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Militia: Legal Structure

“Militia”: Defined by Law

At the moment the Constitution was ratified, Congress, the President, and the Supreme Court existed only on the paper that created them. The Militia had been, and were then, in existence as a matter of fact and law, at all times, for over 150 years.

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Militia Defined
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Last Updated on July 11, 2022 by Constitutional Militia

“Militia”: Defined by Law

WE THE PEOPLE in 1791 did not need to consult isolated statements of various Framers and Founding Fathers in order to ascertain with exactitude the defining constitutional principles of “[a] well regulated Militia”. Neither do WE THE PEOPLE today. These were not merely theoretical “Militia”, but instead were actual institutions—the only institutions of their kind—which existed in 1788 and had existed theretofore for generations throughout America, settled and regulated pursuant to Colonial and then State statutes.

“Militia” were and remain legally defined by the statutes that addressed them in great detail for over 150 years prior to the ratification of the Constitution

Is it conceivable that WE THE PEOPLE in 1791 could have considered undefinable the very “well regulated Militia” which they explicitly identified as “necessary to the security of a free State”? Or that they would have left that phrase entirely undefined, and therefore subject to the vagaries of ever-changing definitions by Congress, the States, or the Supreme Court, as the mere ignorance, political intrigues, or even subversive designs of incompetent or malign public officials and special-interest groups might dictate? Not at all. For THE PEOPLE knew that

“[t]he very purpose of a Bill of Rights [is] to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles * * * . One’s * * * fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”[1]

It is inconceivable that what WE THE PEOPLE declared to be “necessary to the security of a free State” in the Second Amendment in 1791 was undefinable. A “well regulated Militia” is no mere philosophy debate for modern day ivory-tower intellectuals, nor a playpen of conjecture for self-styled “experts”, but a conclusion in which WE THE PEOPLE in 1788 and 1791 undoubtedly concurred. When THE PEOPLE incorporated “the Militia of the several States” into their new Constitution’s federal system, they knew full well that these were statutory institutions already in existence, separate in every State and each one the creature of its own State’s laws. When THE PEOPLE referred to “[a] well regulated Militia” in the Second Amendment, they knew exactly what the salient principles of “regulat[ion]” were, because those principles could be found, repeated again and again, in statute after statute the Colonies and then the independent States had enacted throughout the 1600s and 1700s. See for instance Rhode Island and Virginia regulating their Militia. And when THE PEOPLE authorized Congress “[t]o provide for organizing, arming, and disciplining, the Militia”,[2] they knew to the last detail what those activities entailed, because they were familiar with the “well regulated Militia” the Colonies’ and States’ statutes had produced in the past.

Militia Structures existed at all times, in war and peace, as a matter of fact and law evidenced by the countless Militia statutes that addressed them in great detail in every one of the Colonies, and then independent States from the early 1600s. “Militia” in the American legal lexicon means the entirety of the able-bodied adult population, properly organized, armed, and disciplined pursuant to statute in some effective manner at all times. This ties in directly with Congress’s constitutional power and duty “[t]o provide for organizing, arming, and disciplining, the Militia”. By incorporating “the Militia of the several States” into its federal structure, the Constitution ensures that such “Militia”—and, absent an Amendment, only such “Militia”—will always exist under its aegis. For the very good reason that, as the Second Amendment attests, such “well regulated Militia” are “necessary to the security of a free State”, and therefore the very foundation of the constitutional system.[3]

Along with the relevant statutes of the period[1] Article 13 of Virginia’s Declaration of Rights of 1776 recognized that “a well regulated militia” is “composed of the body of the people, trained to arms”.[2] In common parlance, “the body of the people” meant “[a] collective mass; a joint power” and “[t]he main part; the bulk”.[3]  The political implication being that “the body of the people” was the embodiment of constitutional democracy in its truest and best sense: incorporating and empowering the entirety of the free adult individuals from all walks of life, occupations, and economic and social classes throughout the community in service of the community’s aggregate and permanent interests.[4]

Article 13 of Virginia’s Declaration of Rights recognized that even if “the body of people” possessed “arms”—yet remained otherwise unorganized, and largely if not completely undisciplined and untrained—they would not constitute a “militia” at all, any more than contemporary Americans who happen to possess firearms constitute a “militia” merely as a consequence of such possession.

