MILITIA - HISTORY AND LAW FAQ 4/6 version 1.01 July, 1995 3.48 What happened as opposition
MILITIA - HISTORY AND LAW FAQ 4/6
3.48 What happened as opposition to the compulsory militia grew? Did the
individual states take action?
A. "In 1831 Delaware abolished its [militia] system altogether.
Massachusetts eliminated compulsory service in 1840, followed by
Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846,
Missouri in 1847, and New Hampshire in 1851. Indiana classified
its militia according to age in 1840, and exempted all but the
young men from service. New Jersey withdrew the right to imprison
a man for failure to pay a militia fine in 1844; Iowa did the same
in 1846, Michigan in 1850, and California in 1856."
- Mahon , p. 83
3.49 Weren't there people who thought the abolition of the compulsory
militia went against the spirit of the framers of the U.S.
Constitution and the ideals of the Republic?
A. Yes, but the militia that had existed from 1792 was much less than the
intended ideal of its supporters. Over time, those who opposed the
compulsory militia elected leaders who agreed with this view. But each
state created its own exemptions in response to its own political climate.
3.50 When did the term "unorganized militia" originate?
A. The term "unorganized" did not begin to emerge until the 1830s and
1840s, when a massive wave of opposition destroyed the compulsory militia
system. Nobody wanted to serve in the militia. State governors and
legislators wanted to be able to accommodate this desire, but they were
bound by the 1792 Uniform Militia Act, which stated that every white male
aged 18-45 would be in the militia.
However, The 1792 Uniform Militia Act explicitly allowed the states to
determine who was exempt from militia service. So, states divided their
militias into two sections, the "organized" militia and the "unorganized"
militia. In this way, the letter, though not the spirit, of the 1792 law
could be complied with. However, only the "organized" militia would have
responsibilities. These people would be volunteers, people who actually
wanted to perform militia service; they gradually evolved into the
National Guard. These people would have uniforms, guns, and would drill,
review and encamp.
The other people were the people who did NOT want to be in the militia.
Accordingly, members of the "unorganized" militia were NOT supposed to
perform any duty or carry any weapons or have any responsibilities. All
that would remain was the nominal authority of the state over them for
military manpower purposes. This group of people had no militia
responsibilities at all (in some areas they had to register, like for the
draft today). In this way states could flaunt the spirit of the 1792
Uniform Militia Act, while nominally keeping to the letter of it.
The term "unorganized militia" was kept in use in subsequent decades as a
statutory "reminder" that the state could still obligate its citizens to
perform military duty, should it ever want them to. Eventually, U.S. law
in the early twentieth century picked up this same usage for the same
reason: by creating the "unorganized militia," the United States could
guarantee usage of this manpower for military purposes, should the
(remote) need ever arise.
But being in the "unorganized militia" conveys to you no rights, only the
possibility of responsibilities. All it means is that you belong to that
class of the militia which has no responsibilities. Being in the militia
allows you to do not a single thing, because only the state and federal
governments can create (working together) active militia systems. To
date, their interest in doing so has largely concentrated on the National
Again, let me emphasize that there is not a single right guaranteed to you
by virtue of your being in the militia. Here I am excepting the right to
keep and bear arms, not to necessarily agree or disagree with any
particular interpretation of the Second Amendment, but rather to
avoid gun control issues which are irrelevant to this issue. [MP]
3.51 Who says that the term "unorganized militia" was a way for states
to avoid the intent of the 1792 Uniform Militia Act?
A. I [MP] say so having studied the rise of opposition to the state
militias in the early 19th century, which eventually resulted in this ruse
in most Northern states, and attempts to do the same thing in many
Southern states. The whole point of creating an unorganized militia was so
that the majority of citizens would have no militia responsibilities at all.
This is not a big secret; it is well known among militia historians. [MP]
3.52 In 1860, the state legislators of Massachusetts wanted to amend
the state militia law so as to allow blacks to serve in the state
militia. The governor vetoed the law. Why?
