MILITIA - HISTORY AND LAW FAQ 2/6 version 1.01 July, 1995 Part 3. - History of the Militia

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MILITIA - HISTORY AND LAW FAQ 2/6 version 1.01 July, 1995 Part 3. - History of the Militia in America -------------------------------------------- 3.1 Standard Sources Some standard works on the militia and the American military are: Cress, Lawrence Delbert Cress _Citizens in Arms: The Army and the Militia in American Society to the War of 1812_ Cunliffe, Marcus, _Soldiers and Civilians: The Martial Spirit in America, 1775-1865_ Mahon, John K, _The History of the Militia and the National Guard_ Millet, Allan R. & Maslowski, Peter, _For The Common Defense: A Military History of the United States of American: Revised Edition_ Riker, William H, _Soldiers of the States_ One of the few Law Review articles discussing the historical militia is "The Militia Clause of the Constitution" by Frederick Wiener 54 Harvard Law Review 181(1940). 3.2 Was there such a thing as a common law militia? A.The militia were not created by the common law. Militia law is statutory law. The charter of each American colony included authority to create militia units. All American colonies passed militia laws under the authority granted by their charters. All states and the federal government have militia laws. There never was a period of common law militia in America. Interpreting statute law and the Constitution to understand the meaning of 'militia', for example, does not mean that there ever was a common law militia. Even if the Bill of Rights or the Fourteenth Amendment means that laws against unauthorized paramilitary organizations are unconstitutional the result would not change civilians into some sort of common law militiamen. [Note: To date these laws have been found constitutional] 3.3 Was duty in the militia voluntary in the American colonies? A. No, able bodied free males were required by law to belong to the miliita by the statute law of the colony. Whether or not they actually served in militia units is another question. Sometime the militia laws were strictly enforced, sometime laxly. The requirement for service could be met by joining either the colony's militia in your local area or joining (if they would have you) a volunteer militia unit. These companies were allowed under colonial legislation and were, of course, subordinate to the authority of the colony. Some colonies provided religious exemptions to militia duty. 3.4 Was the term "unorganized militia" used in colonial America? A. No. The term for those within the militia system was simply the militia. A distinction was drawn between those who did their militia duty in the compulsory units and those who did their militia duty in volunteer units. The compulsory militia was known as trainbands, beat militia, or enrolled militia. The volunteer milita was known as the volunteer militia, or the uniform militia. The term 'uniform' referred to the fact that the volunteers wore uniforms. 3.5 Aren't you simplifying almost 200 years of militia history? A. Yes, but the concept of the militia to remember is that it was a SYSTEM to create organized armed forces for the colony. The militia could be called out by local officials for defense purposes or called out by the colonial leadership. There was also fighting and killing done by groups that were not militia units. 3.6 How did the militia change in the 1774-1775? A. The militia were revitalized and reorganized in the 1770's by the colonies to provide a force to counter the British Army in the growing constitutional crisis over the colonies. "In September 1774 the Continental Congress endorsed a resolution from Suffolk County, Massachusetts, calling for the colonies to reorganize the militias under leadership friendly to the "rights of the people," setting in motion a series of provincial actions that made the militia the cornerstone of armed resistance to British policy through the winter of 1775. Massachusetts moved first to revive the militia's ancient function as the armed guarantor of the civil constitution. In October 1774, the provincial congress instructed local committees of safety to assume responsibility for the training, supply, and mobilization of the colony's militia system. It also directed the citizens in their capacity as militiamen, and "with due deliberation and patriotic regard for the public service," to elect their own company officers. Those chosen in local voting were to elect regimental officers to command the militia at the county level. The provincial congress retained the power to appoint general officers, ensuring that the military order remained ultimately subordinate to civil authority. "Resolving "that a well-regulated Militia, composed of the gentlemen, freeholders, and other freemen, is the natural strength and only stable security of a free Government," the Maryland convention acted in December 1774 to reorganize its militia under a popularly elected officers corp. ...Six month later, in an effort to provide a source of manpower for the newly formed Continental army, Congress recommended that all states adopt the republican principles embodied in the Massachusetts militia structure. ...By early fall [1775] provincial assemblies in Maryland, New York, New Jersey, Pennsylvania, Virginia, New Hampshire, and North Carolina had taken steps to comply with the congressional recommendations. - Cress, pp. 48-49 3.7 How could a Revolutionary militia be under civilian leadership? They were after all, in revolt against the King? The militia of Massachusetts were definitely supervised by the shadow government that the colonials had set up and which would eventually become the Patriot government of Massachusetts. Some militia historians believe that the 'subverting' of the colonial militias by the Patriots was key to the success of the American Revolution.