Footnotes:

1.) The pre-constitutional Militia statutes and other material to be referenced on this website are so voluminous, not every one can be cited.

2.) EN-1 — CHAP. I, A DECLARATION of RIGHTS made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them, and their posterity, as the basis and foundation of government [Unanimously adopted June 12, 1776], Article 13, At a General Convention of Delegates and Representatives, from the several counties and corporations of Virginia, held at the Capitol in the City of Williamsburg, on Monday the 6th of May, 1776, in Laws of Virginia, Volume 9, at 111.

3.) Samuel Johnson, A Dictionary of the English Language, First Edition (London, England: W. Strahan, 1755), and Fourth Edition (London, England: W. Strahan, 1773),definition 5 in both the First (1755) and the Fourth (1773) Editions, and definitions 9 in the First Edition and 8 in the Fourth Edition. (Neither edition serially numbered its pages.)

4.) On this then-contemporary understanding of “the body” made notorious in Boston in the 1770s, see, e.g., Benjamin L. Carp, Defiance of the Patriots: The Boston Tea Party & the Making of America (New Haven, Connecticut: Yale University Press, 2010), at 99; Esther Forbes, Paul Revere & The World He Lived In (Boston, Massachusetts: Houghton Mifflin Company, 1948) at 195-196.

The Constitution WE THE PEOPLE “ordain[ed] and establish[ed]”[1] was then and remains today perfectly intelligible as “law”. Because the Constitution is written out, its exact terms can be ascertained. Because the language in which it is couched, and legal principles and political history upon which it is based, are still well understood, the meaning of its words and phrases—and through them the powers it grants, the disabilities it imposes, and the rights it guarantees—can be determined with certainty sufficient for all practical purposes. To be sure, because the Constitution is neither a dictionary nor a nor a treatise on American legal and political history, the need may exist in some cases to go beyond its linguistic boundaries in order to fix in the most exact manner possible the definitions and proper applications of certain of its words and phrases. For the examples most pertinent here, the phrases “the Militia of the several States”, “organizing, arming and disciplining, the Militia”, “[a] well regulated Militia”, and “the right of the people to keep and bear Arms” the Constitution itself does not define.[2] No definitions for those phrases were needed in 1788 and 1791, though. Then (just as today), their import could have unequivocally established by reference to dozens of Militia statutes and ordinances enacted during the pre-constitutional era, leaving nothing whatsoever to guesswork.[3] Indeed, it is safe to say that between 1788 and 1791 no adult free male American of sound mind and minimal experience in society would not have known precisely what those phrases meant, not only as a matter of law but also as a matter of personal experience—for just about all of them would have once served, or were then serving, in the very “Militia” to which the Constitution referred. And because it is anything but unknowable or uncertain in these and all other particulars, the Constitution—even though it is a “statute” in the general sense of that term, being “the supreme Law of the Land” “ordain[ed] and establish[ed]” in written form by WE THE PEOPLE themselves in their capacity as sovereign legislators[4]—cannot fall afoul of the rule that “a statute which either forbids or requires the doing of an act in terms so vague that men of common understanding must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”.[5] (If the Constitution were  “so vague”, it would be no “law” at all, let alone “the supreme Law of the Land”.)

Footnotes:

1.) U.S. Const. preamble.

2.) See U.S. Const. art. II § 2, cl. 1; art. I, § 8, cl. 16; and amend II.

3.) See E. Vieira, Jr., The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States” (Front Royal, Virginia: CD-ROM edition, 2012), at 27-83.

4.) Compare U.S. Const. art. VI, cl. 2 and preamble with Black’s Law Dictionary (St. Paul Minnesota: West Publishing Company, Revised Fourth Edition, 1968), at 1581  (definition of “statute”).

5.) Connally v. General Construction Company, 269 U.S. 385, 391 (1926).