A. The following excerpts are taken from the January 13, 1860, issue
of _The Liberator_, an abolitionist newspaper edited by William Lloyd
Garrison. Included are excerpts from the governor's veto message and
the advisory opinion of the Massachusetts Supreme Court.
The governor's veto message addresses the 10th Amendment and the militia,
while the Supreme Court determined that the Federal government had
the power to determine who is and who is not in the militia.
Explanatory comments by MP are in brackets .
From the veto message of of Gov. Nathaniel P. Banks upon a bill
entitled 'An Act for Revising and Consolidating the General Statutes of
the Comonwealth' of Massachusetts:
"In the controversy upon the adoption of the Federal Constitution in this,
as in other States, very earnest debate arose upon the question, what
powers were reserved to the States, and the Constitution was finally
adopted by the requisite number of States, with an understanding that the
provisions afterwards embodied in Article Tenth of Amendments should be
incorporated into the Constitution, to wit: 'The powers not delegated to
the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.' The division
of powers, therefore, is perfectly clear so far as the subject is
concerned. That which is not granted to the General Government, nor
incident to the powers granted, is reserved to the States, unless
"The 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
officers and the training the militia according to the discipline
prescribed by Congress,' is one of the powers expressly conceded to the
Federal government in the first article, eighth section of the
Constitution of the United States.
"The power granted in express terms to the Federal government by this
section of the Constitution is that of 'organizing, arming and
disciplining the militia;' that reserved to the States is the appointment
of officers, and the authority of training the militia, 'according to the
discipline prescribed by Congress.' The power to organize includes that of
determining what classes of person shall be so organized; and this has
been determined by an act of Congress approved May 8, 1792, entitled 'An
act more effectually to provide for the mutual defence, by establishing an
uniform militia throughout the United States.' [better known as the
Uniform Militia Act of 1792]
"The persons who, by these provisions of the Constitution and Legislature
of the United States, are to be organized, armed and disciplined as an
uniform militia throughout the United States, are 'each and every free
able-bodied white male citizen of the respective States, resident therein,
who is or shall be of the age of 18 years, and under the age of 40
years.'[this was an error, perhaps on the part of the type-compositor; the
upper age limit was 45 years] It is not, in my judgement, within the power
of the Legislature to change this basis of enrollment, or enlarge or
diminish the classes of men embraced in this organization of the militia.
It is not sufficient answer to say that, in changing the phraseology of
the statute of the United States in the enactment of our own militia laws,
we still leave public officers, in the enrollment of the militia, to
follow the laws of the United States, without committing the people of
this State to a recognition of distinctions between men that are not
acceptable. The militia is a national institution. [This may be hard to
follow without understanding the circumstances; the Massachusetts
legislature had proposed changing Massachusetts militia law to include
blacks, but the 1792 U.S. law specified only whites would be in the
militia. Legislators thus tried to "rephrase" the provision of the 1792
U.S. law in such a way that blacks could be permitted. Nathaniel Banks
would have none of this.]
"In all that pertains to organization, arming, or disciplining the militia,
our laws are but a republication of the laws of the United States, for the
information and instruction of the citizens of this State; and if in this
republication we misrepresent the law, we lead them into innumerable and
remediless difficulties and constantly embarrass the administration of our
laws. Still less it is to be urged, that assuming a recent decision of
the Supreme Court of the United States [Dred Scott] to be rash, that
certain persons are not citizens, and therefore their exclusion need not
be expressed or implied in our re-enactment of the militia laws. The
statutes of the Commonwealth are yet free from the most distant
recognition of the doctrines of that decision, and I trust may forever so
"For these reasons, I believe the changes proposed in the basis of
enrollment to be palpably in contravention of constitutional law, and that
they cannot be executed by this department of the government without an
infringement of the Constitution which I have sworn to support, I have
thought it an imperative duty to withhold Executive approval--and I
therefore return the Bill to the House in which it originated, that it may
be considered by the Legislature, conformably to the provisions of the
Constitution of this state.
