The Militia Organization Clause

The Congress shall have Power . . . To 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. . . .

—Robert Leider & Judge Gregory E. Maggs

Introduction

The Framers had no conception of the modern armed forces, complete with large reserve forces. In their world, the militia was the nation’s reserve military force. Because of problems with the militia during and after the Revolutionary War, the Framers agreed that the militia needed to be put on a solid footing, but there were debates about whether the federal or state governments should exercise primary control. As a political compromise, the delegates split control of the militia between the national and state governments. This compromise created political accountability problems that over the ensuing century would leave much of the militia untrained and disorganized.

Beginning in the twentieth century, the federal government largely took over the militia using its powers under the Armies Clause. (See Essay No. 59.) Congress circumvented state authority over the militia and expanded the federal government’s limited deployment power. The complete federal takeover of the militia is “prickly with doubt.”¹ Yet the political compromises struck at the Constitutional Convention created such systemic dysfunction in the militia system that the nationalization of all military forces has become well-entrenched.

History Before 1787

The English militia tradition can be traced back to the Anglo-Saxon fyrd.² The institution survived the Norman Conquest of England in the eleventh century, and a series of laws were enacted to regulate the militia. The Assize of Arms (1181) and the Statute of Winchester (1285) required all freemen to provide themselves with arms and to obey the call for service.³ The term “militia” came into use during the sixteenth century. During this time, the militia was organized nationally, but principal executive control lay with local county officers.⁴ The militia was thus “[a] national force, organized by counties.”⁵

When the British settled in North America, they brought the militia system with them.⁶ In the early days, the British had no significant troop presence in America.⁷ At the time, the colonists lacked the manpower and money for professional soldiers.⁸ To provide for security, the colonies (except in Quaker Pennsylvania) organized a universal militia system.⁹ All able-bodied men were required to provide themselves with arms, and they drilled routinely.¹⁰

However, a well-disciplined universal militia system would not last long. As the seventeenth century ended, many colonies faced less danger from Indians and competing European powers.¹¹ Consequently, more people were exempted from militia service.¹² Over time, training occurred less frequently, if at all.¹³ In North Carolina, the militia went inactive for a quarter-century.¹⁴ Many colonies also divided their militia into a volunteer component that received additional training and a general militia that received only perfunctory training.¹⁵ In Massachusetts, the Minutemen were an example of a volunteer unit.¹⁶ For much of the eighteenth century, militia organization would ebb and flow depending on whether war was imminent.¹⁷

The entire militia was rarely called into active service. Instead, militia musters served as a recruiting ground for military service. Colonies would obtain militiamen for campaigns by first seeking volunteers at musters. If enough individuals did not volunteer, then authorities would impose a draft from the general militia to fill the remaining vacancies.¹⁸ The remaining militiamen would return home.

During the Revolutionary War, the militia performed many valuable functions. The Continental Army was often short of regular soldiers, especially when enlistments expired. In a pinch, the militia could quickly provide temporary soldiers.¹⁹ But there were also many problems with the militia system. Colonial law required the frequent rotation of militiamen, usually after three months. The militiamen would often leave active service almost as soon as they arrived.²⁰ American leaders also had significant problems coordinating separate state militias. For example, state militias “were too different from each other to be interchangeable,”²¹ and “contentious state militia officers squabbled with each other over relative rank and right of command.”²²

Article VI of the Articles of Confederation required the states to “keep up a well regulated and disciplined militia, sufficiently armed and accoutred.”²³ However, after the Revolution, the states largely failed to do this.²⁴ Worse, during Shays’s Rebellion in 1786, many Massachusetts militiamen sided with the rebels.²⁵ Faced with these deficits, the Constitutional Convention would undertake to strengthen national power over the militia.

The Constitutional Convention

The delegates to the Constitutional Convention were acutely aware of the shortcomings of the American militia during and after the Revolution. In principle, they widely agreed about the need for greater national control of the militia, but the devil was in the details, and, when it came to the details, there were bitter divisions over how far nationalization should go.