[MP] 3.8 Doesn't the uncoordinated behavior of the militia during and after Lexington and Concord, in 1775 show that the militia were armed citizens and not organized under the civilian leadership of the rebellious colonies? A. "The revolutionary government in Massachusetts directed all company officers to prepare one-third of their command to respond instantly to calls. Thus were created the Minute Man units, copied then by other colonies/states. Minute Men first came under fire at Lexington when Captain John Parker's company stood in the way the British march toward Concord to confiscate military stores. Although Parker's Minute Men fired the shots "heard round the world," they scarely halted the march of the foe. At Concord, however, militia units, some of them with ancient lineages --lined the rise overlooking the British line of march. Behind them stood a company made up of old men and boys. Still farther behind were citizens who removed the stores the redcoats had come to confiscate. Foiled in their mission, the British began the return march to Boston, only to be hit by fusillades from behind every stone fence. This fire came not from organized militia but from clusters of angry citizens. Had the marksmen been better organized, they might have destroyed the invading column." Mahon, p.36 The conduct of individual militiamen at Lexington and Concord was a factor of their hasty spur-of-the-moment mobilization, and not their lack of military hierarchy. If you look at the rest of the war in Massachusetts in 1775, after the first day's events, you will see the mobilization using established hierarchy and chain of command. [MP] 3.9 But during the Revolutionary war, the militia were LOCALLY controlled for the most, each unit formed, armed and led by the local elected commander. Only the wealthier states that could afford to appoint provisional state militia officers did so. Everyone else fended for themselves. A.This is not an accurate characterization of the militia as a whole. To an extent, of course every militia unit was locally controlled, because the militia was geographically divided. A militia general controlled the militia in his area of the state. However, all the state militias were tightly controlled by the state governments, which called out militia units for duty, drafted militiamen into the Continental Army or for other purposes, set tables of organization and equipment, maintained a system of military justice, and in every other way organized the activities of the militiamen during the revolution. Units were not formed, armed and led by "local elected commanders." They were formed by the states, armed by a combination of individual action and the states, and how they were led depended entirely on state law. Some states appointed all militia officers. Other states allowed elections. But again, the key is that the state determined the procedure.[MP] 3.10 How did the militias do during the American Revolutionary War? A. The militia's performance on the battlefield against British troops was only so-so, but nevertheless the militia was key to American victory. Patriot militias offered a ready source of manpower in every region, supplementing the Continental Army. Moreover, they performed a signal service in keeping Loyalists in line, thus handing over control of the countryside to Patriot forces.[MP] 3.11 Did the early state leadership exercise much control over the militia? A. When the Founding Fathers referred to the militia, they were referring to the state organizations that had already existed for decades or even more than a century in some states by 1787. These state organizations had extensive militia codes which regulated who would be and who would not be in the militia, how, when and where militia members would train, who would officer the militia, what the punishment for transgressions would be, how the militia could be called up, etc. Although it was common for people to refer to the state militias as consisting of all the people, since they did consist of one whole heck of a _lot_ of the people, anyway, in actual fact, exemptions were very common, and it was easy for wealthy or privileged people to avoid militia service. These state organizations were hierarchical in nature. In some states officers were elected; in others, they were appointed by the state. The entire state was usually organized into geographical divisions which corresponded with a military division. Divisions were geographically subdivided into brigades, regiments, and companies, just like regular military units. In Southern states, regiments often corresponded with counties, and militia captains had additional civil responsibilities, such as handling elections or appointing slave patrols. It is a mistake,to conceive of the militia merely as a mass of individual men with guns. Though indeed they were citizen-soldiers, they were as organized as 18th century society could organize Americans, and when they were called out, it was usually through a top-down, organized fashion.