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Militia: Not Part of the Regular Armed Forces of the Union or of the States

“The Militia of the several States” are foundational and permanent establishments of and within the Constitution’s federal system, whereas any “Armies”, “Navy”, and “Troops, or Ships of War” are contingent.

Constitutional Militia
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Militia and the Regular Armed Forces
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Last Updated on February 19, 2023 by Constitutional Militia

Militia: Separate and Distinct from the Regular Armed Forces of the Union or States

For good reason, the Constitution makes sharp distinctions among “the Militia of the several States”,[1] “the Army and Navy of the United States”[2]variously denoted as “Armies”,[3] “a Navy”,[4] and “the land and naval Forces” [5]and the “Troops, or Ships of War” that the States may not “keep * * * in time of Peace” “without the Consent of Congress”.[6] Americans can disregard or blur these distinctions only at their peril.

Militia: Not Parts of the Regular Armed Forces of the Union or of the States.

Explaining why “the right of the people to keep and bear Arms, shall not be infringed”, the Second Amendment took care to emphasize that “[a] well regulated Militia[ is] necessary to the security of a free State”.[7] That this is the only instance in the original Constitution and the Bill of Rights, other than in the Preamble, in which WE THE PEOPLE expressly set forth the purpose of a constitutional right, power, privilege, immunity, or disability proves how supremely important they considered—and wanted everyone else, down through the ensuing ages, to be aware of—the inextricable historical, legal, and operational relationship among “[a] well regulated Militia”, “the security of a free State”, and “the right of the people to keep and bear Arms”, as Americans understood all of those concepts when they ratified the Bill of Rights in 1791, and had understood them for generations before that.[8] Moreover, when the Second Amendment referred to “a free State” it attested to THE PEOPLE’S belief that any and every “free State” always, without exception, needs “[a] well regulated Militia” to provide true “security”. That belief long preëxisted the original Constitution, as well as the Second Amendment. For the actual “Militia of the several States” which THE PEOPLE came to incorporate as integral and permanent parts of the Constitution’s federal structure were not institutions newly invented for that purpose in 1788 or 1791. Rather, they were the very “well regulated Militia” in which THE PEOPLE and their forebears had personally participated for more than a century theretofore. The belief had prompted the action; and the action had confirmed the belief. Thus, the necessity of the Militia in America’s constitutional system is not the product of the Constitution itself or of THE PEOPLE’S desire to experiment in a novel manner in matters of “homeland security”, but instead a fundamental principle of American political philosophy, applied and proven in practice in the crucible of extensive historical experience, which subtends and supports the Constitution—upon which the Constitution depends—and without which the Constitution would be, not simply defective, but actually incapable of performing its purpose. Indeed, the Militia enjoy an extra- constitutional status, because they do not depend upon the Constitution for their definition—rather, the Constitution cannot be properly construed without importing that definition from the Militia’s pre-constitutional legal history. And the Militia enjoy even a supra-constitutional status, because (having been governmental institutions long before anyone even imagined the Constitution) they do not depend upon the Constitution for their legitimacy—rather, the legitimacy of the Constitution depended in the first instance upon the success of the Declaration of Independence, to which the Militia contributed in no small measure. For, at the minimum, “the militia played a very important role in the War of American Independence. Its political functions probably were indispensable, and as a military institution, supported by state troops, it continued to meet its traditional colonial responsibilities for local defense and for providing a general emergency reserve.”[9] Even today, the Constitution continues to depend upon the Militia, because the Constitution is the supreme law of the Union; the Union is composed of the several States; each of the States must be “a free State”; and “[a] well regulated Militia” is “necessary to the security of a free State”, and therefore to the security of all of the States, of the Union, and of the Union’s supreme law.[10]

In stark contrast to the Militia, never did WE THE PEOPLE affirm, or even suggest, that the “Armies”, “Navy”, or “Troops, or Ships of War” to which the original Constitution referred were in 1788, or might thereafter become, “necessary to the security of a free State”, or inevitably and unavoidably “necessary” for any other purpose. Or that such establishments ought to be integral and permanent parts of the federal system. This could hardly have been accidental. Beyond any possible doubt, THE PEOPLE—who had just successfully waged the War of Independence—were acutely aware of the usefulness of “Armies”, a “Navy”, and “Troops, or Ships of War” for prosecuting armed conflicts. That they did not consider and declare this usefulness indispensably “necessary” reflected their fear, quite justified by political theory as well as their own experiences, that any regular standing “Armies”, “Navy”, or “Troops, or Ships of War”—in which professional soldiers, not “the people” generally, bore “Arms”—could or would likely be inimical to Americans’ liberties. That is, not “necessary”, but actually antagonistic, “to the security of a free State”. And the more effective such forces were in purely military terms, the more dangerous they would become in political terms.[1]

Footnotes:

1.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 775-776.