"Under ordinary circumstances, I should not hesitate, in a case like the
present, to act upon my own judgment; but inasmuch as a disapproval of the
legislative proposition to which I have referred imposes upon me the
necessity of rejecting, without discrimination, every statute approved by
my predecessors, from the foundation of the government, and every
amendment proposed by the present Legislature, I have thought it to be my
duty, not only to give to the subject the most serious consideration, but
to seek direction from the high legal authorities which the Constitution
and laws enable me to consult. [by vetoing this measure, Banks was vetoing
the entire Revised Statutes]
"It is unnecessary for me to ask of the Legislature a candid consideration
of these able State papers. They cannot be too carefully considered by
legislators or by the people. It is unnecessary for me to call the
attention of the Legislature, in view of the rugged paths of national life
upon which, too obviously, we are entering, to the expediency of
maintaining the institution of the militia, and perpetuating the harmony
of feeling and interest of its members [a volunteer militia by this time],
with the principles and institutions of the Government, of which as
citizens and soldiers they are a cheap support.
"Nor is it necessary to enlarge upon the expediency, in every consideration
of public policy, of a constant and faithful adherence to constitutional
obligations. We can present no more reliable evidence of strength than
the fact, that we can maintain our own privileges without invaindg the
rights of others; and for a State inflexibly determined to submit to
nothing wrong, there is no safer rule of action than to ask nothing that
is not right.
"I requested the Attorney General, therefore, to prepare an opinion upon
two propositions, which I have the honor to transmit to the Legislature,
and subsequently, upon the request of the Governor and Council, the
Supreme Court [of Massachusetts] submitted an opinion upon the same
questions, [see below]...
"The assessors of the several cities and towns, are annually required, in
the month of May, to make a list of persons liable to enrollment [this is
the "unorganized militia"] ; to place a certified copy thereof in the
hands of the clerks of their respective towns and cities, and to transmit
returns of the militia thus enrolled to the Adjutant General. A certified
copy of the returns is annually transmitted to the Government at
Washington by the Governor of this Commonwealth.
"The militia thus enrolled are liable to be called into active service at
any moment, in case of war, of invasion, to prevent invasion, for the
suppression of riots and to aid civil officers in the execution of the
laws of the Commonwealth. It seems to me to be a public wrong of the
highest character, by an incorrect statement of the law, to mislead civil
officers in the performance of their duties, or to require of the
Governnor of the Commonwealth to transmit to the Department of War an
enrollment palpably in conflict with the laws of the United States. [this
is a huge rationalization]
Nathaniel P. Banks." [MP]
3.53 Why did the Massachusetts Supreme Court say in 1859 that the
state could not allow blacks to serve in the militia?
A. From the advisory opinion of the Massachusetts Supreme Court,
Opinions of the Justices 80 Massachusett 614, 80 Gray 614.
The meaning of an advisory opinion is discussed earlier at 3.43.
The opinion says that states cannot change the membership of the militia
so as to let blacks serve in the militia. It also provides an excellent
legal history of the militia from colonial times to the eve of the Civil
War, as seen by non-historians in 1859.
Many of the issues raised about the historical and modern day status of
the militia are discussed. For example, this Court clearly viewed that
there was only one institution of the militia, that the militia had always
acted under government control, and it discusses (yet again) the meaning of
the 'provide for the organizing, arming and disciplining' clause of the
Constitution and how that clause allows the federal government to say
that members of the militia are between 18 and 45 years of age
and not 20 and 50 years of age.
"Interrogatories [Questions] Propounded by order of the Governor
and Council to the Supreme Judicial Court:
"Whether the Legislature of this Commonwealth can constitutionally
provide for the enrollment in the militia of any persons other than those
enumerated in the Act of Congress, approved May 8, 1792, entitled, 'An Act
more effectually to provide for the national defence, by establishing an
uniform militia throughout the United States'?
"Whether the aforesaid Act of Congress, as to all matters therein
provided for, and except as amended by subsequent Acts, has such force in
this Commonwealth, independently of or notwithstanding any State
legislation, that all officers under the State government, civil and
military, are bound by its provisions? ...
"We are first, as preliminary to any direct answer to the inquisitions,
to consider what the militia was, as understood in the Constitution and
laws, both of this commonwealth [Massachusetts] and of the United States.