[MP] 3.12 Were the states concerned during the Revolutionary war with the subordination of the military,including the militia, to civil authority? A. Very much so, and not surprising, considering that the refusal of British troops to subordinate to colonial leadership was one of the major reasons for the American Revolution. "Every state ratifying a new constitution during the Revolutionary War save New Hampshire, Georgia, and New Jersey, noted the necessity for the subordination of military to civil authority, proclaimed the right and obligation of free men to bear arms, and denounced standing armies as a threat to the civil liberties of a free society... [C]onstitutional conventions sought to ensure that the states' military capacities could not become the springboard by which ambitious political authorities could subvert the constitutional order for their own political ends. Establishing the primacy of the state assemblies in military affairs provided the principal means of acheiving that goal. "In no state was the governor denied the office of commander in chief of both militia and regular state troops. Nevertheless, the real power to mobilize the states' military institutions belonged to the representative assemblies...Most states required the consent of an executive council before the militia could be embodied... "All regular and militia officers in the states served under commissions granted by their respective governors... "Still, there was little chance that militia officers might become extensions of an ambitious executive authority, for in no state did the governor enjoy a free hand in appointing militia officers. The governor of New York held the power to make militia appointments with the advice of his executive council. Virginia's governor held the same power, except that all appointments were to be made on the advice of local county courts. In the other states, governors had no role in the appointment of militia officers. Constitutional conventions in Delaware, North Carolina, and South Carolina required the joint concurrence of the popular branches of government for the appointment of field and general grade officers. The same conventions vested the legislative assemblies with the power to determine how to select company-grade officers. In New Jersey and New Hampshire company-grade officers were to be elected by the rank and file, and field and general officers were to be appointed by both houses of the general assembly. Pennsylvania allowed its militiamen to elect officers through the grade of colonel, and in Massachusetts popular election extended to the level of brigadier general. In both states, however the highest level of the militia command structure served at the behest of the popular assemblies" - Cress pp. 60-62: 3.13 What did the Articles of Confederation say about the militia? A. The militia was still very much the state militia with little central control. The States were given the responsiblity for actually supplying the militia with arms and equipment. The Articles stated: "No vessels of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defence of such State, or its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number ony, as in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quanittity of arms, ammunition and camp equipage." There are other paragraphs pertaining to the militia in Article VI, Article VII, and Article IX. Article VII provides that all militia officers under the rank of colonel be appointed by state legislatures. Article IX provides that Congress should appoint officers at the regimental level (colonels, usually) and above, and also gives a procedure by which the federal government could call upon the militia in case of national emergency. It was up to state governments under the Articles to determine which men would serve in the militia. The Articles also clearly distinguish between troops which can be only be kept in time of peace by states with the consent of Congress and militia which it is the obligation of the state to supply and keep up. 3.14 What was Shays' Rebellion and how did it bring about more central control over the militia? A. "In 1786, a body of men under Daniel Shays, who had been an efficient captain of a company [of militia] during the Revolution, rebelled against the foreclosure of land in Massachusetts. As many as as 1100 of them threatened the Supreme Court, whle 800 militiamen, called to defend the Court but sympathetic to the rebels, looked on. The mortgage holders resided in eastern Massachusetts, the rebels in the west. Because there was ill-feeling between the two sections of the state, the creditors were able, using influence and money, to gather enough militia men from eastern Massachusetts to march against the insurrection. ... The use of citizen soldiers to suppress rioters became the pattern for dealing with insurrections in the last decade of the 18th century. The difficulty in suppressing Shays' rebellion was only one episode convincing former leaders of the Revolution that the Articles of Confederation were too weak to preserve the structure they had fought to bring into being. " Mahon, p.47 3.15 Was Shays' Rebellion an example of a private militia? To the extent that the Shaysites had military structure, they used the existing militia structure; simply not for legal purposes. "...[N]ews arrived from Massachusetts in September 1786 that armed insurgents had closed the courts of Common Pleas in Hampshire, Worcester, and Middlesex counties. Instead of rallying to defend the civil order, the local militia sided with Shays' Rebellion. Only a day after Governor James Bowdoin had called on upon the citizenry to quell the rebellion, word arrived from Worcester that 'there did appear universally that reluctance in the People to turn out for the support of Government as amounted in many instances to a falt denial: in others to an evasion or delay which amounted to the same thing.' From September through January reports of the militia's unreliability flowed into the governor's office. Even the militia's successful defense of the Continental arsenal at Springfield was marred when supposedly loyal militiamen joined the ranks of the insurgents during the skirmish. Resistance to constitutional authority was by no means limited to the militia's rank and file. Militia officers discouraged their