We Did It To Ourselves

Joe Bethencourt mostly sings traditional American music. And sometimes songs with a message.


From Leslie Fish's new CD Lock And Load

Call Out the Posse - The Posse Comitatus Act in the 21st Century.

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Remember in the old Westerns; the sheriff at some point would need to chase a band of outlaws. To get enough deputies he would call out the posse. He would call on some town’s folk and swear them in as deputies and off they would go, and after suitable drama and a gunfight the outlaws would be dead or in jail. It’s a great plot device but it has its origin in reality. Posse comitatus is a part of the legal heritage we received from England. Until the development of professional police forces it was main means available to local law enforcement if a situation called for more manpower than the sheriff and limited number of full or part time deputies.

Since professional police forces handle law enforcement we now only hear the word posse used reference to the Posse Comitatus Act, the speaker saying the Army can’t be used for law enforcement. In view of the recent events surrounding Hurricane Katrina, and border enforcement for both drugs and immigration I think it is time for a review.


Origin

The term posse comitatus, literally translated as the “power of the county”, first appeared in English law in 1411 with the passage of a riot act calling for the sheriffs and justice of the peace together with the “poair de counte” to arrest rioters(13 Hen. 4, c.7 (1411)).” (ref 1)

Basically the Sheriff could call upon any available citizens to put down riots. This has some prior precedent in the practice of a “Hue and Cry” in English common law where able-bodied persons was obligated to help those being attacked by criminals if the victim cried for help. In England posse comitatus was generally separated from militia and the Army, it was an act of the civil government.

Posse comitatus came to the colonies with British settlement. In most places the Sheriff would call ordinary citizens as a posse. As it developed in the colonies the sheriff would call upon the available military force, the militia, to act as a posse comitatus. Colonial governors used regular forces when there were some in the colony as a posse comitatus. They would do this because using the militia or regulars brought with it organization, training, and equipment that would not be present by calling individuals. The Constitution calls for the Militia to be called out “to enforce laws.” When this happened the Militia had it’s police power as a posse comitatus. This was almost always an act of the state government. After several questions and disputes the Attorney General in 1854 ruled that a US Marshal could call on an Army unit in his jurisdiction as a posse comitatus. He could do could this without the consent or knowledge of the unit’s superiors or Washington. If the US Marshal needed to use a posse comitatus there would not be time to contact Washington. Since the Army was very small the opportunities to do this were minimal.

After the Civil war the Army was sent to the South to support reconstruction, and in the West the Army had a larger presence than before the war. It was determined that the local Sheriff could also call on the Army as a posse comitatus. The Army was often used as a posse comitatus and sometimes the local authorities abused the power. Because of the abuses Congress passed the Posse Comitatus Act, which prohibited law enforcement officers from using the Army as a posse comitatus. It did not prohibit the use of the Army for law enforcement; it placed the decision and responsibility to use the Army as a posse comitatus squarely on the shoulders of the President. (In 1956 the Air force was added.)


The Law

The text as amended is rather direct.

Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
TITLE 18 PART I CHAPTER 67 § 1385.

Title 18 is the federal criminal code. The person who is violating the law is a civilian official, who calls on and Army or Air Force unit as a posse comitatus with out clear authority of law. As the President is the Commander in Chief he is person who is authorized. No one else can except on clear delegation. The President can only make the decision in expressly authorized situations. The point of the law was to keep other officials from calling out the Army or Air Force as a posse comitatus and regulate the use, not to prevent the use of the Army and Air Force as a posse comitatus.

Title 10, governing the armed forces has a similar provision.

Restriction on direct participation by military personnel

The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.
TITLE 18 PART I CHAPTER 67 § 1385.


DOD uses the Title 10 text to extend the Posse Comitatus Act restrictions to the Navy and Marine Corp, and to place restrictions on the use of military assistance for law enforcement tighter than is required by the Posse Comitatus Act (Title18).


Using the armed forces a posse comitatus?

The Army and Air Force cannot be used except in cases and under circumstances expressly authorized by the Constitution or Act of Congress for Law enforcement. What are the "circumstances expressly authorized"?

