Last Updated on August 20, 2022 by Constitutional Militia
“The Militia of the several States” are foundational and permanent establishments of and within the Constitution’s federal system, whereas the existence of any of the others 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. True enough, if “necessary and proper” to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty”, Congress would be bound in duty “[t]o raise and support Armies”, “[t]o provide and maintain a Navy”, and to give its “Consent” for the States to “keep Troops, or Ships of War in time of Peace”. But otherwise not. Conversely, the Militia are not the subjects of a Congressional power and duty to create—and therefore can never be the potential victims of any rightful Congressional neglect, failure, or refusal to exercise such a power and fulfill such a duty—because, by recognizing the Militia as preëxistent, the Constitution denies Congress any discretion in the premises. Congress can no more refuse to recognize the existence of “the Militia of the several States” than it can refuse to recognize the existence of the States themselves.