companies from taking the field, prevented the distribution of powder and supplies, and actively recruited their subordinates for service with the insurgents." Cress,pp.95-96 3.16 If the militia, as all the people armed, was considered good by the anti-Federalists, what was the evil? A. For many, the good was a militia made up of all the people, the evil found in both standing armies and a 'select' or 'classified' militia system. A select militia was basically dividing the militia into several groups with varying levels of burdens, with the prime burden of military service placed on those from 18-26 or so. Congress never established such a system, despite the wishes of people that ranged from George Washington to Henry Knox to Rufus Putnam to Timothy Pickering to Thomas Jefferson to James Madison, etc.,, etc. etc. [MP] For example, Richard Henry Lee's Letters from a Federal Farmer saw little difference between a standing federal army and a select militia: "Should one fifth or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those be the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army while the latter will be defenseless." Or, John Smilie of Pennsylvania: "Congress may give us a select militia which will, in fact, be a standing army". What Lee and Smilie feared was that Congress was given so much power--particularly "to organize"--that if could form, if it wished, a select militia. The notion of a select militia, though it had earlier antecedents, was basically the result of the end of the Revolutionary War. Alexander Hamilton in 1783, as a member of Congress, asked George Washington for his opinions on what sort of military forces the U.S. should have in time of peace. George Washington consulted with a number of military subordinates, most of whom recommended that, in addition to several things having to do with the Army, that the militias should be classified according to age, with the younger men doing most of the work, and should be more under the authority of the national government. Washington condensed their opinions and sent them off to Alexander Hamilton, who basically ignored them and offered a different plan of classification, but based on marriage, not age. Two of Washington's advisors, Henry Knox and Baron Steuben, then printed their plans separately in the mid 1780s. Knox's plan, in particular, was discussed by Congress in 1786 and "recommended" to the states. Knox, an ardent federalist, wanted the federal government to have great authority over the state militias. There was an awful lot of opposition to his plan. It is primarily Knox's plan, and others like it, that the anti-federalists feared when they referred to a "select militia." It was not a militia that actually existed, but one that they felt could come into existence if Congress was given too much power over the militia. [MP] 3.17 Was there opposition to the strong federal power given by the Constitution over the state militias? A. Sure. November 1787: "An Officer of the Late Army" complains that "The MILITIA is to be under the immediate command of Congress." December 1787, Pennsylvania Convention: Robert Whitehill calls for the power to organize, arm and discipline the militia to remain with the states, not Congress. The Dissent of the Pennsylvania minority claimed that "The absolute unqualified Command that Congress have over the militia may be made instrumental to the destruction of all liberty, both public and private." Patrick Henry, June 1788, "They have power to call them out, and to provide for arming, organizing, and disciplining them.--Consequently they are to make militia laws for this state." These people, in fact, thought that Congress had so much control over the militia that the Constitution should not be adopted. However, most people didn't think that this much control posed a threat, because the militia would not stand for any attempt to use it against the people. 3.18 How did the The Federalists reply? A. From THE FEDERALIST - Alexander Hamilton, James Madison, John Jay,XXIX "...To oblige the great body of the yeomanry and of the other classes of citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the to the people and a serious public incovenience and loss. It would form an annual deduction from the productive labor of this country to an amount which, calculating upon the present numbers of the people, would not fall far short of a million pounds. To attempt a thing which would abridge the mass of labor and industry to so considerable extent would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. But through the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate size, upon such principles as will really fit it for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defense of the state shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist. Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point is a thing which neither they nor I can forsee. There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common sense are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits, and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia and to command its services when necessary, while the particular States are to have the sole and exclusive apportionment of the officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a prepondering influence over the militia... 3.19 But isn't it clear from the debates surrounding the Constitution and the Second Amendment, that everyone intended for the militias to be the means by which the states could resist a tyrannical federal government. How does handing almost absolute control of the militias to the federal government fit with this clear intent? A. It can safely be generalized that most people thought that militias would not stand to be controlled by the federal government if that body were to begin acting oppressively. Therefore, giving some control over them to the federal government (which would help the nation repel foreign attacks, etc.) would probably not lead to despotism.