, on Monday the eighteenth day of October[,] one thousand seven hundred eighty- four, in Laws of Virginia, Volume 11, at 476-477; CHAP. I, An act to amend and reduce into one act, the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, § III, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the seventeenth day of October[,] one thousand seven hundred and eighty-five, in Laws of Virginia, Volume 12, at 10. Also see 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 625-626.
Because of the principles of near-universal and compulsory membership, no eligible individual may claim an inherent (or unalienable) “right” to any exemption from duty in the Militia. Within constitutional boundaries, exemptions are matters solely of legislative discretion to define, grant, expand, contract, withdraw, limit, condition, or withhold entirely on such terms as policymakers may deem expedient. Therefore, exemptions must always appear in some statute, either explicitly or by necessary implication. Of course, once granted, an exemption may be claimed as a statutory right, privilege, or immunity. But, arising out of statutes alone, exemptions are always subject to change as circumstances demand. No one can claim a permanently “vested” right, privilege, or immunity in any statutory exemption (other than while the statute remains in force). Furthermore, because “the Militia of the several States” are not private organizations or in any way the products of “contracts” among their members or between a State’s government and those members, a State’s legislature is not prohibited by the constitutional constraint that “[n]o State shall * * * pass any * * * Law impairing the Obligation of Contracts”[1] from rearranging individuals’ terms and conditions of Militia service, as embodied in exemptions.[2]
Footnotes:
1.) U.S. Const. art. I, § 10, cl. 1.
2.) 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 242-243.
Exemption from any Militia duty usually required prior governmental approval, and in any other event demanded a showing of good cause on the part of the individual claiming it. As a statute from 1677 declared,
“noe person or persons within this Collony from the age of sixteen yeares unto the age of sixty yeares, shall be released from traininge or other duties in millitary affaires, exceptinge only the civill officers in this Collony, or such whose employments render them excusable by law, unless he or they doe render or give * * * a good and full satisfactory reason for their neglect”.[1]
The basic exemptions were gender, age, physical disability, engagement in a critical public office or private occupation, conscientious objection, provision of a substitute, and payment of fines. Interestingly, conviction for some ordinary crime for which the perpetrator had completed his sentence and returned to society was never mentioned as a basis for exemption, exclusion, or other disqualification from service in Rhode Island’s Militia—and, as a consequence, from personal possession of the firearms, ammunition, and accoutrements required for such service, either.
Footnotes:
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1.) EN-540 — At the Generall Assembly and Election held in his Majesty’s name, May the 2d, 1677, at Newport, in Rhode Island Records, Volume 2, at 570. Also see 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 242.
Any and every exemption from Militia service depended upon a “Principle of general Utility”, not an inherent individual right—and therefore was a matter of legislative discretion to grant or withhold. Moreover, because “the Public, in Cases of Necessity,” at all times retained a “Right to claim [every man’s] personal Services”—and therefore every man had a continuing duty to provide those “Services”if and when needed—even those to whom some exemption might be granted were nonetheless required to serve, or were at least always subject to service, in some capacity.[5]
Unlike exemptions relating to public office, the validity of which in any particular case was the plainest matter of public record, exemptions based upon private occupations had to be strictly policed in order to ferret out and eliminate unqualified or even fraudulent claimants. Thus the specificity in the statutes: “persons emploied in or about any iron, copper, or lead work, or any other mine, during the time of their being so employed” (1738); “during the time [a sailor] is in actual pay, on board [a] ship or vessel” (1738); “no dissenting minister, who is not duly licensed by the general court, or the society to which he belongs” (1775); “every artificer actually and necessarily employed at any iron works” (1781); “every branch pilot * * * during the time he shall act as a pilot” (1783 and 1786); and “persons solely employed in manufacturing fire arms” (1777) or “in repairing or manufacturing firearms” (1784 and 1785).[6]
1.) U.S. Const., preamble.
2.) See, e.g., 10 U.S.C. § 311(b)(2); General Laws of Rhode Island §§ 30-1-4(4) and 30-1-5; Code of Virginia §§ 44-1, 44-4, 44-75.1(A), and 44-88.
3.) EN-1973 — An ACT for the better forming, regulating and conducting the military Force of this State, AT the GENERAL ASSEMBLY of the Governor and Company of the State of Rhode-Island, and Providence-Plantations, begun and holden at South-Kingstown, within and for the State aforesaid, on the last Monday in October, One Thousand Seven Hundred and Seventy-nine, in Rhode Island Acts and Resolves, Volume 10 [12], at {32}.
4.) See generally William W. Crosskey, Politics and the Constitution in the History of the United States (Chicago, Illinois: The University of Chicago Press, 1953), Volume 1, at 363-379.
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 242.
6.) Id. at page 626.