This concern for “standing armies” was shared not just by every American patriot of the founding era who was conversant with pre-constitutional Anglo-American law, history, and political philosophy. As even Blackstone himself had observed:

THE military state includes the whole of the soldiery; or, such persons as are peculiarly appointed among the rest of the people, for the safeguard and defence of the realm. 

IN a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and it’s laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. The laws therefore and constitution of these kingdoms [that is, England, Scotland, and Ireland] know no such state as that of a perpetual standing soldier * * * .[1]

TO prevent the executive power from being able to oppress, * * * it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people * * * . Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, too distinct from the people.[2]

Inasmuch as “[a] well regulated Militia” can never be “distinct from the people”, because “the people” themselves comprise it, and inasmuch as “[n]othing * * * ought to be more guarded against in a free state” than standing armies that form “a distinct order of the profession of arms”, hardly surprising is the Second Amendment’s conclusion, and constitutional command, that “[a] well regulated Militia” is “necessary to the security of a free State”. The Amendment embodies a fundamental negative principle that underlays the Constitution: to wit, that

“[i]t is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses with which they are attended and the facile means which they afford to ambitious and unprincipled rulers to subvert the government or trample upon the rights of the people”.[3]

A negative principle the disregard of which, the Founders knew, is likely to be fatal to freedom—because

“the Constitution [of a free State] must either break the Army, or the Army will destroy the Constitution: for it is universally true, that where-ever the [military power] is, there is or will be the Government in a short time”.[4]

Footnotes:

1.) Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 407 (emphasis supplied).

2.) Id., Volume 1, at 413-414 (emphasis supplied).

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

4.) Anonymous [John Trenchard with Walter Moyle], AN ARGUMENT, Shewing, that a Standing Army Is inconsistent with A Free Government, and absolutely destructive to the Constitution of the English Monarchy (London, England: [no publisher identified] 1697), at 4. On Trenchard’s importance, see Introduction, The English Libertarian Heritage: From the Writings of John Trenchard and Thomas Gordon in The Independent Whig and Cato’s Letters, David L. Jacobson, Editor (Indianapolis, Indiana: The Bobbs-Merrill Company, Inc., 1965); Caroline Robbins, The Eighteenth-Century Commonwealthman: Studies in the Transmission, Development and Circumstance of English Liberal Thought from the Restoration of Charles II until the War with the Thirteen Colonies (Cambridge, Massachusetts: Harvard University Press, 1959), passim.

The Constitution carefully distinguishes and separates the permanent “Militia of the several States” from the contingent “Armies”, “Navy”, and “Troops, or Ships of War” which it permits Congress or the States to “raise and support”, “provide and maintain”, or “keep”.[1] In so doing, the Constitution plainly recognizes that the Militia hold a position of priority to those institutions, as well as a position of outright superiority to every para-military or civilian police or other “homeland-security” agency that Congress may enjoy some power to create.[2]

The Colonies’ and independent States’ Militia were always separate establishments, rather than simply units in the regular British, Colonial, or later State and Continental Armed Forces. Throughout the pre-constitutional period, some Colonial and then State statutes regulated the Colonial and State Militia without in any way affecting Colonial and State regular “Troops”; other statutes raised “Troops” without affecting the Militia; and yet other statutes both regulated the Militia and raised “Troops” without conflating the two different establishments. So, because the Constitution incorporates “the Militia of the several States” into its federal system according to principles derived from their actual existence, structure, and operation during that era, the Militia cannot be parts of the regular Armed Forces of either the several States or the United States.[3]

Footnotes:

1.) Compare and contrast U.S. Const. art. I, § 8, cls. 12 through 16, and § 10, cl. 3; and art. II, § 2, cl. 1.

2.) Compare and contrast U.S. Const. art. I, § 8, cl. 18 and amends. II and X.

3.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 780.

