Last Updated on August 20, 2022 by Constitutional Militia
Militia Structure— 3rd Main Provision
TRAINING: Every “able-bodied” adult is required to be trained at the State level pursuant to CONSTITUTIONAL PROVISION AND STATE STATUTE
3rd Main Provision of the Militia Structure: Training.
The fourth goal in the preamble to the Constitution is to “provide for the common defence”. The only institution delegated the authority and assigned this duty are “the Militia of the several States”, which must be “organiz[ed], arm[ed], and disciplin[ed]”[1] at all times to perform their three constitutional duties, “execute the Laws of the Union, suppress Insurrections and repel Invasions”[2] primarily within the several States in which those people reside. “A well regulated Militia” is properly trained to deal specifically with the security concerns of the local community and the State as a whole, while implementing certain standards of uniformity across all Militia structures in the Union as Congress prescribes.[3]
Militia principles provide for a wide range of independence with regard to training amongst individual Militia units within each State. Individual State’s have particular concerns regarding natural disasters, border security, and other concerns specific to that State. However, there must be certain standards across all Militia structures throughout the Union. Why? When different Militia units need to cooperate, possibly across State lines,—in the event of a natural disaster for instance—they will be consistent and effective because they will have been trained “according to the discipline prescribed by Congress.”[4] We cannot have different Militia Structures using different arms, ammunition and accoutrements. In the event one Militia Company needs to be resupplied with arms and ammunition,—in a crisis situation—by another Militia Company, everyone is familiar with the equipment having already been trained in it’s use. This is what “a well regulated Militia” was as a matter of fact and law for over 150 years prior to the ratification of the Constitution and for over 100 years thereafter and would be today in a Militia properly revitalized along strict constitutional lines.
The Constitution in Article I, Section 8, Clauses 15 and 16 empowers Congress:
• [t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [and]
• [t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them 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.
Congress is empowered “[t]o provide for organizing, arming, and disciplining, the Militia” in the event Congress may need to “call[ ] forth the Militia” to “be employed in the Service of the United States”. At that point “[t]he President shall be Commander in Chief…of the Militia of the several States, when called into the actual Service of the United States….”.[1] So it is Congress’s job to provide uniformity amongst all the Militia Structures throughout every State in the Union. Circumstances could require several Militia Structures to combine their efforts and skills to perform their constitutional duties. So the Militia are under the control of the General Government only when they are “called forth” by Congress and would then be under the command of the President.[2] At all other times the Militia are outside the jurisdiction of the General Government performing their Militia service in the States where they reside.
Footnotes:
1.) U.S. Const. art. II, § 2, cl. 1.
2.) Id.
The Militia statutes evidence that extensive training of the Militia had often been required during periods of heightened danger:
• [1711] The Governor and his Council determined “that it is necessary the Country be put into an imediate posture of defence by training the Militia, and that the following Scheme proposed by the Governor for the more effectual prevention of the Enemy’s attempts be put in execution Vizt
“That a General Muster of the Militia of each County be forthwith appointed and an exact account taken how they are armed & provided with ammunition.
“That the Militia of each County be divided into three parts * ** , and that each of the said Divisions do meet and exercise once a Week[.]”[1]
• [1712] Fearing an attack of the Tuscaruros, the Governor and Council “[o]rdered that for preventing any sudden attempts of the said Indians, at least a Troop or Company of the Militia in each of the Frontier Countys be drawn together and exercised once a Week[.][2]
Footnotes:
1.) EN-1461 — At a Council held at the Capitol the Sixteenth day of August 1711, in Executive Journals of Virginia, Volume 3, at 282. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 562.
2.) EN-1462 — At a Council held at the Capitol the first day of April 1712, in Executive Journals of Virginia, Volume 3, at 303. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 562.
