Constitution Post: Organizing The Militia

“The Congress shall have 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 authority of training the militia according to the discipline prescribed by Congress…” Article 1, Section 8, Clause 16 of the Constitution.

The militia, as defined in one of our last Constitution posts, was “a body of citizens organized for military service.”  Many of the framers of the Constitution were troubled at the thought of a standing army in times of peace, fearing that a standing army would become too powerful.  The militia on the other hand, comprised of ordinary citizens, was to be our nation’s only defense against foreign and domestic powers.  As Patrick Henry stated in the Virginia ratifying convention, “the militia is our ultimate safety.  We can have no security without it.”  In the founding era, without the militia we would have had no military establishment.

The Continental Army was established in June 14, 1775 in response to hostilities against Great Britain.  After the American War for Independence, which lasted from 1775-1783, the Continental Army was disbanded.  State militias became our nation’s only defense, with the exception of a regiment whose job was to guard the western frontier and a single battery of artillery to guard the arsenal at West Point. However, because of continued conflict with the Native Americans, it soon became necessary to form a regular army.  Originally very small, the regular army was expanded after the Battle of the Wabash in 1791 when the need for a much larger defense became clearer.  The army was then christened the Legion of the United States.  A few years later in 1796, the Legion of the United States was renamed the United States Army.

Control over the militia is divided between Congress and the States; reserving to the states the right to appoint its officers and train them, while the right to organize and arm the militia is reserved for Congress.  If the militia is called into national service, Congress governs and pays for them.

On May 2,1792 Congress passed the Militia Act, which enabled the President to call up and take command of the militia “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe.”  Before this act was passed, the Constitution allowed for Congress to call forth the militia, but at the time it was impossible for the President to do so even in the crisis of imminent invasion.  This act additionally allowed for the President to call the militia into federal service whenever the laws of the land were opposed or the execution of them hindered.  The President’s authority in both of these cases however were to be terminated at the end of two years.  At this time, the question of “state versus federal control” was still undecided.

Just six days after passing the first Militia Act, Congress passed a second act, which provided for the organization of the militia and required all able-bodied white men from the ages of 18 to 45 enroll.  This was later amended in the Militia Act of 1862 which allowed for the service of African-American men.  Some men were exempt from this enrollment if their occupation was viewed as necessary to the well-being of the nation.  These included stagecoach drivers, congressmen and ferryboat men.

The states continued to supply the U.S. Army with volunteer soldiers when the army had to be expanded, as was the case during the Mexican War of 1846-1848, and the American Civil War of 1861-1865.  After the Civil War, the militia emerged as the National Guard.  The Militia Act of 1903, also known as the Dick Act, repealed the previous Militia Acts of 1792 and separated the militia into two parts. These two parts were the organized militia or National Guard, and a reserve militia of able-bodied men from the ages of 17-45.  This act readdressed the circumstances under which the National Guard could be federalized, as well as established funding for equipment and training for the Guard.  In response to this, the National Guard began to take steps to meet the same requirements imposed on the regular army as far as training, education and readiness were concerned.  As a result of this Act, the federal government gained considerable control over the National Guard.  The President was authorized to call the Guard for up to nine months to repel invasion, enforce federal laws, or suppress rebellion.  Federal authorities however were not permitted to order the National Guard to serve outside the United States.  This however, and the nine month service limit were dropped in 1908, when the act was amended.  The National Defense Act of 1916 further federalized the militia by empowering the War Department to enact uniform enlistment contracts and officer commissioning requirements for the Guard.  Guardsmen were now required to take both state and federal oaths of office.  In addition the law replaced the federal subsidy with an annual budget to provide for the majority of the National Guard’s expenses.  The army now includes both the United States regular army and the National Guard.


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