The second amendment of the Constitution of the United States...Bill of Rights...
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
The tenth amendment of the Constitution of the United States...Bill of Rights...
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.
Do you know where I am going yet?...
Since the President's call of the organized militia, or National Guard, of the several states into the service of the United States on June 18th
last, I have frequently represented the military officers made respondents in the numerous habeas corpus proceedings brought on various grounds of
alleged invalidity, usually minority, for the release of some member of the forces subjected to the call. I have found among eminent counsel and
judges alike a lack of definite and discriminating comprehension, frankly acknowledged, as to what our militia is, and its relation, when called into
federal service, to the Army of the United States. Indeed, more than once I was asked from the bench, "What is the militia anyway?" The gist of
what I have attempted to say in response to such questions may be of general professional interest, especially in this moment of reawakened interest
in our military establishment.
The militia is not a federal army even when employed in federal service. The Army of the United States is exclusively a federal institution,
raised, maintained, and governed directly and exclusively by the federal power under the following constitutional grants:
These powers of Congress are plenary and exclusive, and the armies resulting from their exercise are the Armies of the United States. Such armies
may be raised as Congress sees fit, by voluntary enlistment or compulsory draft, and they may exist as a regular establishment standing ready and
available for service at all times and in all places, or temporarily for more or less definite periods and purposes. The Armies of the United States
known to us in the course of our history are the Regular Army, the Volunteer Army, and, as applying to those raised compulsorily, the Drafted Army.
The classification is in no sense descriptive or scientific. The Regular Army is the professional, standing establishment, continuously existing in
peace and war, and, with reference to the method of obtaining the services of the citizens composing it, is as much a volunteer army as the Volunteer
Army itself; the Volunteer Army is the army which Congress habitually raises for time of war to supplement the Regular Army, its existence is limited
to the duration of the war, and it is composed of volunteers, hence the designation which would apply with equal appropriateness to the regular
establishment; the Drafted Army, composed of all whose services are compelled instead of volunteers. These armies exist solely according to the will
of Congress and are available to perform the national will whenever and wherever ordered, without limitation as to place or otherwise. From such
army, or armies, the Constitution sharply differentiates the militia.
The militia is not a part of the "land forces" of the United States which Congress may govern and regulate under clause 14, section 8, Article 1,
of the Constitution, for special provision is made for the government of such part of it as may be employed in the service of the United States in
clause 16 of the same section. Neither is the militia a part of the "land forces" of the United States as the term is used in the Fifth Amendment,
which excepts cases arising in such forces from the requirement of grand jury proceedings; for, in addition, the exception is expressly made
applicable to the militia, when in actual service, in time of war or public danger. It is not a part of the Army of the United States of which the
Constitution makes the President Commander-in-Chief; for the same clause expressly makes him Commander-in-Chief also of "the militia of the
several States when called into the actual service of the United States." It is primarily a state and citizen soldiery rather than a national and
professional soldiery. It is primarily a state institution. The United States has only a limited control over it for the limited purposes expressed by
the Constitution. It cannot be used, therefore, as a national soldiery for the general military purposes. Its federal use as such is limited to
home service. The course of legislation and judicial decision has always marked the distinction.
The above describes the National Guard,...the only legal Constitutional Militia.
Now The New National Guard...
This new force created by the National Defense Act of 1916 must be considered in its relation to (1) the militia, and (2) the Federal Army. The
term National Guard denominating this new force must not be confused with the same term heretofore commonly adopted by the several states and
recognized by the Dick bill.
The militia, thus legislatively defined, was divided by the Dick bill into (1) Organized Militia, that part of the militia arranged in the military
organizations and known as the National Guard of the State, Territory or the District of Columbia, or as otherwise denominated by local law; and (2)
Reserve Militia, consisting of all militia not so organized. The corresponding terminology of the National Defense Act is (1) the National Guard, and
(2) the Unorganized Militia.
But "the National Guard" under the National Defense Act is something more than was the National Guard, or organized militia, of the several
states under the Dick bill.
Under that bill National Guard, or any other local designation, was simply alter nomen for organized militia; but the
National Guard under the recent National Defense Act consists of the organized militia of the several states not in that single, simple status as
such, but with an additional federal status required of it whereby it assumes new and onerous obligations to render military service to the Federal
, the exact scope and extent of which are not easily determined from the language of the act; that is, the National Guard under the Hay
bill has the status of the National Guard under the Dick bill, plus the new status of so-called federalization created by the new bill. The
National Guard, then, is organized militia placed in a special federal status.