[MP] 3.20 What does the Constitution say? A. First, the constitution continued the prohibition of states keeping troops in peacetime without the consent of Congress. Again, troops were considered different from the militia. Article 1, Section 10: "No state, shall without the consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any agreement or compact with another state, or wiht a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay". The Militia Clauses gives Congress the power: "...To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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;" Power of the President over the Militia "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;" Like most things, the militia clauses were a compromise between those who wanted a centralized national militia and those who wanted the militia to be very decentralized. What was not specified in the Constitution, but was clearly understood by all was that the term 'militia' meant the militia of the states. 3.21 What about the Second Amendment? A. The second Amendment: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The meaning of the Second Amendment, especially in these newsgroups, is a matter for heated debate. This FAQ is not a FAQ on gun control or the Second Amendment, but it will make a few comments. Most historians agree that at least part of the meaning of the Second Amendment was that it specifically guarantees the the right of states to ensure the arming of their militias in the face of fears that the federal government might effectively deny to arms to a state controlled militia. However, those fears never came true. The Second Amendment has been largely irrelevant to the history of the militia since 1792. The Second Amendment has been used, unsuccessfully, to challenge the constitutionality of state laws against laws prohibiting unauthorized paramilitary organizations. This failure is not surprising. Even if the Second Amendment is intended to protect the right to keep and bear arms as private citizens, it is a much further step to say it was intended to protect the right to armed paramilitary activities by self-selected groups outside of civilian political control. For example, the 1776 Virginia Bill of Rights, considered by many as one of the sources of the Second Amendment states: "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free State; that standing armies should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power." 3.22 The Second Amendment refers to a "well-regulated" militia, but I have been told that this the term "regulated" in this time frame simply meant "smoothly functioning" rather than in the sense of "rules and regulations," and that there were no regulations for the militia during this time period. A. I've had some qualms about including this information because of the danger of the distracting the reader from the main issues about the history and law of the militia. On the other hand, it is interesting material and I've never seen it so well-organized (like the hyphen?) before. Three points. One, even if every word that follows in this section on 'well-regulated' is wrong, it would have no impact on the rest of this FAQ. Don't let this section sidetrack you from the rest of the FAQ. Two, Mark Pitcavage, who wrote this section has a rule that he will not discuss the meaning of the Second Amendment in newsgroups, though he will discuss it through e-mail. Finally, although I've often seen Black's Law Dictionary abused on the internet, I checked it, and here are the definitions of 'regulate' from the Fourth edition [I've left out the citations]. "Regulate. To fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to government principles or laws. The power of Congress to regulate commerce is the power to enact all appropriate legislation for its protection or advancement; to adopt measures to promote its growth and insure its safety; to foster, protect, control and restrain. It is also the power to prescribe rules by which commerce is to be governed and embraces prohibitory regulations" Over to you, Mark. This FAQ itself provides some examples of 'regulations' in the form of the 1792 Uniform Militia Act and the 1837 North Carolina law on volunteer cavalry. There is a continuity from the time of the founders (and before) through the nineteenth century through today, in which the term "regulated" referred to regulations. "Well regulated" in the Second Amendment refers to the combination of state and federal regulations, as authority over the militia under the Constitution was divided between the two by the Militia Clauses. Most of the founders emphasized federal regulations, since that was what was at issue during the ratification debates. Sometimes the Founding Fathers used the term "regulate" to refer to state militia laws. For instance, Patrick Henry and James Madison, members of the Virginia House of Delegates in 1784, were appointed to a committee to prepare a bill "to amend the several acts of Assembly, for regulating and disciplining the militia, and for providing against invasions and insurrections." It is also interesting to read the words of John Sullivan, the former Revolutionary War general, Federalist, and governor of New Hampshire, in 1785, when he says that "And the Prussian army so formidable in Europe, is nothing more than a well regulated militia; the voice of the Prince calls them to the field; three months are taken up in disciplining them, and in passing the reviews; they