It was an institution, not only theoretically known, but practically
adopted and carried into effect, in all the colonies and provinces before
the Revolution, and even before the formation of a congress for any
purpose. The utility and capabilities of this institution for military
purposes had been put to a severe test by the events of the Revolution,
and were well understood before either of these constitutions was
"Prior to the Revolution, the establishment and control of this institution
was within the jurisdiction of the respective colonial and provincial
governments, because these were the only local governments, acting directly
upon the rights and interests of the inhabitants, within their respective
territorial limits. It was constituted by designating, setting apart,
and putting in military array, under suitable military officers, all
the ablebodied male inhabitants of the province, with certain specified
exceptions, and was held in readiness upon certain exigencies, and in
the manner provided by law, to act under military orders as a military
armed force. It was the constitution of a citizen soldiery, in
contradistinction to a regular or standing army. Such having been the
jurisdiction of the several provincial governments, it naturally devolved
upon the respective state governments after the Declaration of Independence,
and during the early years of the revolutionary war. During that period,
all were acting under the articles of confederation, which was rather a
league between the states for mutual defence, than a government acting
directly upon the people of these states.
[The Court discusses the adoption of the U.S. Constitution and its
creation of two level of governments and then turns to discuss the
power over the militia under the Constitution.]
"...The establishment of a militia was manifestly intended to be
effected by arranging the ablebodied men in each and all the states
in military array, arming and placing then under suitable officers,
but without forming them into a regular standing army, to be ready
as exigency should require, to defend and protect the rights of all,
whether placed under the administration of the local [state] or
general [federal] government, to be called out by either in the
manner and for the purposes determined by the Constitution and laws of
either. It was one and the same militia, for both purposes, under
one uniform organization and discipline, and to be commanded by the
same officers. Were it otherwise, were the general and the state
governments to have their own militia, the results would have been
that there would be, within the bosom of each state, a large embodied
military force, not by its organization amenable to the laws or subject
to the orders of the state government; and also a similar force, on
which the general government would have no right to call for aid,to
repel invasion, suppress insurrection, or execute the laws; a state
of things, not only rendering each to a great extent inefficient and
powerless, but also entirely destructive of that harmony and union
which were intended to characterize the combined actions of both
governments. We find therefore that the functions of both are called
into activity, in constituting this military force and carrying it
into practical operation.
"The Constitution of the United States having charged the general
government with the administration of the foreign relations of the whole
Union, and the military defence of the whole, provides, [article 1,
section 8,) 'That Congress shall have the power to provide for calling
forth the militia to execute the laws of the Union, suppress insurrection,
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.'
"Organizing' obviously includes the power of determining who shall compose
the body known as the militia. The general principle is, that a militia
shall consist of the able-bodied male citizens. But this description is
too vague and indefinite to be laid down as a practical rule; it requires
a provision of positive law to ascertain the exact age, which shall be
eemed neither too young nor too old to come within the description. One
body of legislators might think the suitable ages to be from 18 to 19,
others from 16 to 30 or 40, others from 20 to 50. Here the power is given
to the general government to fix the age precisely, and thereby to put an
end to doubt and uncertainty; and the power to determine who shall compose
the militia, when executed, equally determines who shall not be embraced
in it, because all not selected are necessarily excluded.
"The question upon the construction of this provision of the Constitution
is, whether this power to determine who shall compose the militia is
exclusive. And we are of opinion that it is. A power when vested in the
general government is not only exclusive when it is so declared in terms,
or when the State is prohibited from the exercise of the like power, but
also when the exercise of the same power by the State is superceded, and
necessarily impracticable and impossible after its exercise by the general
government. For instance, when the general government have exercised
their power to establish a uniform system of bankruptcy, that is, laws for
sequestering and administering the estate of a living insolvent debtor;
when one set of commissioners and assignees of such estate have taken
possession of property, with power to sell and dispose of it, and
distribute the proceeds, another set of officers, under another law,
cannot take and dispose of the same property. The one power is
necessarily repugnant to the other; if one is paramount, the other is
void. We think the present case is similar. The general government
having authority to determine who all and who may not compose the militia,
and having so determined the State government has no legal authority to
prescribe a different enrollment.
