Organizing the Militia

                    The topic of discussion for this Constitutional Monday comes from Article I.8.16:  "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…."  This clause in the Constitution lays upon Congress the authority and responsibility to equip, arm, train, and control the state militia if and when they are called to serve the United States.

                    Many of the Founders were concerned about the idea of having a standing army in times of peace.  They considered the militia - an army of the people - to be the best guardian of freedom.  They meant for the militia to protect the people from aggression from their fellow Americans, from an oppressive government, and from attacks by foreign nations.

                    "The militia of a state is actually the official army of the state.  It consists of all able-bodied male citizens who are between the ages of eighteen and forty-five and are not already members of the armed forces of the United States.  Under the National Defense Act of 1916, the Congress organized the militia of each state into special reserve units of the Army, Navy, and eventually the Coast Guard, Marine Corps, and Air Force.  These constitute the National Guard or the organized militia of the state.  All other men between the ages of eighteen and forty-five inclusive are members of the unorganized militia.  They are subject to call by both the governor of the state and the Congress of the United States if circumstances warrant it."  (See W. Cleon Skousen in The Making of America:  The Substance and Meaning of the Constitution, pp. 450-451.

                    From the time of the Founders to the present day, there have been many demands on the state militias, and federal control of the militias continued to encroach upon state control.  "The transition of the Nation Guard into a national reserve reached its completion during the Cold War.  Despite the existence of a large regular army, Guard units were included in most war plans.  But with federal funding, which covered about ninety-five percent of the costs, came federal control.  While governors continued to call up the Guard to quell domestic disturbances and to aid in disaster relief, they discovered that their control was trumped by federal demands….

                    "With the end of the Cold War, the National Guard's role as a national reserve was called into question.  As a result of the terrorist attacks of September 11, 2001, some observers believed that the Guard could return to a domestic constabulary role.  One the other hand, extensive military commitments abroad have required the Guard to remain an active element in the United States armed forces."  (See Mackubin Owens  in The Heritage Guide to the Constitution, p. 142.)

                    More information about the militia an be found here.  

                    "Under the National Defense Act of 1916, the militia, which hitherto had been an almost purely state institution, was brought under the control of the National Government.  The term `militia of the United States' was defined to comprehend `all able-bodied male citizens of the United States and all other able-bodied males who have … declared their intention to become citizens of the United States,' between the ages of eighteen and forty-five.  The act reorganized the National Guard, determined its size in proportion to the population of the several States, required that all enlistments be for `three years in service and three years in reserve,' limited the appointment of officers to those who `shall have successfully passed such tests as to … physical, moral and professional fitness as the President shall prescribe,' and authorized the President in certain emergencies to `draft into the military service of the United States to serve therein for the period of the war unless sooner discharged, any or all members of the National Guard and National Guard Reserve,' who thereupon should `stand discharged from the militia.'

                    "The Militia clauses do not constrain Congress in raising and supporting a national army.  The Court has approved the system of `dual enlistment,' under which persons enlisted in state militia (National Guard) units simultaneously enlist in the National Guard of the United States, and, when called to active duty in the federal service, are relieved of their status in the state militia.  Consequently, the restrictions in the first militia clause have no application to the federalized National Guard; there is no constitutional requirement that state governors hold a veto power over federal duty training conducted outside the United States or that a national emergency be declared before such training may take place."