The most obvious circumstance is not really an exception. The National Guard, when called out as a state militia, is not covered, but then it is operating as a state militia, not as a part of the Army. The call out of the National Guard for hurricane Katrina was as State Militia. This was the result of an interstate compact which is relatively new and which I discussed here

Another non-circumstance is the Stafford Act. This law governs federal support to states in a natural disaster. It is sometimes confused with posse comitatus because it authorizes the use of the armed forces. The law is very specific that it is not including federal support to local law enforcement.

The biggest “circumstance expressly authorized” is the Insurrection Act.

§ 331. Federal aid for State governments
Whenever there is an insurrections in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.
§ 332. Use of militia and armed forces to enforce Federal authority
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
§ 333. Interference with State and Federal law
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
§ 334. Proclamation to disperse
Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.
Title 10, Subtitle A, Part 1, Chapter 15

This Act is clearly for handling special situations. Insurrections, enforce Federal authority when it is “impracticable to enforce the laws . . . by the ordinary course of judicial proceedings”, or there is interference with the enforcement of Federal or state laws. The President has to issue a special proclamation. It is not an ordinary means of law enforcement.

Section 1 of #333 is directly concerned with 14th Amendment enforcement, and was the basis for President Eisenhower’s actions in Little Rock, Arkansas, in 1958, The rest of the Insurrection Act limits the presidents authority to enforcing Federal Law or acting on requests from State governments. This section allows the President to act without a request from the state government if there is 14th amendment issue. Other than this the Presidents authority is limited to enforcing federal laws or acting at the request of the state. The Little Rock incident of 1958 is often cited in question of why the President can’t use the Armed Forces restore order or enforce the law without a request from the state government, the answer being there usually isn’t a 14th amendment issue. During Hurricane Katrina it would have been illegal for the President to use the armed forces for law enforcement with out a request form the state except on federal property.

The biggest new exception has been laws allowing the use of the Armed forces in border drug operations. This has proved quite controversial because many do not see it as a proper use of the armed forces and others see it a logical extension of Armed forces or a way to provide this service without spending any extra money on law enforcement agencies. This has also created problems because of differences in police and military culture and procedures.

The armed forces can be used to support law enforcement actions without violating the posse comitatus Act if it does not search, seize or arrest anyone or anything. The provision of this type of support is common.

There are a number of minor exceptions, that allow military police to act a police on military reservations, and preventing the Posse Comitatus Act from baring Armed Forces members from testifying in court and similar technicalities.




Analysis

There are several problems/objections to the use of the military for law enforcement.

- The use of military force for ordinary law enforcement is repugnant to the idea of a democracy.

- It can provide a screen behind which political leaders can hide when enforcing unpopular policies. “The military did it, it’s not my fault.” ignoring that they requested the action. It was this type of abuse in the Reconstruction South that led to passing the Posse Comitatus Act.

- It blurs the distinction between ordinary situations and emergencies.

- It is common knee jerk reaction to problem to say, “Call out National Guard” without asking if that is appropriate to the situation, There needs to be a much more aggressive program of informing state and local officials of their roles, the law, the options available in an emergency. I know is this done, but some of the statements by officials after Hurricane Katrina especially in the outlying towns and parishes indicate these officials had no idea what they were talking about.

- The gradual increase in federal jurisdiction since the New Deal has greatly increased the issues where #’s 332 and 333 of the Insurrection Act could apply even if the states do not request assistance. While the expansion of Federal authority is often questioned, it is happening. It carries with it the possibility of the using the Armed Forces as a posse comitatus to enforce unpopular polices.

- While the skill sets needed for law enforcement and military action overlap there is in fact a difference. A military unit that concentrates on law enforcement will not be spending enough time on military activities to ensure it can go to war on short notice. If it concentrates on combat training it is not training for law enforcement. In the case of National Guard and Reserve units, they normally receive 38 days of training a year. Giving them an additional law enforcement mission is a major reduction of the time available for training for their military mission. For example,  National Guard units supporting the Border Patrol for annual training takes away 14 days while on the border and most of the rest of their training time will be spent preparing for this mission, taking the unit off line for it’s military mission.