The grave question is: Whence came the federal power to impose the
new and additional status of the militia of the several states? Is the source of authority to be found in the "power" to provide for organizing,
arming and disciplining the militia, or in the power "to raise and support armies?" Or is it not to be found at all? Is the National Guard still
but the militia of the several states subject only to the limited constitutional use of the federal government, or is it indeed an army of the United
States over which the power of Congress is unlimited?
The question is fundamental, and though it received scant consideration in Congress, it may
be expected to persist, if not to plague. I do no more than suggest the query with its train of constitutional difficulties, whichever way it be
looked at. The lawyer disposed to consider it will encounter a host of difficulties in endeavoring to keep the authority exercised by Congress within
the scope of its power over the militia as such, and a task almost or quite as strenuous in attempting to reconcile what Congress did with what it can
do under its power to raise armies. The act is prickly with doubt, and it is not over-cautious to say that it will be a long time before judicial
authority will have shown the way of handling it with assurance.
Now you have to know what I am suggesting here...
Why do we have thousands and thousands of National Guardsmen in Iraq and Afganistan? Why are they on extended duty? Why are they working for the US
Government and Military oversea's especially since the war has been declared over a long time ago?
So if the fact is that the National Guard is the only legal militia, and who's purpose is constitutionally defined as you know it's true purpose,
why are they in active army duty tied and by command of the commander in chief?
This is from the Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, Ninety-Seventh Congress,
Second Session, February 1982, page 11.
"The militia refers to a concept of a universally armed people, not to any specifically organized unit. When the framers referred to the
equivalent of our National Guard, they uniformly used the term 'select militia' and distinguished this from 'militia'".
"Debates over the Constitution constantly referred to organized militia units as a threat to freedom comparable to that of a standing army,
and stressed that such organized units did not constitute, and indeed were philosophically opposed to, the concept of a militia. That the National
Guard is not the militia referred to in the Second Amendment is even clearer today. Congress has organized the National Guard under its power to raise
and support armies and not its power to provide for organizing, arming, and disciplining the militia. (House Resolution Report No. 141, Seventy-Third
Congress, First Session, February 5th, 1933.) This Congress chose to do, in the interest of organizing reserve military units which were not limited
in deployment by the strictures of our power over the constitutional militia, which can be called forth only 'to execute the Laws of the Union,
suppress Insurrections and repel Invasions'. The modern National Guard was specifically intended to avoid status as the constitutional militia, a
distinction recognized by 10 United States Code, Section 311, Subsection (a)."
What, am I kidding ?!!
The United States military has a purpose to protect our interests in defense of and beyond our border.
The Militia had purpose to protect against invasion, and protect the states rights against federal tyranny.
If the Current National Guard is an arm of the Federal Government, than you would think the Constitution provides the states to build and 'regulate'
a new Militia.
Now our military is spread all over the world, so much so that when Iraq was invaded, the National Guard was called up for FEDERAL duty in Iraq.
Now just suppose that the Federal Government becomes deviant and the Militia's services are needed (putting it mildly)?
Will the Militia be available for their duties?
Let us wonder who will protect the US land from invasion?
The Constitutional Militia?
Well guess again,...NATO!
US citizens are now exposed to the potential of unbridled tyranny. Unless a 'currently' illegal militia were to be formed.
US citizens are now prone to invasion. US citizens are now at the mercy of NATO for security.
Yes you could look at this as whimsical nondeterminism.
But in reality any new major attack in America will usher in full government control, as well as a NATO influx of armies, as the President would be
required to ask for NATO help prior to him losing his sovereign nation to the aggressors.
My title to this topic, was a bit leading, but after reading this, do you not think the sarcasm was relevent?
a little more related reading....
Does everybody realize that if 911 were to happen now, or if the US were invaded, or the government were to become tyrannical, there is nothing that
this part of the diluted, re-defined, and ignored sections of the Constitution can do to help us.
The army designed to be here for the citizens by the states, is no longer doing their job, and have 'given' their services illegally to the Federal
Given illegally?...absalutely, becouse in 1933 the Militia should have reacted to protect the best interests of the citizens and the states.
(and no, please do not send your resume's, as this is mearly a Constitutional discussion arguement ..
[Edited on 24-4-2004 by smirkley]