"This power was carried into execution by the act of Congress of May,
1792, being an 'Act more effectually to provide for the national defence,
by establishing an uniform militia throughout the United States'. This act
specially directs who shall be, and by necessary implication, who may not
be enrolled in the militia. This is strengthened by a provision, that
each State may by law exempt persons embraced in the class for enrollment,
according as the peculiar form and particular organization of its separate
government may require; but there is no such provision for adding to the
class to be enrolled.
"We are therefore of opinion that the Legislature of the Commonwealth
cannot constitutionally provide for the enrollment in the militia of any
persons other than those enumerated in the act of Congress of May, 1792,
"We do not intend, by the foregoing opinion, to exclude the existence of a
power in the State, to provide by law for arming and equipping other
bodies of men for special service of keeping guard, and making defence,
under special exigencies or otherwise, in any case not coming within the
prohibition of that clause in the Constitution, article 1, section 10,
which withholds from the State the power 'to keep troops;' but such
bodies, however armed or organized could not be deemed any part of 'The
Militia,' as contemplated and understood in the Constitution and laws of
Massachusetts and of the United States, and, as we understand, in the
question propounded for our consideration.
"Nor is this question, in our opinion, affected by the article 2 of the
Amendments of the Constitution of the following tenor: '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.'
"This, like similar provisions in our own declaration of rights, declares
a great general right, leaving it for other more specific constitutional
provision or to legislation to provide for the preservation and practical
security of such right, and for influencing and governing the judgment and
conscience of all legislators and magistrates, who are thus required to
recognize and respect such rights.
"In answer to the second question proposed, we are of opinion that the Act
of Congress above cited, as to all matters therein provided for, except so
far as it may have been changed by independent acts, has such force in
this Commonwealth, independently of and notwithstanding any State
legislation, that all officers under the State government, civil and
military, are bound by its provisions.
George T. Bigelow
Ebenezer R. Hoar
Boston, December 23, 1859."
3.54 How extensive was the volunteer militia movement up to the beginning
of the civil war?
A. There were definitely thousands (and thousands) of volunteer companies
before the Civil War, if we take a broad view of what before the Civil War
means (say 1830-1861). However, the lifespan of a typical volunteer
company was about three to four years before it disbanded. As a result, at
no particular time was there a huge number of volunteer companies. This
includes 1861. A typical volunteer militia company would have between 30
and 60 members. Generally, except for a few really popular ones, the
longer companies were around, the smaller they were, due to attrition.
Moreover, there were more volunteer companies in 1861 than, say, five years
earlier, because a number of states, anticipating a sectional conflict, had
begun to beef up their state militias (again, this is state activity, not
private activity). [MP]
3.55 What was the role of the militia in the Civil War on the Union Side?
To what degree were these militia units volunteer units as opposed
to the enrolled militia?
A. "Just before the Civil War began, the army of the United States
consisted of no more than 1,108 officers and 15,259 enlisted men.
Hardly anyone realized that mass war had come for the first time
to the United States and that the Union Army alone would expand to
2,500,000 men and the Confederate Army to somewhere around 1,000,000..
"At first of course, the belligerents had to look to the militia...
Random sampling of the Union states indicates poor quality. Iowa
officials flatly admitted that their militia was in poor condition.
Maine, with around 63,000 men enrolled, could field at most 1,200.
Michigan, with 109,000 on the muster rolls [these always included
the authorized volunteer companies], could assemble in a short
time no more than 1,241 men in twenty-eight companies. The total
militia force of New Hampshire consisted of the adjutant-general
alone...There were 19,000 men in the organized militia of New
York, but only 8,000 muskets for them. Similarly, Ohio could
only find 1,984 shoulder weapons for an alleged twenty-three
regiments...Connecticut, Massachusetts, and Rhode Island were
exceptions to this shabby story as they had throughout the
years attended to their militias...