Opinion

If it were my say, I would strengthen the Posse Comitatus Act, and related legislation, to limit non-emergency support and to require independent approval such as judicial warrent similar to a search warrent.

The use of police forces that have the appropriate training, equipment, and organizational culture for law enforcement actions is always best option.

If a federal law is so unpopular that the armed forces are needed for ordinary enforcement Congress should reexamine the utility of the law.

There is a very clear authorty in Federal Law (Title 42 Chapter 111) to provide law enforcement support to State and Local authorties. In most situations where one might consider military assistance to local governent there are civilian police agencies that are probally better qualified. The orginal reason for using the military as a posse comitatus is frequently supercedeed by better options.



Update: July 9th 2010

During the Katrina Hurricane aftermath the President was severely criticized for not using the Armed Forces for law enforcement when the state of Louisiana had not requested the support as required by the constitution and Insurrection Act. In 2006 this was amended to give the President this authority. The amendment was widely objected to and repealed in 2007. If it had stood this would have been a major breech in the federal nature of the Constitution.




References

1. The Posse Comitatus Act: A Resource Guide

2. Rand Corp - OVERVIEW OF THE POSSE COMITATUS ACT HTML link

3. Journal of Homeland Security commentary

4. Liberation from lawyers

5. Legal Aspects of Domestic Employment of the Army


Related Posts

The Unorganized Militia

The Unorganizd Militia II

Katrina - National Guard Assitance

Katrina - National Guard Assitance

As the events of Hurricane Katrina unfolded I noticed several things that seemed unusual to me. First is that National Guard troops seemed to be leaving their home states with out being federalized. This was first that National Guard from several states were staging in Tennessee to support operations in Alabama, Mississippi, and Louisiana. After Katrina made landfall the troops going to support were National Guard units from across the country. There was no news story of the National Guard being federalized. When the National Guard went into New Orleans it was under the command of the Chief of the National Guard Bureau, which one would normally assume is not an operational command position. My expectation was that the state National Guard would be federalized and reinforced with large numbers of Active Duty Federal troops. The Federal troops were mostly Coast Guard and Navy that came to the coast and units that were stationed in the area.

The National Guard is both a Militia of the State under the Constitution’s Milita clauses, and a Reserve of the Army under the power of Congress to raise an Army. This means that the National Guard can be called to state active duty as a militia of the state by the governor, called to federal active duty as the militia of the United States with the consent of the governor or ordered to active duty by the President as a reserve of the Army. If the National Guard was to leave it’s home state in an active status I thought it would have to be federalized. (Note: I discuss the history of the militia from a different angle here but the pertinent background is there.)

Thanks to Google I did a little research.

In the 1990’s the states and Congress agreed to the the Emergency Management Assistance Compact EMAC to provide a vehicle for states to assist each other in an emergency. (Pre-Katrina overview.) This compact was made on the iniative of several state governors under the authority of Section 10 Article I on the US Constitution, since compacts are passed as laws of the states that agree to them and by Congress they have the force of law at both state and federal levels. The law of the states that agree to the compact is that the governor will request National Guard support in an emergency from other states that are members of the compact, which by their own law must provide it. The troops remain on state active duty. The requesting state is responsible for funding (almost certain to be reimbursed by the federal government.) The loaned National Guard units have the same status as the requesting states National Guard, no Posse Comitatus Act and no federal supremacy doctrine. The largest previous use of National Guard under the compact was 800 Guardsman, mostly specialized units during last year’s hurricanes in Florida.

The Compact covers more than the National Guard. It can authorize all kinds of non-military assistance. This is important because what is often needed is not the military but professionals in the specialized fields of local government. News reports tell of support in police, fire, public health, medical areas and I'm sure many others. FEMA and other Federal agencies apparently have their disaster assistance programs coordinated with EMAC Compact.