are then furlowed..." Sullivan evidently thought that "well regulated" could mean three months of government training a year! In 1783, Alexander Hamilton made a report on national defense to the Continental Congress, in which he suggested that states transfer the right of appointing officers to the Continental units to Congress, arguing that "without it there can never be regularity in the Military system." Though dealing with a situation that was never adopted, it nevertheless illustrates further that the term "well-regulated" could hinge on federal control. This becomes more important later in the same report when he discusses the militia, which he felt should be "well regulated;" to that end, Hamilton provided a plan for the militia, its organization, training, officering, equipment, duties, etc. We also find the Federal Farmer, in November 1787, noting that "The state must train the militia in such form and according to such systems and rules as Congress shall prescribe; and the only actual influence the respective states will have respecting the militia will be in appointing the officers...I know that powers to raise taxes, to regulate the military strength of the community on some uniform plan, to provide for its defence and internal order, and for duly executing the laws, must be lodged somewhere; but still we ought not to lodge them, as evidently to give one another of them in the community, unde advantages over others." Clearly the Federal Farmer believed that the power to "regulate the military strength of the community" was lodged with Congress. We could turn as well to Benjamin Lincoln, Revolutionary War general, Massachusetts politician, and militia officer, who reviewed Henry Knox's 1790 plan to organize the militia, and referred to it as Knox's "proposed system for regulating the militia of the United States." In fact, the term "regulating" was used synonymously for "organizing" by a number of people at the time. Coming back to Alexander Hamilton, we see him in the Federalist 29 in January 1788, arguing that "if a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security." (he is referring here to Congress) It is hard to imagine how one could find a plainer statement saying that the term "well regulated" applies to laws passed by the national government. It is clear, too, that the term cannot apply solely to training, because the power to train, as Hamilton knew, was given to the state governments. Later in the document, we see Hamilton asking the question, "What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia and to command its services when necessary; while the particular states are to have the sole and exclusive appointment of the officers?" If a Federalist like Alexander Hamilton believed that the term regulated meant Congress' power over the militia, what about the antifederalists? We see Luther Martin, in January 1788, arguing that "it was speciously assigned as a reason [by nationalists], that the general government would cause the militia to be better regulated and better disciplined than the State governments." Indeed, Martin gets even more specific, when he argues that instead the government should leave power to the states: "That leaving the power to the several States, they would respectively best know the situation and circumstances of their citizens, and the regulations that would be necessary and sufficient to effect a well regulated militia in each--That we were satisfied the militia had heretofore been as well disciplined, as if they had been under the regulations of Congress..." How could you ask for anything more specific about the meaning of well-regulated? What creates a well regulated militia? Regulations! James Wilson, in the Pennsylvania state ratifying convention, applauded the notion of uniform militia laws that would be passed by Congress: "In every point of view, this regulation is calculated to produce the best effects. How powerful and respectable must the body of militia appear, under general and uniform regulations!" David Ramsay, the South Carolinian, gave an oration at Charleston in which he said that "Tradition informs us, that about forty years ago France meditated an invasion of New England, but on reading the militia law of Massachusetts, declined the attempt. If this was the case under the wholesome regulations of one state, what room is there to fear invasion when an union of force and uniformity of system extends from New Hampshire to Georgia?" Again: Congress can best provide for a well regulated militia. We could turn as well to Benjamin Lincoln, Revolutionary War general, Massachusetts politician, and militia officer, who reviewed Henry Knox's 1790 plan to organize the militia, and referred to it as Knox's "proposed system for regulating the militia of the United States." In fact, the term "regulating" was used synonymously for "organizing" by a number of people at the time. Below are a few examples of the meaning of 'regulated' culled from the early years of Congress. There were many more such references; these are simply ones that I have made notes on: 1st Congress, 3rd Session . Mr. Vining observes that the greatest objection [to a motion for arming the militia] is that it stops short in the regulation of the buiness. December 22, 1790. Mr. Bloodworth [argues that present militia bill] goes to the minutiae of the regulations of the militia. January 9, 1795. Mr. Tracy said, he was convinced of the necessity of amending the militia law; before Congress made any regulations of the kind, the militia, in the State he was from, was under very good discipline... December 19, 1796. (paraphrase) Mr. Henderson objects that the states haven't yet had time to regulate their systems so as to comply with the 1792 