George Mason of Virginia proposed that the federal government should have the power “to make laws for the regulation and discipline of the Militia of the several States reserving to the States the appointment of the Officers.”²⁶ Mason wanted better militia regulation to prevent the federal government from raising a standing army.²⁷ He “considered uniformity as necessary in the regulation of the Militia throughout the Union.”²⁸

The Convention fractured on this point. Some delegates, including James Madison of Virginia, wanted plenary federal control of the militia because the militia involved national defense.²⁹ Others fought for more decentralization. Several delegates offered proposals that would have preserved state power while still allowing Congress to impose a national system of militia discipline.³⁰ Oliver Ellsworth of Connecticut wanted uniformity in arms and discipline but warned against giving “[t]he whole authority over the Militia” to the federal government. He worried that the states “would pine away to nothing after such a sacrifice of power.”³¹ But Mason’s initial compromise proposal largely stuck. With some edits from the Committee on Style, the clause reached its current form.³²

The militia envisioned by the Constitution was federal in the literal sense with control divided among the national and state governments. The clause gave Congress plenary authority over the organization of the militia. Congress could also govern militiamen who had been called into federal service. The states had power to select the officers, to train the militia according to Congress’s direction, and to control the militia when not in federal service. However, the Constitution did not answer many of the controversial questions of the day. For example, it was silent with respect to who would be enrolled in the militia or how frequently militia training should be conducted. These were political judgments left to Congress.

The term “militia” has created “confusion . . . owing to its indiscriminate use to designate both the whole military manpower potential of the country” and “organized military companies.”³³ Dictionaries published near the Founding Era often used the second meaning. American lexicographer Noah Webster, whose work the Supreme Court frequently cites, defined the “militia” as “the body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service.”³⁴ Webster further explained that members of the militia are “required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.”³⁵ British authors Thomas Dyche and William Pardon, who have also been cited by the Supreme Court, similarly defined the members of the militia as a civil defense force “who are casually raised out of the inhabitants upon extraordinary occasions of riots, tumults, invasions &c. [and] who as soon as the disturbance is over return to their respective habitations and employments.”³⁶ Other period dictionaries commonly cited by the Supreme Court provide less detail, briefly defining the “militia” as the “trainbands.”³⁷ But legal usage often favored the broader meaning. District of Columbia v. Heller (2008) observed that the “militia” of this clause was the entire military manpower, which this clause gave Congress the power to organize.³⁸ Regardless of this important ambiguity, these dictionary definitions agree that the militia was a force composed of citizens who performed only part-time and emergency military service, as distinguished from regular forces.

The Ratification Debates

During the ratification debates, the Anti-Federalists vigorously attacked Congress’s powers over the militia. First, the Anti-Federalists objected to Congress’s plenary power to organize the militia. Congress was not obligated to enroll the whole able-bodied population in the militia. Rather, it might create unrepresentative armed factions in society. At the Virginia ratifying convention, George Mason warned that Congress might not organize the militia at all, relying instead on a standing army.³⁹ Alternatively, Mason stated, Congress might enroll only part of the militia, thereby creating a “select militia.”⁴⁰ Further, the Constitution gave Congress exclusive power to organize the militia. Mason and Patrick Henry pointed out that the states could not even enroll individuals into the militia on their own authority.⁴¹

Second, the Anti-Federalists warned that Congress could abuse its power by disarming or refusing to arm the militia. Mason and Henry worried that states had no concurrent power.⁴²

Third, the Anti-Federalists were concerned that Congress could abuse its power to provide for militia discipline. Mason and Henry argued that Congress could provide for ignominious and harsh punishments for breaches of militia discipline.⁴³ It might do this, they feared, to create political support for a standing army. Delegates at the Maryland ratifying convention were concerned that without an additional declaration of rights, Congress could even subject all able-bodied men to military law instead of civilian law.⁴⁴ The dissent of the Pennsylvania ratifying convention stated that “the personal liberty of every man probably from sixteen to sixty years of age, may be destroyed by the power Congress ha[s] in organizing and governing of the militia.”⁴⁵

Nationalists responded to these fears. James Madison responded that the national government would not likely impose unusually harsh punishments on militiamen.46 Several Virginians, including Edmund Randolph and Henry Lee III, argued that Congress could not subject the able-bodied civilian population to military law. The federal militia power, they argued, was limited to those times when the militia was in active federal service.⁴⁶

Similarly, with respect to militia organization, the Federalists countered that the Anti-Federalists read the Constitution incorrectly. In the Virginia convention, James Madison and George Nicholas pointed out that states had concurrent power over the militia.⁴⁷ John Marshall, the future Chief Justice, observed that if Congress refused to organize or arm the militias, the Constitution did not prevent the states from enacting their own laws concerning the militia.49 Further, in Federalist No. 46, Madison explained that the militia would remain attached to state governments because, in part, states were empowered to select the officers. Madison contended further that state selection of officers also provided a second chain of military command should the standing army ever be used to usurp the constitutional government.