This compact has been governing emergency assistance for ten years, and seems to have worked well for emergencies that required much less support. The thing that puts the Compact into operation is the request from the governor of the effected state. Mississippi and Alabma requested assistance 24 hours before the Katrina arrived. It is not clear from the news reports I have read when the Louisiana request was made, some reports suggest up to 48 hours after the levee broke. The news reports show that once the assistance was on the ground it worked well. There were a some lesser problems with implementation due to the size of the call up and key people at all levels not understanding their roles under EMAC. It appears there is a need for some better planning for large emergencies. There also needs to be a way to require key officials to be briefed and understand their roles in an emergency before it happens.



I think this is a good approach to emergency relief. It is a means to provide assistance to a state, which can be tailored to need, and without the complications of dual federal and state jurisdiction. It is completely in keeping with the Federal nature of the Republic, assistance can be provided with out stretching the Constitution. It should be improved not scrapped.

For more information do Google searches on EMAC National Guard, EMAC FEMA, EMAC Katrina, or EMAC with whatever other term you are interested in. eMac by itself will tell you all about Apple Computers.


NOTE: The Posse Comitatus Act governs and restricts the use of federal troops in law enforcement roles. The exception to the Posse Comitatus Act I and II that allows the President to put federal troops in a law enforcement role also requires a request from the state governor. Many other federal emergency assistance programs also need a request for the state governor to be implemented.

The Unorganizd Militia II

TM Lutas of Flit TM whose posts on the Unorganized Militia prompted writing my the previous post on the Unorganized Militia post sent an Email with some very pertinent comments.


I'm working through the source material right now but I think you haven't captured the reality of the thing. If the people are sovereign, they must, at some level, have the right to violence. I challenge you to construct a meaningful construction of sovereignty without it. At the same time, if we are not to have anarchy, such violence must be restricted and channeled in a reasonable way. I submit that the idea of an unorganized militia is an appropriate form for channeling and molding the necessary recognition that the people themselves have the right to do violence if they are to remain sovereign.

Thus it is not correct to say that the unorganized militia is not a part of the common law except insofar as the label itself seems to be of relatively recent vintage. The map is not the country and the label is not the thing itself. Sovereignty is meaningless without violence. Now normal people don't talk of such things on a regular basis. They are left between the lines, implicit and hopefully never used as there is no need. Those who tend to discuss this as a day to day affair tend, as a real world observation, to be obsessed nuts. That doesn't mean that they are in error, merely grossly counterproductive to their cause.

My wife doesn't generally bring up the topic of surgical removal of fingernails at mealtimes unless it is apropos of something that is mealtime conversation. That doesn't mean that she doesn't know how to do it or, when called for, will do it. Popular sovereignty and its attendant right to violence are similarly not for everyday conversation. It's also unrealistic to assume that government will be particularly eager to recognize the fact that it's not ultimately in charge in the US system.

The militia law, I would suggest, is a governmental attempt to restrain and channel this inherent right of a sovereign people to ultimately defend their lives, property, and liberty. Like a police choke hold, restraint in moderation is entirely of a different character than when it goes overboard, and results in death. There are rules for police choke holds and there are restrictions on the ability of the state to restrain the militia. In the US case, the regulation of the "choke hold" is in the text of the 2nd amendment, something that I find astounding that you did not include in your analysis. The entire bill of rights was written to prevent a government run amok from running roughshod over the rights of the people. Any assertion that militia are only creatures of the state have to at least confront the 2nd amendment. You have not done so. You may wish to correct that.




It would seem to me that reality of the thing is there are two issues. They are somewhat entwined because of their history but they should be considered separately. First is the right of people, individually and collectively to defend themselves. The second issue is what is the Militia? I think TM's disagreement is over the second issue. We seem to agree on the importance of the first.

If the people are sovereign, they must, at some level, have the right to violence. . . At the same time, if we are not to have anarchy, such violence must be restricted and channeled in a reasonable way.

Correct. They form a government. If the country is invaded and government does not or is incapable of defense, the citizens have the right to rise as a levee en masse. If the government becomes oppressive they have the sovereign right to remove it. Neither of which depend on the Militia, and exist even when there is not a militia.

The first function of government is the collective defense of its population against violence, foreign and domestic. And ironically, since governments end up with a virtual monopoly on the instruments of coercion, a government can be the biggest threat to the people it is supposed to protect.