law. April 29, 1798. Mr. Dayton moved that the discharged from further consideration of this bill [revising the militia system]...however salutary the proposed regulations might be in a state of tranquility, he did not think it would be proper, in the present circumstances of the country, to derange the whole Militia system to so great a degree... March 6, 1810. Samuel Smith delivers a committee report, noting that no authority is delegated to Congress to regulate fines for non-attendance (at militia musters). January 9, 1818. William Henry Harrison delivers a bill for organizing, arming, and disciplining the militia. In describing the bill, says "Regulations for calling forth the militia may remain substantially" as at present. Later in the same report, he says that under the proposed bill, when training, the militia "shall be subject to the rules and regulations prescribed for the government of the militia when in the military service of the United States." As well, many militia codes passed by the states had titles like "A law to regulate the militia." The militia laws of Ohio from the 1840s are examples of such phraseology. These laws "to regulate" the militia were complete militia laws, dictating everything from officers to court martials to training to formation of units to fines to musters, etc., etc., etc. Some people want the term "well-regulated" to have nothing to do with regulations or Congress, because of their interest in maintaining a right to keep and bear arms. Since some gun control advocates say that the preamble to the Second Amendment (mentioning the "well-regulated" militia) means that only members of the "well-regulated militia"--which today would be the National Guard--have an absolute right to bear arms, it is in the interest of those who oppose gun control to render this phrase meaningless. Whether or not the Second Amendment guarantees an individual right to bear arms is not particularly relevant to this FAQ, but the issue of whether or not the national government has some authority over the militia is important. It is therefore worth pointing out, as I have with the examples above, that the argument that the term "well-regulated" had nothing to do with regulations, is very probably false. [MP] 3.23 Does the Constitution only give the federal government the power to organize,arm,and discipline the militia when it has been federalized? A. No. The federal government always has the power to "organize, arm and discipline" the state militias. It has this power regardless of whether or not the state militias are called up by the federal government. Furthermore, it routinely _used_ this power at times when no state militias were called up by the federal government. When the state militias _are_ called up, the federal government has _additional_ powers over them, but this has nothing to do with the other powers. [MP] 3.24 What was meant by the federal power to 'provide for organizing' the militia? A. Almost all courts and legislators have understood the term meant the power to define who was and who was not in it, what sort of units it should have and how they should be structured, how it would be officered, and what the duties of officers were. A number of people thought that the power to 'organize' extended far beyond this, but there was dispute about this point. [MP] From Merriam Webster's Tenth Collegiate Dictionary: Provide. vb. 1. To take precautionary measures. (Provide for the Common Defense.)2. TO MAKE A PROVISO OR STIPULATION (THE CONGRESS PROVIDES FOR AN ELECTED TWO-CHAMBER LEGISLATURE) 3. To make preparation to meet a need; to supply sustenance vt (vert transitive) (archaic) 1. To prepare or get ready in advance 2. To supply or make available 3. To make something available to 4. TO HAVE AS A CONDITION; STIPULATE. 3.25 Did the concept of the militia in 1792 ever include units that were not responsible to and militarily subordinate to civilian authority? A. No. 3.26 What are the two major pieces of federal legislation concerning the militia after the passage of the Constitution? A. The 1792 Uniform Militia Act created a militia system that was very decentralized with every able bodied free male citizen required to do militia duty. The 1903 Dick Act recognized that compulsory militia service no longer existed. The organized militia, now called the National Guard, came under much greater federal control and received much higher federal funding. 3.27 The Founding Fathers looked for inspiration to the common law of England before the passing of the first militia statute. The Anglo-Saxon militia, called the Fyrd, consisted of all able-bodied men; and it was the Fyrd that the founding fathers had in mind when they spoke of a militia. A. There doesn't seem to be much evidence of this. Congressmen in 1792 didn't have to look any farther than the laws of their respective states to find inspiration for drafting militia laws. 3.28 What did the 1792 Uniform Militia Act do? The 1792 Uniform Militia Act, which was the act that Congress passed to organize, arm, and discipline the militia, specified that militiamen purchase and maintain their own weapons. It specified which classes of individuals were included and excluded from the militia, and specified the organization of the militia. "[The 1792 Law] gave the militia whatever slight central direction it ws to have for 111 years. It stated that all free, able-bodied white men owed military service to both state and nation. It furthers directed the eligible males to furnish themselves with proper firearms and accoutrements. Certain categories of men were exempt from service and the law authorized the states to expand further their own exemptions." Mahon, p. 52.


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