Where did WE THE PEOPLE in the late 1700s find the definitions of “the Militia of the several States”[1], “[a] well regulated Militia”[2], “the right of the people to keep and bear Arms”[3], and “organizing, arming, and disciplining, the Militia”[4] that they accepted as true and sufficient? Even before the idea of the Constitution entered anyone’s head, “the Militia of the several States” (or, earlier, the Militia of the several American Colonies) were established and maintained pursuant to statutes enacted throughout the 1600s and 1700s. In those Colonies and then all of the independent States, operations aimed at organizing, arming, and disciplining these Militia were conducted pursuant to these statutes. In those Colonies and States, the vast majority of the able-bodied adult free male inhabitants (other than conscientious objectors) personally possessed firearms, because those statutes imposed upon them a duty to keep and bear arms. And as a consequence of all this, throughout America in the pre-constitutional era existed “well regulated Militia”—the products of statutes which Americans had believed were so effective in achieving their ends that they had enacted them and reënacted them and reënacted them yet again, in form and substance, decade after decade and generation after generation.[5]

Footnotes:

1.) U.S. Const. art. II, § 2, cl. 1.

2.) U.S. Const. amend. II

3.) U.S. Const. amend. II

4.) U.S. Const. art. I, § 8, cl. 16

5.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), at 68.

The original Constitution and the Bill of Rights did not define “the Militia of the several States”, “[a] well regulated Militia” and “the right of the people to keep and bear Arms”, or what it means “[t]o provide for organizing, arming, and disciplining, the Militia”.[1] They did not have to, because their original audience, WE THE PEOPLE in 1788 and 1791, knew precisely the import of those phrases. Unfortunately, most contemporary Americans do not. And sources from which they should derive useful information are all too often peculiarly devoid of it.[2] Militia were the only institutions of their kind—then in existence in 1788 and 1791—and had been in existence for over 150 years, throughout America, settled and regulated pursuant to Colonial and then State statutes. Most contemporary Americans are completely unaware of this.

Footnotes:

1.) U.S. Constitution art. I, § 8, cl. 16.

2.) For example, in some 1,593 pages of text thickly set with footnotes, the otherwise scholarly and comprehensive The Constitution of the United States of America: Analysis and Interpretation, Senate Document No. 92-82, 92d Congress, 2d Session (Washington, D.C.: U.S. Government Printing Office, 1973) devotes only 1-1/2 pages to the Militia Clauses of the original Constitution (Article I, Section 8, Clauses 15 and 16) and but 1-1/2 pages to the Second Amendment.

Just as the noun “Legislature”[1] “was not a term of uncertain meaning when incorporated into the [original] Constitution” and “[w]hat it meant when adopted it still means for the purpose of interpretation”,[2] so too the phrases “Militia of the several States”, “organizing, arming, and disciplining, the Militia”, “[a] well regulated Militia”, and “the right of the people to keep and bear Arms” were well understood by every adult American in the late 1700s—and, no Amendment of the Constitution having supervened thereafter, have not changed in their constitutional definitions since then.

And just as “[t]he definition of ‘a state’ is found in the powers possessed by the original states which adopted the Constitution” by studying the laws that evidenced those powers,[3] so too must the definitions of all those words and phrases that relate to the Militia in the Constitution (and in the Articles of Confederation, too) be found in the pre-constitutional American Colonial and State Militia statutes, there being no other source of evidence as

scientifically ascertainable—because every statute’s every word, phrase, and mark of punctuation is reproducibly verifiable or falsifiable;

objective—because the substance of none of these statutes depends upon anyone’s personal and inevitably subjective interpretations, opinions, or recollections;

historically complete and comprehensive—because these statutes document everything that the pre-constitutional American legislatures did throughout the 1600s and 1700s, not just the limited personal experiences of a few Framers, Founding Fathers, or others around the time of the Constitution’s ratification;

unequivocal—because these statutes are consistent in content, not only across the varying political jurisdictions of the Colonies and independent States, but also over the entirety of the pre-constitutional period; and

legally dispositive—because, being the actual law, these statutes are, not only the best evidence, but even the only admissible evidence, of what the phrase “[a] well regulated Militia” means.[4]

Footnotes:

1.) U.S. Const. art. I, § 2, cl. 1; art. I, § 3, cls. 1 and 2; art. IV, § 4; art. V; and art. VI, cl. 3.