The militia never included every one, for example women, but women also have the right to self-defense. Exercising rights to self-defense does not require a militia. TM sent me a link (see comments in the orgianal post) about Condolizza Rice’s father and friends patrolling their neighborhoods with personal weapons to protect against racist violence. They were individuals not a militia. But they were exercising basic human rights.

This is also why the Second Amendment right to keep and bear arms is not dependent on the militia, women have the right to keep and bear arms. The reference to a militia in the Second Amendment is preamble to state a reason why the right is important. Also since originally the Bill of Rights applied to the federal government, it made it impossible for the Federal Government to made an end run around the States duty to regulate the militia by infringing directly on the right to keep and bear.

The protection of basic human rights is dependent on a “democratic” system with a solid respect for the rule of law, that diffuses political power so that no one person or group can get in position to abuse rights. Related to this is a diffusion of the means of governmental coercion, i.e. state and local police instead of a national police force so that no one can control every thing. The militia was a good example of this, even though in theory a single military force its wide local administration made it impossible to use the militia to enforce any laws without wide spread consent. And a reason why, even though the classic militia structures are outdated, a major portion of our defense should rest with the National Guard and Reserves.





The militia is a means for the government to fulfill its duty to protect its citizens.

The militia law, I would suggest, is a governmental attempt to restrain and channel this inherent right of a sovereign people to ultimately defend their lives, property, and liberty.

In addition, I would rather suggest that the Militia system was brought to the colonies as the only economically feasible means of providing for defense. It still remains part of the Governments repertoire to “execute the Laws . . ., suppress Insurrections and repel Invasions.”

it is not correct to say that the unorganized militia is not a part of the common law except insofar as the label itself seems to be of relatively recent vintage. The map is not the country and the label is not the thing itself.

If it can be established that the thing itself existed, this would be a good point. I know of no examples of an “English” militia that exists separately from statutory or executive authority. Except for the American Unorganized Militia I know of no example where people who do not meet for training and have no structure are by design classed as a militia. Militias were always established by an action of the King, a legislature, a Lord or who had the right, or a person acting on delegated authority. Remember the Mutiny Act that made it illegal to raise an army without the permission of Parliament. This was a constitutional/statutory restriction on the Monarchs exclusive power to establish military forces. Up until then this was a purely Royal prerogative provided he had the money. Of course the Militia is not a standing army, even today if a group attempted to establish a militia in England without authority from Parliament they would be prosecuted under the successors to the Mutiny Act.

The Unorganized milita is an administrative category to account for the difference between a constitution that assumes a univeral militia and the fact that there is only a need for a small number of persons training in units. Simply the Constitution reserves to the States the Appointment of the Officers, and the Authority of training. The unorganized milita is a part of the milita that does not have officers appointed or authorty for training. The Congress and legislature provide laws for the calling of the milita. Only two or three states have a law that governns calling the Unorganized Milita, basically, report as individuals at the time and place the governor designates. Without officers, training or a valid way to call them out, the Unorganized Milita is incapable of fufilling the funcitions TM would like. The militia movement organizations cannot be classed as a real milita since the state did not appoint their officers or authorize training.



I think the confusion arises because in our early history there was:

1) A strong distrust of a standing army, given the manner in which the Parliementary and Royal goverments administered, used, and abused the standing army in the 1600’s this was a very reasonable opnion. An opnion reinforced by the Crown’s arbitary use of the Army in the colonies (where the Mutiny Act restrictions did not apply) just prior to the Revolution. Thus the Militia became the model defense organization in the popular mind.

2) The very entwined role of the local militia company in the life of a village blurred the distinction between the governmental establishment of the militia and the nrights of citizens.

3) The American Revolution was a revolt of the Colonies/States against the Crown. Since the militias were controled by the state legislatures, the calling the milita was a natural option. The action of the State Governments in calling the Militia be came confused with indivduals standing up to tyranee.

4) since it is not a topic of every day convesation it is easy for mistaken ideas to take hold.

While entwined in actual use in American history the basic human right of collective self-defense and the organization of the militia are separate things. In the nornal course of things the people exercise their "soverign right to violence" to "ultimately defend their lives, property, and liberty" by forming a governments. In our case the government established by consititutional/statuatory law the militia as one means of exercising this right.