Being prepared for immediate deployment according to law had been required of Militiamen on numerous occasions:
• [1709] Concerned with a possible attack by French privateers, the Governor and Council “[o]rdered that the Commanders in Cheif of the Militia * * * forthwith appoint Masters of the Militia * * * for training & exerciseing the Soldiers and that they take particular Care that the said Soldiers be provided with arms and ammunition according to Law & have their arms constantly well fixed & themselves in a readiness to draw together on an hours warning, hereby strictly chargeing all * * * Officers to take particular notice of any person who on this Occasion shall prove deficient in their duty that they may be punished according to Law And * * * that the Commanding Officers [o]f the Militia in * * * [certain] Countys * * * appoint fitt persons to be Lookouts * * * and take care that they diligently attend that Service[.]”[1]
• [1736] Anticipating an attack by the Spanish, the Governor and Council “[o]rdered that the * * * Chief Commanding Officer of the Millitia in the Several Countys do forthwith give directions to the Officers of the Several Troops and Companys * * * to Examine how the said Troops and Companys are Armed and provided with ammunition and to Require every person oblig’d to serve in the Millitia to furnish himself with such Arms and Ammunition as the Law Enjoyns and also to be in a readiness upon the first Notice of an Invasion to parade to a Convenient place in each County * * * thence to March where the appearance of danger shall require[.][2]
• [1743] Concerned with maintaining “the best posture of Defence upon the * * * uncertain State of Public Affairs”, the Governor’s Council advised “that all Commanding Officers in their several respective Counties be advertiz’d to keep themselves prepar’d & in readiness against any Attempt that may be made upon this Colony from any Quarters whatsoever & to see that the Militia be kept under good Order & Discipline & that they be provided with Arms & Ammunition as the Law directs[.][3]
• [1745] Apprised of a possible attack by the French, the Governor “acquainted [his Council] that he sent the necessary Orders to the Commanding Officers of the lower Counties to have the Militia in Readiness and to keep a constant diligent Look Out[.]”[4]
Footnotes:
1.) EN-1463 — At a Council held at the Capitol the 10thday of February 1709 [1709/10], in Executive Journals of Virginia, Volume 3, at 206. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 562.
2.) EN-1464 — At a Council held at the Capitol the 18th day of March 1736, in Executive Journals of Virginia, Volume 4, at 389. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 562.
3.) EN-1465 — At a Council held October 31st 1743, in Executive Journals of Virginia, Volume 5, at 134. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 563.
4.) EN-1466 — At a Council held June 12. 1745, in Executive Journals of Virginia, Volume 5, at 178-179. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 563.
Virginia never established a so-called “select militia”—that is, a group of individuals, far less in number than all of the eligible men within the jurisdiction, who were singled out to constitute “the militia”, while everyone else remained “unorganized”. The most famous of the special Militia units was “the Minutemen”. The purpose of this establishment was eminently practical:
• [1775] “[I]t is judged necessary, for the better protection of the country in times of imminent danger, that certain portions of the militia throughout the whole colony should be regularly enlisted, under the denomination of minute-men, and more strictly trained to proper discipline than hath been hitherto customary, and, to this end, * * * the whole colony should be divided into proper and convenient districts[ with each such district to be composed of two or more specified counties, cities, and the borough of Norfolk.]”[1]
The Minutemen were part and parcel of the Militia because they were constituted from “certain portions of the militia throughout the colony”. And having come from within the main body of the Militia, to that main body did the Minutemen return:
• [1775] “And as well for the ease of the minute-men, as that they may be returned in regular rotation to the bodies of their respective militias, Be it farther ordained, That after serving twelve months sixteen minute-men shall be discharged from each company * * * , and the like number at the end of every year, beginning with those who stand first on the roll, and who were first enlisted[.]”[2]
• [1776] “[F]or as much as the minute company in the city of Williamsburg, by the frequent enlistments of the privates into the regular service, is reduced to so small a number that the same cannot be again completed: Be it therefore ordained * * * , That the remaining minute-men in the said city shall be discharged, and from that service return to be enlisted with the militia thereof.”[3]
• [1776] “[W]hereas the minute companies formerly raised in this country are already greatly reduced by enlistments into the regular service, and are likely to be more so by future enlistments, so that there remains little prospect of their answering the purposes of their institution, and moreover it will tend to weaken the militia of this commonwealth, and may create discontents, if such broken companies of minute-men continue exempt from militia duty, * * * all the minute battalions, companies, and parts of companies, throughout this state shall be totally dissolved and discharged, and the said minute-men shall thereafter be considered as militia, and be subject to all such rules and regulations * * * established for the better training and disciplining the militia; and the captains of each minute company shall * * * receive of each man in their respective companies all such arms and accoutrements as have been provided at the publick expense[.]”[4]
Footnotes:
1.) EN-1449 — CHAP. I, An ordinance for raising and embodying a sufficient force, for the defence and protection of this colony, AT a Convention of Delegates for the Counties and Corporations in the Colony of Virginia, held at Richmond town, in the county of Henrico, on Monday the seventeenth day of July, one thousand seven hundred and seventy-five, in Laws of Virginia, Volume 9, at 16. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 559.