"Since Congress was not in session when the Confederates fired
on Fort Sumter, the President had no legal way to enlarge the
the fighting force except to call the state militias into
federal service. Accordingly, on April 15, 1861 he summoned 75,000
militiamen apportioned among the states according to the size
of their militias...
"Old volunteer units made up 40 percent of the 93,000 militiamen
who answered the president's call. New Jersey was able to send
the first fully organized brigade to Washington because the
constituent companies of its four regiments were old volunteer
units. Soon, four Massachusetts regiments arrived to keep the
Confederate forces out of the nation's capital. One of these,
the 5th Massachusetts, had one company that had been constituted
in 1804, as well as one that was brand-new. The 7th New York
was able to mobilize and reach Washington promptly because it
had experience stretching back to 1824. The Irish 69th, arriving
early, had experience since 1849... The early defenders of the
capital remained to take part in the First Battle of Bull Run in
July 1861, after which their ninety days were up and they went home...
"Aside from their response to the April call for militia, the
old volunteer units contributed only a tiny percent of the total
Union force during the war."
-Mahon, pp. 97-101.
3.56 What about the Confederate side?
A. The state of the militia at the start of the war was even worse than the
Union side. The Confederate Government specifically created a
Confederate Army that was distinct from all the state militias. Most
Confederate soldiers, did not provide their own weapons (they were mostly
imported from overseas, manufactured in the Confederacy, or captured from
the North). [MP]
3.56A ow do you explain all the units named for those who raised them.
Weren't these independent military companies?
"Leading citizens" in the South and North raised companies and regiments.
However,that activity, except in the very first couple of weeks,
basically went on under the authority of the Union and Confederate
3.57 What happened to the militia during Reconstruction?
A. "Following the Civil War, the militia was dead in spite of statutes
to the contrary. Indeed, during most of the Reconstruction years the
volunteer militia was dormant, except in ex-Confederate states. There
the provisional governors had permission to constitute militia ...
[These militia were] virtually the old Confederate Army down to the
worn gray uniforms left over from the Civil War. A Confederate militia
was intolerable to the Radical Republicans; so when they regained
control of Congress they attached a rider to the Army Appropriations Act
of March 2, 1867, that finally prohibited the formation of military
units in the once Confederate states. President Johnson, rather than
see soldiers go without pay, signed the bill but attached to it a sharp
dissent that it was unconstitutional to deny a state the right to have
"It soon became obvious that the state governments, forming under the
radical regime, had to have more support than the scattered units of the
regular army could provide. Accordingly, two years and one day after
prohibiting militia in the rebel states, Congress on March 2, 1869,
reallowed it. As far back as March 1862, Congress had stricken "white"
from the basic militia statute, so the Radical Republicans intended to
make the southern militia predominantly black..."
"The southern militia units, usually referred to as Negro militia, were
not all black. There were some white units, but the two colors did not
"To the white people of the South and the Dunning school of historians
of Reconstruction, the Negro militia was only made up of swaggering bullies.
The whites opted, therefore, to use unbridled violence if necessary to
eliminate it. Two hundred and ninety white rifle companies sprang up
at one time in South Carolina alone. From one place or another, they
found weapons. Although they lacked official sanction, these companies
had behind them the determination of the society to establish white
supremacy at all cost. Actual clashes between black and white units were
rare, but bloodshot was not. White riflemen ambushed and killed black
officers and white supporters of the Negro militia. These assassinations
often took place in broad daylight with witnesses, but prosecutions
were non-existent. This way, in the end, the leadership that supported
the black militia was either killed or intimidated. When the Democrats
returned to power in state after state of the ex-Confederacy, they
terminated the black militia, disarmed the blacks, and excluded them
from any role in the militia."
- Mahon pp. 108-109.
3.58 Why did support for the state militia increase in 1877?
A. "As of the late 1870's all men in the United States between
the ages of 18 and 45 were obliged to serve in the militia and
to arm and equip themselves for that purpose...Only a few took
that seriously...Within a dozen years after the Civil War, however,
increasing numbers of men began to take an interest in the militia.
