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How are Militia Created?

"Militia" were not in any way, shape, or form mere private associations which individuals cobbled together and then “regulated” on their own, independent of government.

Last Updated on September 20, 2021 by Constitutional Militia

How are Militia Created?

The original Constitution did not create the Militia. Neither did it empower either the General Government or the States to create any ersatz “militia” from scratch, according to some pattern unknown to American history. Instead, the Constitution adopted and incorporated as permanent parts of its federal system “the Militia of the several States”,[1] just as they existed in 1788 and had existed for decade upon decade—settled and regulated pursuant to statute—before anyone even imagined anything like the Constitution, the Articles of Confederation, or the Declaration of Independence. The Militia thus became (and remain) constitutional entities in their own right, even more than the States or the three branches of the General Government—which should hardly be surprising, inasmuch as the Militia consist of almost the entirety of WE THE PEOPLE themselves, whereas the General Government and the States are merely THE PEOPLE’S creations, representatives, and ultimately servants. Indeed, because of their composition and prior existences, the Militia’s constitutional pedigree was obviously superior to that of the General Government, which WE THE PEOPLE created from nothing, and not inferior even to that of the States, because the Militia existed as parts of all but one of the Colonies’ governments long before the States came into existence as political establishments independent of Great Britain. Under the original Constitution, therefore, Congress was as devoid of power to dissolve the Militia, to change their character, to alter their composition, to substitute different entities in their places, or to create new institutions to compete with them, as it was to take any such actions with respect to the States. And even in the face of a purported constitutional Amendment to such effect, the Militia will retain that status, as to both Congress and the States—because in the final analysis the Militia arise out of WE THE PEOPLE’S authority under the Declaration of Independence, which itself derives from “the Laws of Nature and of Nature’s God”, not the positive laws of the General Government or the States, and therefore which no mere Amendment of the Constitution or any State’s law can negatively affect.[2]

In Rhode Island, as in all the other Colonies (and later, independent States), the Militia were always integral parts of the communities’ governmental structures.

The Militia were the institutions in and through the operation of which most Rhode Islanders, as well as the citizens of other Colonies and then independent States, developed “an acquaintance with military discipline”[1] through their own personal service. Such establishments—a refusal to serve in which in times of extreme public danger could be tantamount to treason,[2] and thereby made the basis for reducing an individual from a citizen to an alien—were certainly not in any sense private organizations, or organizations with which some individuals might simply refuse to affiliate, or the authority of which they might refuse to acknowledge, for reasons sufficient unto themselves alone. Rather, from the beginning (as Rhode Island’s Charter evidences), all of her Militia units were raised, organized, trained, and operated exclusively under governmental auspices, authorization, supervision, direction, and control. Moreover, they were not simply the products of governmental action—as might be the behavior of private parties subject to governmental regulations, yet for all that still remaining private—but were actually institutions of government, through and through. And, even more than that, institutions of self-government.[3]

RHODE ISLAND’S CHARTER

In the Colony’s first “constitution”, the Charter of 1663, King Charles II

G[a]ve and Grant[ed] unto the * * * Governour and Company [of the Colony] * * * THAT it shall and may be Lawful to and for the said Governour * * * to Nominate, Appoint & Constitute such and so many Commanders, Governours, and Millitary Officers as to them shall seem Requisite for the Leading, Conducting and Training up the Inhabitants of said Plantations in Martial Affairs; & for the Defence and Safeguard of the said Plantations: AND that it shall and may be Lawful, to and for all and every such Commander, Governour and Millitary Officers * * * and Major part of the Freemen of the said Company * * * To Assemble, Exercise in Arms, Martial Array, and put in Warlike Posture the Inhabitants of said Colony for their special Defence and Safety; AND to Lead and Conduct the said Inhabitants, and to Encounter, Expulse, Expel and Resist by force of Arms, as well by Sea as by Land; and also to Kill, Slay and Destroy by all fitting ways, Enterprizes and means whatsoever, all and every such Person and Persons, as shall at any time hereafter Attempt or Enterprize the Destruction, Invasion, Detriment or Annoyance of the said Inhabitants or Plantations * * * .[4]

Footnotes:

1.) EN-32 — An Act to incorporate the Bristol Grenadiers, 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 Ninety-nine, in Rhode Island Acts and Resolves, Volume 18 [20], at {23}.

2.) Compare EN-34 — An ACT for the confiscating the Estates of certain Persons therein described, 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 {24-25} with U.S. Const. art. III, § 3, cl. 1: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

3.) Id.

4.) EN-28 — THE CHARTER Granted by His MAJESTY King CHARLES The SECOND TO THE COLONY OF Rhode-Island, AND Providence-Plantations, In AMERICA, 8 July 1663, in Public Laws of Rhode Island, 1719, at 5. Also in Public Laws of Rhode Island, 1744, at 10-13 (separately paginated).

As was typical in other Colonies too, Rhode Island’s Colonial Governors were the local commanders in chief of her Militia—in keeping with their positions as the chief executive appointees of the King, whose “undoubted right” under British law was “the sole supreme government and command of the militia, within all his majesty’s realms and dominions”.[1] This, however, did not subject the Militia to some “Leader Principle” of a traditionally monarchical, let alone a modern dictatorial, cast. To the contrary: From the very beginning in the late 1600s, the rule was that “there be power by the Charter with the Generall Assembly, or in the intervalls of the Generall Assemblys, then with the Governor and Counsell, * * * in extraordinary cases to take care of and order the malitia * * * for defence and safetye of the whole Collony”[2]—so that the Governors were empowered to act on their own recognizance only “when the Generall Assembly shall not be sitting, to constitute Commanders and military officers, for settling, conducting, and training up the inhabitants in martial affairs, * * * and to exercise and put in warlike posture, lead and conduct the inhabitants for the defence and safety of the Plantations”.[3] And throughout the pre-constitutional period, the General Assembly did not simply delegate sweeping authority to the Governor, or to some other high-ranking Militia officer (such as an Adjutant General), to determine whether, when, and how the Militia should be organized, armed, and disciplined.[4]

Footnotes:

1.) Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 262-263.

2.) EN-35 — Acts and Orders of the Generall Assembly, sitting at Newport, May the 3, 1665, in Rhode Island Records, Volume 2, at 116-117.

3.) EN-36 — Attorney General’s Opinion upon the Address from Rhode Island, of August 2, 1692, in Rhode Island Records, Volume 3, at 293. Accord, Order of Council upon the Address from Rhode Island, concerning the Militia, 2 August 1694, in Rhode Island Records, Volume 3, at 296-297.

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 99-100.

As  detailed further on in this website, through numerous, comprehensive statutes Rhode Island’s (and Virginia’s) legislators themselves first “settled the Militia”—for example, by designating which Towns should raise what were called “train’d Band[s] of Foot Soldiers” and “Troop[s] of Horse”. Then they “regulated the Militia”—for example, by specifying what equipment Militiamen should procure; how individuals not called to train or otherwise serve on a regular basis in the “Band[s]” and “Troops” should participate in the Militia; who among otherwise eligible residents might be exempted from some types of Militia service; how infractions of Militia regulations were to be punished; and so on. 

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

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 1431.

3.)  Who Regulates “A well regulated Militia”? by Dr. Edwin Vieira, Jr.

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