The Anti-Federalists’ concerns led them to propose a variety of constitutional amendments that would have altered the federal–state balance. For example, the Pennsylvania dissent recommended that “the power of organizing, arming and disciplining the militia . . . remain with the individual states.”⁴⁸ Proposals from the Virginia and North Carolina conventions would have granted states explicit concurrent power over the militia and allowed states to set penalties for violations of militia discipline.⁴⁹ These proposals were never adopted.

Other proposed amendments that touched on the militia system were ratified. The Second Amendment guaranteed a general, individual right to bear arms and declared that the militia was “necessary to the security of a free State.” (See Essay No. 164.) The Fifth Amendment explicitly required that civilian law and civilian trial procedures apply to militiamen except when those militiamen were in active military service. (See Essay No. 169.)

Early Practice

The Militia Act of 1792 required universal enrollment of all white men between the ages of eighteen and forty-five.⁵⁰ These individuals were obligated to furnish themselves with muskets and other military equipment.⁵¹ Beyond these meager provisions, early Congresses could not reach consensus on the organization, funding, and discipline of the militia. These disagreements resulted in a disastrous lack of military preparation.

The militia performed poorly during the War of 1812. Following that war, states increasingly added exemptions to militia training and eventually stopped actively enrolling most able-bodied citizens.⁵² In place of a universal militia, states began to rely on volunteer militia units. These units were independent fraternal societies, but they would receive charters making them officially government-sponsored militia organizations.⁵³ The remaining militia was left unorganized and untrained.

The militia system largely lapsed after the Civil War. During the Progressive Era, states reorganized militia units as a means to put down labor strikes.⁵⁴ States relied on a volunteer, organized militia, usually labeled the National Guard, alongside an untrained reserve militia, which consisted of the remaining able-bodied men eligible for military service.⁵⁵ These state laws were challenged as violations of the Militia Act of 1792 and the constitutional prohibition against states keeping “troops,” but the courts rejected these challenges. Importantly, courts held that National Guard units were an organized component of the militia, not “troops,” because they were nonprofessional soldiers.58 In Houston v. Moore (1820), a fractured Supreme Court also had ruled that states have concurrent power with the federal government to organize and discipline their militia.⁵⁶

Before the twentieth century, National Guard units were organized at the state level. Both their training and their combat performance were uneven. The Spanish–American war was a watershed for military policy; National Guardsmen volunteered for service, but they performed poorly.⁵⁷

The Militia Act of 1903 (The Dick Act)

The National Guard’s performance during the Spanish-American War led President Theodore Roosevelt to pursue militia reform.⁵⁸ In 1903, Congress passed the Dick Act.⁵⁹ The act legally separated the militia into an organized and reserve militia. The organized militia would consist of the National Guard and naval militia. The reserve militia (later called the unorganized militia) would consist of remaining able-bodied men who were subject to militia service. Congress also authorized federal funds for the National Guard and naval militia, but only if their units met federal standards. In 1916, Congress required states, as a condition of receiving federal funds, to appoint only militia officers meeting certain standards and to dismiss officers who lose federal recognition.⁶⁰

Congress also looked for ways to evade the limitations of the Calling Forth the Militia Clause, which limited deployment of the militia to domestic defensive conflicts. (See Essay No. 62.) During World War I, Congress authorized direct conscription into the national army. Through a draft into the army, Congress could make National Guardsmen (and other able-bodied men) deployable abroad for any kind of conflict, defensive or offensive.

The Supreme Court upheld conscription in the army. The Court found that the Militia Organization Clause does not limit Congress’s power to deploy individuals abroad as soldiers in the army.⁶¹ Through conscription into the national army, the Supreme Court authorized Congress to access the entire body of the militia for military purposes without obeying the constitutional limitations of either the Calling Forth Clause or the Militia Organization Clause.