2.) EN-1450 — CHAP. I, An ordinance for raising and embodying a sufficient force, for the defence and protection of this colony, AT a Convention of Delegates for the Counties and Corporations in the Colony of Virginia, held at Richmond town, in the county of Henrico, on Monday the seventeenth day of July, one thousand seven hundred and seventy-five, in Laws of Virginia, Volume 9, at 22-23. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 559.
3.) EN-1451 — CHAP. XII, An ordinance for amending an ordinance for raising and embodying a sufficient force for the defence and protection of this colony, and for other purposes therein mentioned, 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 140. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 559.
4.) EN-1452 — CHAP. XIII, An Act for making a farther provision for the internal security and defence of this country, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Capitol in the City of Williamsburg, on Monday the seventh day of October, one thousand seven hundred and seventy six, in Laws of Virginia, Volume 9, at 198. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 559-560.
Another special category of Militiamen which saw significant service was “the Rangers”. In essence, Rangers were peripatetic scouts—the verb “to range” means “[t]o rove over or through” and “[t]o rove at large; to wander without restraint or direction; to roam”[1]—who adopted and perfected the stealthy, slashing style of warfare that subsequently became commonplace among guerrilleros, irregulars, and partisans.[2] Necessarily, they were organized and operated on a Local basis, because most “ranging” took place across Virginia’s so-called “frontier counties”:
• [1711] “[T]he commander in chief * * * is impowered * * * to constitute and appoint * * * lieutenants or commanders of the rangers for the * * * frontiers; each of which * * * shall choose out and list * * * able bodyed men, with horses and accoutrements, arms and ammunition, residing as near as conveniently may be, to that frontier station for which he shall be lieutenant of the rangers, to serve under him as their commander. But if such lieutenant cannot find a sufficient number of able bodyed men, furnished and provided * * * , to serve voluntarily under him, * * * it shall * * * be lawfull for the commander in chief of the militia in the same county * * * to order and impress out of the militia of that county, so many able bodyed men, furnished * * * , residing next to that frontier station, as shall make up the number [required.]”[3]
• [1711 and 1712] “For the better protection of the Inhabitants of this Colony against the Incursions of Indians” the Governor and his Council “Ordered that ten men & an Officer out of each of the Frontier Countys be appointed to Range three days in a Week above the Inhabitants, and that the said party be from time to time relieved by a like number, with power to the Commanding Officers of the Militia * * * to augment the number of the said Rangers, as the cause of danger shall require.”[4]
• [1713] The Governor and Council decided “that twenty five men of the Militia of each of * * * [certain] Countys be ordered out to range four days in a Week, and so reliev’d from time to time by detachments of the like number, during the present danger”.[5]
• [1713] “The Governor * * * upon divers late Alarms on the Frontiers * * * Ordered fifty men of the Militia of Surry, and the like number of the Militia of Prince George to range out in the woods for the space of six days, * * * and that in case these Detachments should discover any thing * * * , the said detachments be weekly relieved by others of the like number[.]”[6]
• [1755] “That * * * a sum of money not exceeding two thousand pounds * * * be laid out for and in the raising and maintaining three compa[n]ies of men * * * to be employed as rangers, for the protection of the subjects in the frontiers of this colony * * * . And in case the * * * men, cannot be raised, by such as will voluntarily enlist * * * , it shall * * * be lawful for the * * * chief officer of the militia of each of * * * [certain] counties * * * to draft out of the militia * * * such and so many young men * * * who have not wives or children, as will make up the * * * number, to be employed in the said service.”[7]
• [1787] “[T]he governor * * * shall be empowered to order out into actual service from time to time, so many scouts and rangers in any of the counties on the western frontier * * * , the expence whereof shall be defrayed out of the funds provided * * * for the support of government.”[8]
Footnotes:
1.) Webster’s Revised Unabridged Dictionary, ante note 11, at 1188, definitions 5 (transitive verb) and 1 (intransitive verb). Accord, Webster’s Third New International Dictionary, ante note 330, at 1880, definition 2a; Webster’s New International Dictionary, ante note 330, at 2060, definition 4.