As to the States in particular, the Constitution clearly differentiates between regular forces—the “Troops, or Ships of War” which “[n]o State shall, without the Consent of Congress, * * * keep * * * in time of Peace”[1]—and “the Militia of the several States”, which the States and Congress must maintain perforce of and in compliance with the Constitution at all times. In this, the Constitution follows the pattern set in the Articles of Confederation, which provided that

[n]o vessels of war shall be kept up in time of peace by any state, except such number only, as shall be deemed necessary by the united states in congress assembled, for the defence of such state or its trade; nor shall any body of forces be kept up by any state, in time of peace, except such number only, as in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state; but each state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred[.][2]

As with the Constitution, the Articles secured a preferred and practically permanent position for the Militia at that time, because “the Articles of this confederation shall be inviolably observed by every state * * * ; nor shall any alteration at any time * * * be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state”.[3]

Footnotes:

1.) U.S. Const. art. I, § 10, cl. 3.

2.) Arts. of Confed’n art. VI, ¶ 4 (emphasis supplied).

3.) Arts. of Confed’n art. XIII.

Congress’s powers with respect to “the Militia” are separate and distinct from its powers that appertain to “Armies” and “a Navy”, for the self-evident reason that the “Armies” and “Navy”—or, as the Constitution elsewhere describes them, “the land and naval Forces”[1]—are “the Army and Navy of the United States”, whereas the Militia are “the Militia of the several States”.[2] In one clause, the Constitution empowers Congress “[t]o raise and support Armies”,[3] in another clause “[t]o provide and maintain a Navy”,[4] and in yet two other clauses “[t]o provide for calling forth the Militia” and “[t]o provide for organizing, arming, and disciplining, the Militia”.[5] The latter two clauses are completely independent of the former two. Similarly, in one clause the Constitution delegates to Congress the authority “[t]o make Rules for the Government and Regulation of the land and naval Forces”;[6] whereas in a separate clause it authorizes Congress “[t]o provide * * * for governing such Part of them [that is, the Militia] 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”.[7] Not only are these powers mutually independent, but also the reserved authority of the States as to “the Appointment of the Officers, and the Authority of Training the Militia” set out in the second of them finds no counterpart in the first. Because, of course, “the land and naval Forces” are “the Army and Navy of the United States”, whereas the Militia are “the Militia of the several States”.[8]

Footnotes:

1.) U.S. Const. art. I, § 8, cl. 14 and amend. V (“the land or naval forces”).

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

3.) U.S. Const. art. I, § 8, cl. 12.

4.) U.S. Const. art. I, § 8, cl. 13.

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

6.) U.S. Const. art. I, § 8, cl. 14.

7.) U.S. Const. art. I, § 8, cl. 16.

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

The President of the United States is the only constitutional officer who holds or can hold a joint command in both the Armed Forces and the Militia. In separate phrases the Constitution expressly appoints the President as “Commander in Chief” of both “the Army and Navy of the United States” at all times and “the Militia of the several States, when called into the actual Service of the United States”,[1] but only at that time. Yet his status as “Commander in Chief of the Army and Navy” is of a different order from his status as “Commander in Chief * * * of the Militia”. When the President commands the “the Army and Navy of the United States” he acts as a permanent officer of the Armed Forces, not at all of the Militia; and when he commands “the Militia of the several States” he acts as a temporary officer of the Militia, not at all of the Armed Forces. This bipartite designation would be meaninglessly redundant if the Army and Navy, on the one hand, and the Militia, on the other, were simply components of the selfsame unified establishment for National defense. But “[i]t cannot be presumed that any clause in the constitution is intended to be without effect”.[2]

Footnotes:

1.) U.S. Const. art. II, § 2, cl. 1.

2.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). See also, e.g., Myers v. United States, 272 U.S. 52, 151-152 (1926); Knowlton v. Moore, 178 U.S. 41, 87 (1900); Blake v. McClung, 172 U.S. 239, 260-261 (1898).

Other than with respect to the President as “Commander in Chief”, the States retain exclusive authority for “the Appointment of the Officers [in the Militia]”[1]—which means that no “Officers” in the regular Armed Forces of the United States, all of whom are “nominate[d], and by and with the Advice and Consent of the Senate * * * appoint[ed]”, by the President,[2] may command any portion of the Militia. Moreover, inasmuch as the Constitution expressly foresees the possibility that only a “Part of the[ Militia] * * * may be employed in the Service of the United States” at any one time,[3] even the President’s authority to command the Militia will extend only to such “Part” then “called into the actual Service of the United States”,[4] with the rest of the Militia remaining under the exclusive command of “Officers” appointed exclusively by the States.