Dual Enlistment

As applied to the National Guard, conscription created special problems. Under legislation from World War I, National Guardsmen were relieved of their status as “militia” upon being conscripted into the federal army. The Guardsmen did not automatically return to the militia when their service in the army was over.⁶² Moreover, they were selected as individuals rather than as units.

To fix these problems, Congress created a system of “dual enlistment” in 1933.⁶³ This system required National Guardsmen to enlist in two coextensive organizations: the National Guard of their state, which was the organized militia of the state, and “the National Guard of the United States,” which was a component of the Army Reserve.⁶⁴

Under the dual enlistment system, the Militia Clauses do not have much practical application. Using its constitutional power to raise armies, Congress may activate entire units of the National Guard and send them abroad for offensive wars in their capacity as Army Reserve soldiers. The federal government also trains much of the militia in their capacity as officers and soldiers in the U.S. Army Reserve or U.S. Air Force Reserve. In theory at least, states formally commission militia officers, but in practice, the federal government exercises nearly plenary de facto control of the appointment of officers. It can even force states to dismiss militia officers who lose federal recognition.⁶⁵

The Supreme Court effectively upheld the constitutionality of dual enlistment in Perpich v. Department of Defense (1990).⁶⁶ In that case, the federal government ordered National Guardsmen to train in Central America. Governors, however, tried to veto these missions. Congress responded by eliminating the authority of governors to veto Guard training on political grounds. The governors challenged this action but did not contest the constitutionality of dual enlistment. The Supreme Court upheld Congress’s power to eliminate the governors’ veto authority. The Constitution did not require governors to have a veto power over National Guard training, and Congress had the authority to require Guardsmen to train abroad in their capacity as soldiers in the Army Reserve.⁶⁷

Open Questions

• Is Perpich correct as an originalist matter? The Supreme Court explained that Guardsmen were militiamen because they were nonprofessional soldiers. The Court did not explain, however, how these nonprofessional soldiers could also be soldiers in the “armies,” a term that the Constitution arguably uses to denote the regular forces.⁶⁸ As both militiamen and army soldiers, Guardsmen occupy two arguably inconsistent legal statuses.⁶⁹
• States have a power with the federal government to organize their militia. Can states override federal militia legislation? Before District of Columbia v. Heller (2008),⁷⁰ many courts held that the Second Amendment gave states such a preclusive authority, but in military law cases, courts have uniformly upheld federal supremacy.⁷¹ The Supreme Court has never settled the limits of federal power over the militia.

