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

• Author: Romano, John F.

1. 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.

2. STATE MILITIAS AND THE CONSTITUTION

   1. 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.

   2. 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.

      1. The Militia is Necessary to Curb the Need for, and the Power of the Standing Army

         Those papers that espouse the first argument above generally begin by pointing out that some sort of military will be required to defend the nation. For example, in Federalist 8, Alexander Hamilton states that "[s]afety from external danger is the most powerful director of national conduct." (19) In Federalist 24, Hamilton argues that "savage tribes" as well as the British and Spanish pose threats that must be protected against. (20) It is even conceded that force will sometimes be needed simply to govern. Likely referring to Shays' Rebellion, (21) Hamilton writes in Federalist 28 that "the idea of governing at all times by the simple force of law ... has no place but in the reveries of those political doctors, whose sagacity disdains the admonitions of experimental instruction." (22)

         After establishing this, these papers argue that it would be unwise to create a large standing army. In Federalist 8, Hamilton describes standing armies as having "a tendency to destroy [a nation's] civil and political rights." (23) The authors of the Federalist Papers conclude, however, that this is not a legitimate fear under the Constitution. (24) Because the Constitution provides for state militias, they argue, there will never be a need for a large standing army. In Federalist 26, Hamilton writes that a large army will not be needed because of "the aid to be derived from the militia, which ought always to be counted upon, as a valuable and powerful auxiliary." (25)

         In Federalist 29 and 46, Hamilton and James Madison, respectively, also argue that a standing army need not be feared because the militia itself could be used to defend the people from any oppression that the army might inflict. Hamilton writes, "[I]f circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens." (26) Madison is even more forceful in his comments. In Federalist 46, he argues that any standing army created by the federal government would be opposed by a "half a million [] citizens with arms in their hands" which would "form[] a barrier against the enterprises of ambition more insurmountable than any which a simple government of any form can admit of." (27)

         Although the prospect of state militias protecting the freedom of the people from the standing army of the United States might sound incredible and completely unnecessary to the modern reader, a look at the history and prevailing notions at the time of the framing reveal this to be a major concern. (28) Fear of standing armies can be traced to ancient times. Julius Caesar, upon crossing the river Rubicon with his army, broke an ancient law which forbade armies from crossing that barrier and entering Italy. (29) After the Roman Empire was established, standing armies which protected the borders from invasions became anathema to the rule of the emperor, and thus these armies were separated into small groups so as to disperse their power. (30) In more modern times, all Englishmen would be aware of the English Civil War that had occurred in the mid-1600's. After King Charles I raised an army and unsuccessfully stormed Parliament, war broke out. Eventually Oliver Cromwell seized the military power, purged Parliament of dissenters, and named himself "Lord Protector." (31) After Cromwell's death, an army simply marched on London and installed Charles II as King of England. (32) The problem of standing armies in England would not be resolved until 1689, when William and Mary peacefully gained control of England and agreed not to raise a standing army without the consent of Parliament. (33)

         This concern also found itself into the political philosophy of the time. In his Second Treatise of Government, John Locke writes extensively about the need for a government that relies on the "consent of the governed" and which has declared laws and rules that are known by, and applicable to, all persons. (34) This form of government is contrasted with tyranny, which Locke defines as "the exercise of power beyond right, which no body can have a right to." (35) Thus Locke argues that a government which exceeds its bounds may be rightly opposed by the people. (36) Similarly, in his On...