Footnotes:

1.) U.S. Const. art. I, § 8, cl. 16. See also U.S. Const. amend. X.

2.) See U.S. Const. art. II, § 2, cl. 2.

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

4.) U.S. Const. art. II, § 2, cl. 1 (emphasis supplied). On the critical importance of the adjective “actual”, see The Word “actual”.

The Constitution commands that “[n]o State shall, without the Consent of Congress, * * * keep Troops, or Ships of War in time of Peace”.[1] Yet each of the States must maintain her Militia in being at all times, even if solely with respect to “the Appointment of the Officers, and * * * training * * * according to the discipline prescribed by Congress”.[2] The existence of “the Militia of the several States” in no way depends upon “the Consent of Congress”—that is, Congress’s political discretion—because the Constitution presumes the presence of the Militia as part of its federal structure at all times, irrespective of Congressmen’s minds on the subject. Even if Congress neglects, fails, or refuses to fulfill its constitutional duty “[t]o provide for organizing, arming, and disciplining, the Militia”,[3] the Militia nonetheless remain in being, in the persons of WE THE PEOPLE capable of exercising “the right * * * to keep and bear Arms”, who may “provide for organizing, arming, and disciplining” themselves, either through their respective State legislatures or in the final extremity on their own recognizance.

A State’s “Troops, or Ships of War”, therefore, are constitutionally distinct from her “Militia”. As well they would have to be as a practical matter. For the Constitution provides that “[n]o State shall, without the Consent of Congress, * * * engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay”.[4] But if, “without the Consent of Congress”, a State may “engage in War, [when] actually invaded, or in such imminent Danger as will not admit of delay”, to do so she would need immediately at hand “[a] well regulated Militia * * * necessary to the security of a free State”[5]—unless her enemy were sufficiently accommodating to allow her ample time to raise “Troops, or Ships of War” from scratch, in which case the “Danger” would hardly be so “imminent * * * as will not admit of delay”.[6]

Footnotes:

1.) U.S. Const. art. I, § 10, cl. 3.

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

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

4.) U.S. Const. art. I, § 10, cl. 3.

5.) U.S. Const. amend. II.

6.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 783.

The Fifth Amendment also distinguishes between “the land or naval forces”, on the one hand, and “the Militia”, on the other. The Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”.[1] Self- evidently, “the land or naval forces” mentioned here are the very same “land and naval Forces” “for the Government and Regulation of [which]” the Constitution empowers Congress “[t]o make Rules”—to wit, the “Army and Navy of the United States” to which the original Constitution referred. And “the Militia” are “the Militia of the several States” and the “well regulated Militia” to which first the original Constitution and then the Second Amendment referred. For “[w]hen the same term which has been used plainly in [a particular] * * * sense in [one clause of the Constitution] * * * is also employed [in another provision] * * * , it must be understood as retaining the sense originally given to it”.[2] Moreover, the disjunctive “or” between these entities—“in the land or naval forces, or in the Militia”—indicates that they are of constitutionally different characters, “the land or naval forces” belonging to one discreet set, “the Militia” to another.[3]

Footnotes:

1.) Emphasis supplied.

2.) See Hepburn and Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 453 (1805).

3.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 783-784.

 “[T]he Militia of the several States” are foundational and permanent establishments of and within the Constitution’s federal system, whereas the existence of any “Armies”, “Navy”, and “Troops, or Ships of War” 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.[11]

No State needs “the Consent of Congress” to maintain her own Militia. To the contrary: For public officials in any State to neglect or refuse to maintain “[a] well regulated Militia”—particularly if Congress fails, neglects, or refuses “[t]o provide for organizing, arming, and disciplining, the Militia”[12]—constitutes the most serious possible violation of their “Oath[s] or Affirmation[s], to support th[e] Constitution”,[13] because it endangers “the security of a free State”,[14] upon which all constitutional rights, powers, privileges, and immunities depend.