2.) See Thomas Church, The Entertaining History of King Philip’s War, Which Began in the Month of June, 1675, As Also of Expeditions More Lately Made Against the Common Enemy, and Indian Rebels, in the Eastern Parts of New England: With Some Account of the Divine Providence Towards Col. Benjamin Church (Newport, Rhode Island: Solomon Southwick, 1772). Originally published in 1716, Church’s History described the Ranger tactics Americans early developed and employed in their frontier wars. Probably the most famous of American Rangers, Robert Rogers, recounted his own later experiences in irregular warfare in the Journals of Major Robert Rogers: Containing An Account of the several Excursions he made under the Generals who commanded upon the Continent of North America, during the late War (London, England: J. Millan, 1765). Rogers set down his classic “Rules for Ranging” in 1757. See, e.g., Jennifer Quasha, Robert Rogers: Rogers’ Rangers and the French and Indian War (New York, New York: The Rosen Publishing Group, Inc., 2002), Appendix, at 90-99. For a Hollywood production, the 1940 Metro-Goldwyn-Mayer film Northwest Passage (starring Spencer Tracy and Robert Young) captures rather well the raw essence of the Rangers’ grueling style of frontier warfare. Unfortunately, Rogers himself remained a Loyalist during the War of Independence. See T. Allen, Tories, ante note 610, at 175-177, 182.
3.) EN-1467 — CHAP. I, An Act for appointing Rangers, AT A GENERAL ASSEMBLY, BEGUN AT The Capitol, the twenty-fifth day of October, 1710; and then continued by several prorogations, to the seventh day of November, 1711, in Laws of Virginia, Volume 4, at 9-10. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 563-564.
4.) EN-1468 — At a Council held at the Capitol the 15th of October 1711, in Executive Journals of Virginia, Volume 3, at 286. Accord, At a Council held at the Capitol the tenth day of June 1712, in Executive Journals of Virginia, Volume 3, at 315; At a Council held at the Capitol the fifth day of March 1712 [1712/13], in Executive Journals of Virginia, Volume 3, at 332. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 564.
5.) EN-1469 — May the 2d 1713, in Executive Journals of Virginia, Volume 3, at 342. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 564.
6.) EN-1470 — At a Council held at Williamsburgh August the 12th 1713, in Executive Journals of Virginia, Volume 3, at 347. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 564.
7.) EN-1471 — CHAP. II, An Act to explain an act, intituled, An act for raising the sum of twenty thousand pounds, for the protection of his majesty’s subjects, against the insults and encroachments of the French; and for other purposes therein mentioned, § IX, At a General Assembly, begun and held at the College in the City of Williamsburg, on Thursday the twenty seventh day of February, one thousand seven hundred and fifty two. And from thence continued by several prorogations, to Thursday the first day of May, one thousand seven hundred and fifty five, in Laws of Virginia, Volume 6, at 465. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 564.
8.) EN-1472 — CHAP. II, An act to amend the several acts respecting the militia, § V, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the fifteenth day of October[,] one thousand seven hundred and eighty-seven, in Laws of Virginia, Volume 12, at 433. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 564.
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1.) U.S. Const. art. I, § 8, cl. 16.
2.) U.S. Const. art. I, § 8, cl. 15.
3.) Id., at 1.
4.) Id., at 1.