They formed units, drilled, and bought uniforms and arms. They
were the nucleus of the National Guard. Very early they turned
to political activity.
"The National Guard Association was formed to seek a new militia
law from Congress...The object was to have the Guard recognized in
federal law as the "organized militia." This would distinguish Guard
members from the vast majority of men between 18 and 45 years who
were legally classified as militia but who did not actually serve --
that is, were "unorganized". The Guard, which was the militia in
fact, would be acknowledged as such in law. Not until 1903 was the
Guard able to achieve this its major political goal. ln the
meantime, it thrived with the help from the states.
"...Both observers in the 1880's and subsequent students have identified
the labor riots of 1877 as the cause of the Guard's sudden growth.
Unquestionably, industrial violence provided much of the impetus. Fear
of violence by "anarchists, internationalist, and nihilists" led state
and local governments to strengthen the militia forces. Development
of the Guard began and proceeded fastest in the populous, industrial
states of the North- Massachusetts, Connecticut, New York, Pennsylvania,
Ohio and Illinois. In addition to the appropriations from state and
local governments, the Guard received substantial private funds from
"It would be a mistake to attribute growth entirely to the interests of
business groups and state governments in preservation of domestic order...
A good deal of spontaneous martial enthusiasm help to swell Guard
units in the post-Civil War era. "
- Martha Derthick, The National Guard in Politics, pp. 15-17.
3.59 How did Peter J. Dunne get out of jury duty in 1879?
A. He joined the Illinois National Guard under a statute that
exempted Guardsmen from serving. But he was convicted and fined
by a lower court of illegally avoiding jury duty. The case was then
taken directly to the Illinois Supreme Court, and became the case
of Dunne v. Illinois, 94 Illinois 120 (1879) a case often cited,
always favorably, in later militia cases.
The issue was the overall validity of the Illinois Militia law. The Court
dealt with many objections, but found the law valid and in doing so
discussed the argument that the law was invalid because essentially it
only dealt with the "organized militia". At 136:
"It is no valid objection to this act of the legislature that it does not
require the entire militia of the state [males 18-45] to be enrolled as
"active militia". Counsel do not wish to be understood as claiming
that no militia law is valid unless it provides that each and every
male inhabitant of the specified age should at all times be armed and
engaged in drilling and maneuvering. But the argument made is,
that the performance of military service in times of peace can not
be legally confirned to a select corps consisting of a limited
number of volunteers to the exclusion of all other able-bodied male
residents of the state. The argument admits of several conclusive
answers that may be shortly stated: 1. It is a matter dependent on
the wisdom of Congress whether it will provide for arming and
disciplining the entire body of the militia of the United States.
2. The citizen is not entitled under any law, State or Federal,
to demand as a matter of right that arms shall be placed in his
hands; and, 3. It is with the legislative judgement of what number
the active militia of the State shall consist, depending on the
exigency that makes such organization necessary."
And then the Court discussed whether or not the "organized militia" were
militia, or whether they were "troops" which were prohibited the states
in time of peace. At p. 138:
"An objection of broader scope ...is that, the active militia organized
under the statute comes within the prohibition of the second clause,
section 10, article 1 of the Constitution of the United States, which
withholds from the States the power to keep "troops" in times of peace.
Our understanding is, the organization of the active militia of the
State conforms exactly to the definitions usually given of militia.
Lexicographers and others define the militia, and the common
understanding is, to be 'a body of armed citizens, trained
to military duty, who may be called out in certain cases, but
may not be kept on service like standing armies, in time of
peace'. That is the case as to the active militia of this state. The
men comprising it come from the body of the militia, and when not
engaged at stated periods in drilling and other exercises, they
return to their usual avocations, as is usual with militia,
and are subject to call when the public exigencies demand it. Such
an organization, no matter by what name it may be designated, comes
within no definition of "troops," as the word is used in the
Constitution. The word "troops" conveys to the mind the idea of an
armed body of soldiers, whose sole occupation is war or service,
answering to the regular army. The organization of the active
militia of the State bears no likeness to such a body of men. It is
simply a domestic force as distinguished from regular "troops" and
is only liable to be called into service when the exigencies of the
State make it necessary."