1. S.T. Ansell, Legal and Historical Aspects of the Militia, 26 Yale L.J. 471, 480 (1917). ↩︎
2. James Biser Whisker, The Citizen-Soldier Under Federal and State Law, 94 W. Va. L. Rev. 947, 952 (1992). ↩︎
3. Assize of Arms 1181, 27 Hen. 2, §§ 1–2 (Eng.); Statute of Winchester 1285, 13 Edw. c. 6 (Eng.). ↩︎
4. Robert Leider, Deciphering the Armed Forces of the United States, 57 Wake Forest L. Rev. 1195, 1219 (2022). ↩︎
5. F.W. Maitland, The Constitutional History of England 276 (1920). ↩︎
6. John K. Mahon, History of the Militia and the National Guard 6 (1983). ↩︎
7. Id. at 24. ↩︎
8. Russell F. Weigley, A History of the United States Army 4 (1984). ↩︎
9. Id. at 3–4. ↩︎
10. Mahon, supra at 14–18; Robert L. Goldich, Historical Continuity in the U.S. Military Reserve System, 7 Armed Forces & Soc’y 88, 91–92 (1980). ↩︎
11. Jerry Cooper, The Rise of the National Guard: The Evolution of the American Militia, 1865–1920, at 3 (1997). ↩︎
12. Mahon, supra at 18; E. Milton Wheeler, Development and Organization of the North Carolina Militia, 41 N. Carolina Hist. Rev. 307, 309–10, 315–17, 319–20 (1964). ↩︎
13. William L. Shea, The Virginia Militia in the Seventeenth Century 133–35 (1983). ↩︎
14. Wheeler, supra at 311. ↩︎
15. Weigley, supra at 8. ↩︎
16. Id. at 8. ↩︎
17. Mahon, supra at 18. ↩︎
18. Id.; Mahon, supra at 19–20; Cooper, supra, at 2J. ↩︎
19. Mahon, supra at 44. ↩︎
20. Id. at 19. ↩︎
21. Id. at 36. ↩︎
22. Cooper, supra at 5. ↩︎
23. Articles of Confederation, art. VI, § 4. ↩︎
24. 2 Farrand’s 387. ↩︎
25. Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle 11–12 (2002). ↩︎
26. 2 Farrand’s 330, 326. ↩︎
27. Id. at 326. ↩︎
28. Id. at 330. ↩︎
29. Id. at 331–32. ↩︎
30. Id. at 385–86. ↩︎
31. Id. at 331. ↩︎
32. Id. at 570, 595. ↩︎
33. Weigley, supra, at 321. ↩︎
34. Noah Webster, An American Dictionary of the English Language (1828), https://perma.cc/W4A4-XZXK. ↩︎
35. Id. ↩︎
36. Thomas Dyche & William Pardon, A New General English Dictionary (18th ed. 1781). ↩︎
37. Samuel Johnson, A Dictionary of the English Language (10th ed. 1792), https://perma.cc/V2ZK-2VB2; 1 John Ash, New and Complete Dictionary of the English Language (1775); James Barclay, Complete and Universal English Dictionary (1792); 2 Thomas Sheridan, A Complete Dictionary of the English Language (3d ed. 1790); John Walker, A Critical Pronouncing Dictionary (1791); 2 Timothy Cunningham, A New and Complete Law-Dictionary (1764); Thomas Potts, A Compendious Law Dictionary (1803). ↩︎
38. 554 U.S. 570, 596 (2008). ↩︎
39. 10 DHRC 1272. ↩︎
40. Id. at 1312–13. ↩︎
41. Id. at 1270, 1276, 1306. ↩︎
42. Id. at 1270, 1276. ↩︎
43. Id. at 1289, 1301, 1304, 1312. ↩︎
44. 2 The Bill of Rights: A Documentary History 729, 734 (Bernard Schwartz ed., 1971). ↩︎
45. Storing 3.11.52. ↩︎
46. Id. at 1280, 1288, 1294, 1301. ↩︎
47. Id. at 1280, 1304. ↩︎
48. Storing 3.11.13. ↩︎
49. 10 DHRC 1550, 1554; 30 DHRC 456. ↩︎
50. Act of May 8, 1792, ch. 33, 1 Stat. 271 (repealed 1903). ↩︎
51. Id. § 2. ↩︎
52. Frederick B. Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181, 188–91 (1940); Mahon, supra at 81–82; Perpich v. Dep’t of Def., 496 U.S. 334, 341 (1990). ↩︎
53. Cooper, supra at 15–16. ↩︎
54. Id. at 23–24. ↩︎
55. Id. at 44. ↩︎
56. Houston v. Moore, 18 U.S. 1 (1820). ↩︎
57. Cooper, supra at 96–98, 108. ↩︎
58. Leider, supra at 1227–32. ↩︎
59. Militia Act of 1903 (Dick Act), ch. 196, 32 Stat. 775. ↩︎
60. Act of June 3, 1916, 39 Stat. 166; Wiener, supra at 200–01. ↩︎
61. Arver v. United States (Selective Draft Law Cases), 245 U.S. 366, 376–78 (1918); Cox v. Wood, 247 U.S. 3, 4 (1918). ↩︎
62. Perpich, 496 U.S. at 345; Wiener, supra at 208. ↩︎
63. Wiener, supra at 207–09. ↩︎
64. National Guard Act of 1933, Pub. L. No. 73–64, ch. 87, § 1, 48 Stat. 153. ↩︎
65. Leider, supra at 1238–39. ↩︎
66. Perpich, 496 U.S. at 347. ↩︎
67. Id. at 349–52. ↩︎
68. Id. at 348. ↩︎
69. Robert Leider, Federalism and the Military Power of the United States, 73 Vand. L. Rev. 989, 1017–35 (2020). ↩︎
70. 554 U.S. 570 (2008). ↩︎
71. J. Norman Heath, Exposing the Second Amendment: Federal Preemption of State Militia Legislation, 79 Univ. Det. Mercy L. Rev. 39 (2001). ↩︎