2.) Hawke v. Smith, 253 U.S. 221, 227 (1920).

3.) Coyle v. Smith, 221 U.S. 559, 566 (1911).

4.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 69-70.

At the moment the Constitution was ratified, Congress, the President, and the Supreme Court existed only on the paper that created them. The Militia had been, and were then, in existence as a matter of fact and law, at all times, for over 150 years. To presume the definition of what “[a] well regulated Militia” meant at the time they were adopted as component parts of the Constitution, would have to be determined some 200 plus years in the future by some majority “opinion” of the Supreme Court, or statute of some Congress, who were yet unknown to WE THE PEOPLE, is to reduce the People’s “supreme Law”[1] to the lowest common denominator of stupidity. It would also mean that the word “Militia” had no meaning as the Constitution was being drafted, debated in convention, and ratified. It would mean that when the Second Amendment reinforced the Militia as “necessary to the security of a free State” no one knew precisely what this “thing” was being declared “necessary to the security of a free State”. And when WE THE PEOPLE “ordain[ed] and establish[ed] this Constitution”[2] we had no idea what we were “ordain[ing] and establish[ing]” because the meaning of the words in the Constitution had yet to be determined by persons unborn. Such absurdity would attribute lunacy or fraud to the Framers and disqualify the Constitution as law in the first place. Self-styled “constitutionalists” and “champions” of the Second Amendment should pay heed to what that amendment itself declares “necessary to the security of a free State”. And they may want to do so quickly as the erection of a paramilitary police state under color of “homeland security.

Footnotes:

1.) U.S. Const. art. VI, cl2.

2.) U.S. Const. preamble.

During the entire pre-constitutional period, the common meanings of what became the constitutional phrases “Militia of the several States”,[4] “organizing, arming, and disciplining, the Militia”,[5] “[a] well regulated Militia”, and “the right of the people to keep and bear Arms”[6] were their “technical” meanings, because the “Militia” that existed in that era were not some theoretical “militia”, but instead the particular “Militia” that were formed and operated under the aegis of these statutes. The “technical” meanings of all these phrases were defined initially in the statutes; and from these “technical” meanings the common meanings derived through Americans’ actual experiences as the statutes were applied.[7]

“[W]ell regulated Militia”—were the products of statutes which Americans had believed were so effective in achieving their ends that they had enacted them and reënacted them and reënacted them yet again, in form and substance, decade after decade and generation after generation.

Terms in the original Constitution and the Bill of Rights employed in 1788 and 1791 mean today precisely what they meant then. That the Constitution “speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers”[8] applies to the specifically legal meaning its words and phrases had in that day: “The scope and effect of * * * many * * * provisions of the Constitution[ ] are best ascertained by bearing in mind what the law was before.”[9] “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted[.]”[10] “[O]ur inquiry concerns the [legal] standard prevailing at the time of the adoption of the Constitution, not a score or more years later”.[11] Moreover, “[t]he law as expounded for centuries cannot be set aside or disregarded because some of the judges”—or legislators, or factions and special-interest groups, or members of the intelligentsia—“are now of a different opinion from those who, [two] centur[ies] ago, followed it in framing our Constitution”.[12] Indeed, it is even more ridiculous to suggest that the law upon which the Constitution was based may be “reinterpreted” today than that the Constitution’s words may be.

1.) West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943).

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

3.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 50.

4.) U.S. Const. art. II, § 2, cl. 1.

5.) U.S. Const. art. I, § 8, cl. 16.

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

7.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 73.

8.) Scott v. Sandford, 60 U.S. (19 Howard) 393, 426 (1857).

9.) Ex parte Wilson, 114 U.S. 417, 422 (1885).

10.) Mattox v. United States, 156 U.S. 237, 243 (1895).

11.) United States v. Barnett, 376 U.S. 681, 693 (1964).

12.) Pollock v. Farmers’ Loan & Trust Company, 157 U.S. 429, 591 (1895) (separate opinion of Field, J.) (referring to English common law).

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Constitutional Militia are State government institutions, thoroughly civilian in character. It is by the efforts of "the Militia of the several States", that the "security of a free State" can be preserved throughout the Union.

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