The Unorganized Militia

When the United States was established the founding fathers assumed that the militia would be the backbone of our defense. While it has not worked out that way, the militia clauses are still in the Constitution and law. Many people have a poor understanding what of the militia is, especially the Unorganized Militia. Many assume that the Unorganized Militia is some sort of Common Law structure that exists independent of governmental action, and that consequently citizens can on their own initiative organize themselves as a militia, because they are members of the Unorganized Militia. This understanding has given rise to the so called:”Militia Movement” a series of organizations that have formed themselves to be “militia”. However, this does not agree with the historical record, not is it consistant with intent of the authors of the constitution and laws governing the milita.


To understand the constitution's provisions for providing the common defense, reviewing them is a good place to start.

The US Constitution provides for a Militia. The Congress may establish laws:

Article 2 section 8
Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Clause 16: 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;

These clauses assumes that every one knows what a militia is, thus there was no need to provide a definition.

This is different than the Army and Air Force which Congress established on the authority of

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Title 10 Section 311 b) 2) of the US Code is the enabling statute:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, [NOTE: members of the regular services] under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. b) The classes of the militia are - (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

It does not state duties or functions of the Unorganized Milita, which must be determined from the legislative history and case law regarding the Militia.

However state laws sometimes provide for three classes of militia. For example:

9‑8‑102 (c ) The Wyoming code defines the States Militia as:

a) The militia of the state is divided into the organized militia and the unorganized militia.

(b) The organized militia consists of the following:

(i) Such elements of the land and air forces of the national guard of the United States as are allocated to the state by the president, the secretary of defense or the secretary of the army or the air force and accepted by the state, hereinafter to be known as the Wyoming national guard; and

(ii) Wyoming state guard forces, when organized.

(c) The unorganized militia consists of all persons liable to serve in the militia but not commissioned or enlisted in the organized militia.

Twenty-five states have State Guard forces.

The Constitution and Federal and State Law authorize a militia, provides for two types of organized Militia and an Unorganized Militia. But there are no detailed definitions in the constitution or law. To see how we got here and what the founders and Congress intended by the different types of militia, we need to look at their historical development.


The Royal Charters for the first Colonies gave them the right to establish militias. These were a continuation of the English Militia system. They were always organized. For each town a company was established and for each county a regiment. Officers were appointed, usually selected by election by unit members, but the commission was from the Governor. Every able-bodied white male between the ages of 16 and 60 was a member, required to provide himself with a suitable musket and equipment. (In modern terms we could say that the Colony was providing for defense by imposing unfunded mandates on the local government and citizens.). After independence the militia continued on the authorization of the state constitutions. After the US Constitution came into effect Congress passed the Militia Act of 1792 providing a common framework for the militia and calling the militia into Federal service. Under this law the President could call a states militia into the service of the United States for 90 days. But this required the permission of the governor, and the militia could not be deployed outside the US. Except for the 90 day requirement these were considered implicit constitutional requirements. When longer terms of service in wartime were required, the President called for volunteers by state who were mustered into the Army (Clause 12 above) as Volunteers. Volunteer army units were often based on militia units.


The company met for muster four times a year. Sometimes a regimental muster would be substituted. If there was a danger of foreign or indian attack the muster could be monthly or in a few cases weekly. If someone did not attend they had to pay a small fine. If they did not have the proper equipment they paid a fine. Muster day consisted of close order drill, musket drill, and maybe some skirmishing practice in the morning. Target practice was seldom done - the militiaman had to pay for their own ammunition. The afternoons were usually a town picnic paid for by the fines of no shows. Families came, and a good time was had by all. If there was a serious danger of attack the afternoon would also be drill and the fines would pay for target practice.

These local Militia companies served several purposes. They provided a rudiment of training, served as a home guard if the town was attacked, and provided a basis for recruiting volunteer forces to help protect other parts of the colony. When a volunteer force was needed, each company would be assigned a quota. If volunteers could not meet the quota the Captain would select who would be drafted to meet the quota. Theoretically the whole unit could be drafted. The few times militia units were drafted for any thing other than home guard duty were usually a disaster (i.e Bladensburg in 1814 and the burning of Washington.)