So Peter J. Dunne, didn't have to pay the fine. This was important to
the health of the National Guard for "avoidance of jury duty
was a major incentive for many Guard recruits". [Derthick, p.19]
3.60 How did the 1903 Dick Act come about?
A. There was a wave of army reform and the National Guard Association
ensured that the National Guard would survive.
During the Spanish-American War the Army bypassed the state militias by
not allowing militia units to participate; only volunteer regiments.
Although individual militiamen could join a volunteer unit (and some
larger militia units joined en masse), militia units themselves did not
participate. Angry National Guard lobbyists didn't want that ever to
happen again and lobbied for what became the Dick Act in 1903, and later
lobbied for the National Defense Act of 1916.[MP]
"In sum, the provisions of the bill [Dick bill, 1903] -
essentially a compromise --eliminated once and for all
the archaic Militia law of 1792. It divided American
male citizenry into two classes: the National Guard
(organized militia) and the Reserve Militia [this is
the 1903 term for unorganized militia] in which were
lumped all other male citizens between the ages of 18 and
45. National Guard organization, armament, and discipline
were to be idential with those of the Federal Army...
as to the Reserve Militia, this legal fiction at least
perpetuated the original colonial concept of universal
- R. Ernest Dupuy, _The National Guard: A compact history_
3.61 Sections of the 1903 Dick Act
The 1903 Militia Act, known as the "Dick Act", was named after
Charles Dick, Congressman from Ohio, president of the National Guard
Association and Chairman of the House Committee on the Militia .
Section 1. "MILITIA - COMPOSITION OF"
"That the militia shall consist of every able-bodied male citizen of the
respective states...who is more than 18 and less than 45 years of age and
shall be divided into two classes, the organized militia, to be known as
the National Guard of the State, Territory, or District of Columbia, or by
such other designations as may be given them by the laws of the respective
states or territories, and the remainder to be known as the Reserve
Section2. "PERSONS EXEMPT" "That the vice-president of the United
States..pilots... and all persons who are exempted by the laws of the
respective States or territories shall be exempted from militia duty,
without regard to age..."
3.62 Sections of the 1916 National Defense Act
"Section 57. COMPOSITION OF THE MILITIA: The militia of the United States
shall consist of all able-bodied male citizens of the United States.. who
shall be more than 18 years of age and...not more than 45 years of age,
and said militia shall be divided into 3 classes, the National Guard, the
Naval Militia, and the Unorganized militia.
"Section 59. EXEMPTIONS FROM DUTY: The Vice-president of the united states
...pilots.. shall be exempt from militia duty without regard to age..."
[note that the states can no longer specify exemptions]
"Section 60. ORGANIZATION OF NATIONAL GUARD UNITS"...The President may
prescribe the particular unit or units as to branch of service or arm of
service, to be maintained n in each state, territory, or the District of
Columbia, in order to secure a force, which, when combined, shall form
complete higher tactical units".
3.63 How was the militia reorganized in 1933?
A.The "unorganized militia" can exist because the 1933 amendment to the
National Defense Act of 1916 divided the "militia" into several different
groups, one of which was the National Guard of the United States, which
consisted of specially designated National Guard units that received
special attention by the federal government and could be mobilized as part
of the Army (this force resting on both the Army and militia clauses of
the Constitution), another of which was the National Guard of the "several
States," which consisted of all other National Guard units that received
any federal funding, which rested solely on the militia clause of the
constitution, and a third category, which consists of all other state
units that the states might wish to raise on their own, without any
federal aid whatsoever. Needless to say, the states didn't want to pay
for such forces all by themselves, and so the "unorganized militia"
remains unorganized [MP]
3.64 How does one become a member of the National Guard today?
A. Federal statutes have created a dual enlistment
program, under which state National Guard enlistees are, at the
time of their enlistment, simultaneously enlisted in the National
Guard of the United States, a reserve component of the national
E-Mail Fredric L. Rice / The Skeptic Tank