Last Updated on October 1, 2021 by Constitutional Militia
Militia: Not the Product of “Common Law”
Contrary to a belief enjoying some unwarranted currency among naive patriots today, no pre-constitutional Militia ever derived its authority from “common law”, in the strict sense in which American legal history and the Constitution itself employ that term. (Except, of course, insofar as a statute which applied in common to all members of the community on an equal basis was thereby an example of “common law”.) As Blackstone explained, “the common law, or lex non scripta, of this kingdom [that is, England]”,
properly so called * * * is that law, by which proceedings and determinations in the king’s ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance: the manner and form of acquiring and transferring property; the solemnities and obligations of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires * * * —all these are doctrines that are not set down in any written statute or ordinance, but depend upon immemorial usage, that is upon common law, for their support.
Revealingly, Blackstone did not include within this litany any matter relating to “militia”, because English “common law”—the lex non scripta—did not extend to that subject.