As the country became more settled, musters, attendance, and even the collection of fines became infrequent and eventually stopped. By the 1840's states were amending their laws to end the muster requirement. Commissions were granted for a time in these non-drilling regiments as a matter of social prestige, after the Civil War so many community leaders had held war service volunteer commissions that a militia commission provided no prestige and the practice was gradually discontinued.

From colonial times there was a different type of militia unit. Often called "volunteer militia." These were completely volunteer organizations that were first organized to provide the high cost units such as artillery and cavalry, often composed of the more prosperous members of the community who provided their own horses and purchased the cannon out of pocket. Later infantry units were organized. From the 1850’s or earlier these were the only militia units that received training. These units provided the backbone of the units that were called up in major wars and are the ancestors of the current National Guard. But because they were militia they could not be called without the permission of the state governor. If volunteer forces were needed for a major war the unit would vote on whether or not to respond, sometimes they voted no. In some places they were excessively involved in local politics. Training was of varying quality. (To confuse the issue some general militia units over time evolved in to volunteer units.)

This is the status at about 1900. On paper, all adult males were members of the militia, but only a small number actually were part of units that met and trained. The laws governing mobilization assumed the original concept of a universal militia. The militia laws also restricted the militia from any useful deployment. The wartime calling of volunteer units was a partial solution not suited to creating a modern Army in wartime. During the first 20 years the last century there were a number of reforms moving the Army out the 19th century into the 20th, The militia reform was an essential part.

The Dick Act (1903) and the 1916 and 1920 National Defense Acts created the basis for the modern Reserve and National Guard units. National Guard units (state militia) received federal funding if they met federal standards and were available for call up. Reserves for the Army that were not part of the state militia were authorized. All able bodied males who are not in regular services or the organized militia are by default members of the unorganized militia. The part of the organized militia enrolled in the National Guard is funded by the federal government, and administered by the states. States could from other militia units at their own expense.

The 1916 National Defense act established the Unorganized Militia is an inactive administrative category to account for the discrepancy between constitutional provision that assumes all able bodied adult males are members of the militia and the fact that current militia organizations are voluntary and only have a small minority of citizens as members.

The 1920 Act made clear that the National Guard was both a state militia (clause 16 above) so it could be called by the Governor as militia for local emergencies, and a reserve of the Army (clause 12 above) so that the President could order it to active duty as a reserve of the Army without the consent of the state governor.

This basic system still governs the organization of the National Guard and Reserves.

The "Militia Movement" is based on the the assumption that the community based milita units described above were created by the local community as an exercise of the rights of the members of the community. In fact (even though largely self administered) they were created on the authorty by the colonial/state governments on the basis of a Royal/Constitutional grant of authority.

Summary:

The “Militia Movement” organizations cannot be real militia since they were not established by law, these are at best gun clubs who like to wear camouflage on the weekends, and at worst violations of the neutrality and other laws.

The concept of an Unorganized Militia cannot be a common law right of citizens to establish their own militias. The militia of all sorts was always established as a delegated Royal prerogative and after 1776 as a legislative/constitutional act of the States.

Since statutory law established the Unorganized Militia in 1916, it cannot be a part of the inherited English Common Law from “time immemorial”.


See Unorganized Militia II


Selected references:

This is an article published in 1917 explaining the 1916 National Defence Act. It has a very good historical overview and what intent of Congress in passing the act. It is especially valuable because it was written before the current controversies.

This is a good modern summery of the militia laws. Note the article says the exact opposite of what one would expect from “Solider of Fortune Magazine” and from the expectations of the target demographic of the that magazine.


See also Arms for empire;: A military history of the British colonies in North America, 1607-1763, Douglas Edward Leach
and
History of the United States Army, Russell Frank Weigley

NOTE: This post started by expanding on comments I made in TM Lutas’s Flit TM (link in side bar) discussing the Unorganized Militia. The post sort of grew and morphed into something rather different.