Contrary to the widespread misconception that the contemporary statutory National Guard is the continuation of, or (even more implausibly) the successor to, the constitutional “Militia of the several States”,[15] the National Guard is actually an adjunct or reserve component of the regular Armed Forces, and in one aspect arguably part of the “Troops” that the States may “keep * * * in time of Peace” “with[ ] the Consent of Congress”—and therefore is constitutionally disqualified from being any part of “the Militia of the several States” at all.[16] More importantly, for numerous constitutional reasons, “the Militia of the several States” are not, and can never be, any part of the National Guard or any other component of the regular Armed Forces.[17]

1.) U.S. Const. art. II, § 2, cl. 1; art. I, § 8, cls. 15 and 16; and amends. II and V.

2.) U.S. Const. art. II, § 2, cl. 1.

3.) U.S. Const. art. I, § 8, cl. 12.

4.) U.S. Const. art. I, § 8, cl. 13.

5.) U.S. Const. art. I, § 8, cl. 14 and amend. V.

6.) U.S. Const. art. I, § 10, cl. 3.

7.) The Amendment could have expressly linked the Militia with the preservation of “a Republican Form of Government”, too—for the Constitution implies no less. See also The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), at 890-893, 921-922, 1038-1040, 1301-1307, 1451-1453, and 1497-1499.

8.) The Constitution does delegate to Congress the authority “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Art. I, § 8, cl. 8. There, however, “[t]o promote the Progress of Science and useful Arts” is the power, “securing * * * the exclusive Right” the sole means by which to exercise it. No actual purpose is stated, unless it be the implicit expectation that “promot[ion of] the Progress of Science and useful Arts” will redound to society’s benefit.

9.) R. Wright, Jr., The Continental Army, ante note 396, at 183. Observe, though, how this author, who certainly should know better, refers to the Militia in the singular, rather than the constitutional plural.

10.) In response to the objection that none of the several States now fields a true Militia, one need only point to the parlous state of “constitutional law” (or even any satisfactory “rule of law”) in America to appreciate the truth of the analysis set out in the text. The Constitution having temporarily lost its “necessary” protector, of course this country is slipping into anti-constitutional chaos.

11.) The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 784.

12.) U.S. Const. art. I, § 8, cl. 16.

13.) U.S. Const. art. VI, cl. 3.

14.) U.S. Const. amend. II.

15.) See generally, e.g., Michael D. Doubler & John W. Listman, Jr., The National Guard: An Illustrated History of America’s Citizen-Soldiers (Washington, D.C.: Brassey’s, Inc., 2003). In particular, see R. Wright, Jr., The Continental Army, ante note 396, APPENDIX A, at 429-430, which links various units of the National Guard to the pre-constitutional Militia, even describing these as “U.S. Army Units Dating From the Revolution”, without apparent awareness of the constitutional impossibility of any unit in “the Militia of the several States” being in its inception or thereafter becoming part of the Army of the United States.

16.) See generally AN ACT To revise, codify, and enact into law, title 10 of the United States Code, entitled “Armed Forces”, and title 32 of the United States Code, entitled “National Guard”, Act of 10 August 1956, Pub. L. 1028, 70 Stat. 1126, printed as Title 32, United States Code, in 70A Stat. at 596-617. For an historical overview of the National Guard and various “State Guards”, “Home Guards”, and “State Defense Forces” with pretensions to be or which have been passed off as “Militia”, see Barry M. Stentiford, The American Home Guard: The State Militia in the Twentieth Century (College Station, Texas: Texas A&M University Press, 2002). Although useful in many respects, this particular study does not review the pre-constitutional history of the Militia, or come to grips with the constitutional problems the statutes from 1903 onwards raise. For example, referring to various “State Defense Forces” (which the book ambiguously treats as “militia” although many if not most of them lack the constitutional characteristics necessary for that appellation), the author opines that these forces “continue to prepare for the day when the National Guard again leaves the states for distant battlefields, while attempting to develop new reasons for existing in the event that the entire National Guard never leaves. As such, they represent the latest chapter in a long struggle over the proper role for militia in the United States.” Id. at 241. Evidently the author never considered that the Constitution has already determined “the proper role for militia in the United States”, and that therefore no “long struggle” to define that “role” was ever necessary in the past or is necessary now. So, to the extent that some “long struggle” has gone on, at least one side in that contest has been promoting unconstitutional action all along, and apparently will continue to do so until the American people finally demand that the Constitution be enforced in these particulars.

17.) Id., at 11, page 773-774.

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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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