a United States Militia
Outpost of Freedom
December 3, 2010
Often I see a suggestion that the federal government should enact
statutes protecting the militia, perhaps even organizing and equipping
it. Well, to some extent that is provided for in the Constitution.
Article I, Section 8, clause 15:
Congress shall have the Power to.... To provide for calling forth the
Militia to execute the Laws of the Union, suppress Insurrections and
So, it can be called forth for certain purposes.
Article I, Section 8, clause 16:
Congress shall have the Power to.... 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
Organizing, arming, and disciplining are also included, extended even to
governing, while in time of service to the country. Significantly,
however, the appointment of officers and training is left to the States.
This is important because it show the chain of command being to the
State not the United States, (except as necessary when in service to the
United States). The officers know who writes their check, and, the
members are trained by local people, though in accordance with the
discipline provided by Congress. The primary allegiance to the State is
Article II, Section 2, clause 1:
The President shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when called
into the actual Service of the United States; ...
Here is the exception mentioned above. Only while in service to the
country is the allegiance to the State even subordinated.
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
Though State can also mean a country, in the context of the
Constitution, it is one of the members of the Union created by the
Constitution. Here, quite clearly, the ability for the State to a free
in its nature is assured by the only explanation of the need for the
Militia -- the security of a free State.
The following was enacted in 1916, with the exception of the provision
for "female members of the National Guard (1973) and "unorganized
militia" description (1958). Exceptions (those not in the militia) are
provided for in the next Section of the Code, but are irrelevant to this
10 U.S.C. § 311: Militia: composition and classes
(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, 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.
So, let us look at what effect this Statute (United States Code
provision) has on the entire concept of Militia.
Let's suppose that the United States wanted to call forth the Militia,
prior to 1916. They would requisition form the states a quota to be
filled. The States, in their capacity, could refuse, if they wanted, to
fill the quota. I'm not sure where this would take us, since I am not
aware of any instance where that happened, but, perhaps, that is why it
never happened -- that the federal government knew its limits and would
not dare call the Militia under circumstances that it felt might
generate a refusal.
Whether the State would charge you with desertion, for refusal to answer
a call up, or not, is to be considered, though if there seemed to be an
objection to the call up, it would seem that public sympathy would be
support of such refusal -- in a free State.
Suppose, however, that the United States assumed a senior role, and, in
accordance with the Statute above, called forth the militia -- not under
the State Militia, rather, under the United States Militia.
First, they could call who they wanted. The individual selection would
be out of the hands of the State. Are you on a list that might be
Next, they could assign you to duty wherever they chose to send you,
within the United States, unless they opted to go even further. Ever
been to Atka, Alaska?
Suppose that you refuse the call up. Well, depending on what the
President has decided as to the severity of the circumstances that
warranted a call up, you would be guilty of desertion and subject to
punishment of either imprisonment, or, execution.
So, now, all who favor a United States Militia, please stand up.
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