State militias and the United States: changed responsibilites for a new era

Air Force Law Review, Wntr, 2005 by John F. Romano

I. INTRODUCTION

The Constitution of the United States was established, in part, to "insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." (1) Written over two hundred years ago, the Constitution seeks to achieve these goals in ways that frequently reflect the times of a bygone era. Perhaps no other aspect of this document and the plan of government it established is more indicative of the unique time period in which it was drafted than those provisions that concern themselves with state militias and the presence of a standing army. (2) Although these provisions generated a great deal of debate at the time, (3) the rationale behind them is largely meaningless to modern Americans. (4) In fact, as will be discussed in this article, the present day organization and responsibilities of the National Guard, the modern equivalent of a state militia, directly contravene the principles and rationales of the framers. (5)

Part I of this article will discuss the various provisions in the Constitution and other documents of the United States dealing with state militias. It will also discuss the arguments made by the framers espousing the constitutional theory behind these provisions, as well as the history and contemporaneous thoughts regarding these institutions. Part II will explore the evolution of the militia in American history and analyze this evolution in light of the constitutional underpinnings of its existence. This article will conclude that state militias, while serving an integral purpose in modern American society, no longer fulfill their purpose as originally planned in the Constitution.

II. STATE MILITIAS AND THE CONSTITUTION

A. Militias, Armies, and the Texts of United States Documents

The Constitution makes mention of militias in two separate provisions--one relating to the powers of Congress and the other to the powers of the President. In the former, in what are known as the militia clauses, (6) the Constitution details the specific powers of Congress and the limitations on that power as regards state militias. Article I, section 8, clause 15 states that Congress shall have the power "[t]o provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." (7) Article I, section 8, clause 16 provides that Congress shall have the power of "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." (8) In order to better understand these limitations, they must be contrasted with Congress's power as regards the Army, which is stated in Article I, section 8, clause 12. That provision simply states, "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." (9) While the latter limitation does serve to limit Congress's ability to fund a large standing army, unlike as in the militia clauses there is no limitation on Congress's ability to use that army. (10)

The second mention of the militia occurs in Article II, which details the powers of the President. Section 2 states that "[t]he 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." (11)

Militias are also explicitly mentioned in the Second Amendment to the Constitution. That amendment states, "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." (12)

Integral to understanding the constitutional role of state militias is a comprehension of how other military issues are treated in the Constitution and other state papers. For example, although the Constitution allows Congress to raise an army, the earlier Articles of Confederation relied on the states to provide all land forces. (13) Similarly, the Declaration of Independence lists several military issues as grievances against the King. It states that he "has kept among us, in time of peace, standing armies, without the consent of our legislatures," and that he has "affected to render the military independent of, and superior to, the civil power." (14) These criticisms of military use and power can also be seen in the Bill of Rights. The Third Amendment prohibits the quartering of soldiers (15) and the Fifth Amendment explicitly places the rule of civil law above military might. (16) Although these provisions quite clearly indicate the mindset of the framers, a look at the arguments in the Federalist Papers further elucidates the theories at work.

B. The Constitutional Theory--"The Federalist Papers"

The authors of the Federalist Papers discuss militias and standing armies in several of the papers. These papers espouse two main arguments regarding these institutions and the requirement that both be present in the Constitution. (17) The first argument is that standing armies pose a threat to liberty, and that militias will serve as a bulwark to this threat. The second, somewhat contradictory argument, (18) is that militias are ineffectual and cannot be relied upon to furnish for the common defense.