Last Updated on March 8, 2023 by Constitutional Militia
Militia: Permanent Constitutional and State Institutions
The Constitution recognizes “the Militia of the several States”—the “well regulated Militia” referred to in the Second Amendment as pre-existing and permanent institutions with perpetual functions and purpose. Congress has no authority whatsoever to disestablish the Militia, “unorganize” the Militia, or nationalize the Militia by creating some ersatz “Militia” like the National Guard.
Militia: Permanent constitutional institutions that cannot be disestablished by Congress or the States.
“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.
The constitutional institution for “homeland security” is not the “Army”, “Navy” nor any “Troops, or Ships of War” kept by the States, like the National Guard, or various “State Guards”—it is “the Militia of the several States”.
In direct contrast to “Armies” and “a Navy” WE THE PEOPLE recognized “the Militia of the several States” to be “necessary to the security of a free State”.