Chuck Dougherty
excerpted from: Chuck Dougherty, The Minutemen, the National Guard and the Private Militia Movement:Will the Real Militia Please Stand Up? , 28 John Marshall Law Review 959, 962-970 (Summer 1995) (195
footnotes)
The well-known minutemen of the American revolution were typical members of the eighteenth-century militia.
Many today consider the National Guard, the modern organized militia, to be the minutemen's complete
twentieth-century counterpart. However, those eighteenth-century militiamen bear little resemblance to the
federally- equipped, highly-trained members of today's National Guard. This Part will trace the changes that have
taken place in the militia since colonial times.
A. The Colonial Militias
The great majority of colonists arriving in America during the seventeenth century had no experience as soldiers.
Yet owing to the small British military presence of the time, the colonists soon found the need to establish a
military force. They drew from their knowledge of the militia system in England to develop their own military
forces. The resulting colonial militia laws required every able-bodied male citizen to participate and to provide his
own arms. Militia control was very localized, often with individual towns having autonomous command systems.
Additionally, the colonies placed relatively short training requirements upon their militiamen: as little as four days
of training per year.
The colonies did little to change their militias until just prior to the Revolutionary War. When the British
attempted to disarm the American populace during 1774-75, citizens formed private militias that were independent
of the royal governors' control. With the outbreak of war, the colonial militias composed the bulk of the armies that
eventually won independence. The experiences of the Revolutionary War had instilled most Americans with great
confidence toward their militias and distrust of standing armies. Many concluded that a standing army was the tool
of an absolutist government and that the militia was the proper means for a free people to defend against such a
regime. This belief heavily influenced the debates surrounding the drafting and ratification of the United States
Constitution.
B. The Constitutional Debates
Following the war, the United States reduced its standing army to only a handful of men, entrusting the state
militias with the nation's defense. The Articles of Confederation, which served as the plan of the United States
government prior to the Constitution's ratification, required each state to maintain a well- armed militia. The
Articles allowed Congress to form a standing army only with the consent of nine of the thirteen states. Such
weaknesses in the federal government led to the Constitutional Convention of 1787, at which delegates sought to
form a more effective governmental system. Two major camps arose among the delegates at the Convention:
Federalists and Anti- Federalists. The Federalists, who argued for a powerful federal government, wanted nearly
complete federal control of the militia. The Anti-Federalists, who strove to maintain substantial power in the state
governments, feared any federal control over their state militias.
The Anti-Federalists opposed federal control of the militia for three reasons. First, they feared that the national
government would turn the militia into an instrument of oppression toward the states. Second, they were concerned
that if the federal government neglected its militia duties, the militia would cease to be an effective force for the
states. Third, they feared that if the Constitution gave the federal government the power to arm the militia, it might
prohibit the states from doing the same.
These concerns over control of the militia were tied to the militia's perceived purposes; both factions understood
the term "militia" to mean more than just a military force for national defense. Rather, the drafters believed the
militia served three purposes. First, the militia served in place of a standing army to resist foreign aggression.
Second, the militia served as an internal police force for the states. Third, following the establishment of the
federal government, the militia served to resist or deter the use of a federal standing army against the states. The
eighteenth-century militia was well structured and equipped to fulfill each of these three purposes.
The Constitution's drafters hoped that the militia would remain the nation's primary means of defense against
foreign aggression. Considering the development of military tactics and technology of the time, the state militias
were able to adequately fill this role. Moreover, the Constitution specifically gave Congress the power to call forth
the militia to repel foreign invaders. Many of the Constitution's drafters hoped that the militia clauses would thus
preclude the need for a federal standing army, which they viewed as the enemy of a democratic government.
In the eighteenth century, before the rise of national military conscription, the term "army" meant mercenaries.
The public viewed professional soldiers as having few of the scruples of civilized society. Thus, the Constitution's
drafters hoped to maintain a militia system that would obviate the need for a standing army.
The states also used their militias as an internal police force, since eighteenth-century America lacked the
professional police of today. The government expected citizens, acting both individually and jointly in the form of
a posse comitatus, to prevent crime and pursue fleeing criminals. The government also expected citizens to protect
themselves against crimes against their person or property. The states were no more able to provide a large
professional police force than they were a full-time professional military.
The possibility of a federal standing army overthrowing the state governments further concerned the
Constitution's drafters. No one at the Constitutional Convention felt that this threat was illusory; rather, the various
factions debated only which militia system would best protect the integrity of the state governments. The
Federalists argued that the militia clauses enabled the states to adequately protect themselves from the federal
government. James Madison believed that the armed citizenry, officered by men from their own states, could resist
any federal army. The Anti-Federalists, however, opposed any federal control over the state militias. George
Mason and Patrick Henry feared that the federal government's right to arm the militia implied a right to disarm it.
Madison maintained that the states had a concurrent right to arm the militia and, therefore, could prevent
disarmament.
The eventual compromise between the factions was an intricate division of federal and state control over the
militia. The two militia clauses in Article I of the Constitution grant the federal government considerable power
but leave appointment of officers to the states. The drafters intended the state power over officer appointments to
allay the Anti-Federalist fears that the Constitution would leave the state governments powerless against a federal
army. While these same Constitutional provisions still govern the militia today, the militia's structure has radically
changed.
C. The Modern Militia System
Congress has shaped the modern militia's structure by exercising itsArticle I militia powers through a series of
statutes. The first such legislation was the Militia Act of 1792. This act codified the traditional view of the militia
as consisting of all able- bodied citizens. It also required each militiaman to supply his own arms. However, since
the federal government provided no funding, the states gradually allowed their militias to deteriorate. By the
1870s, the militias in most states were little more than social clubs centered on a yearly parade.
In 1903, Congress attempted to restore the usefulness of the state militias with the Dick Act. This act marked the
beginning of the federalization of the militia. The Dick Act also split the militia into two branches: the organized
militia, which became known as the National Guard, and the unorganized militia. The act provided federal funds
for equipment and training, required drill a specified number of days each year, and gave federal inspectors the
right to review state militia practices. Congress continued the federalization of the National Guard through
numerous subsequent acts. The result today is that the National Guard is a reserve force of the United States Army
under significant federal control.
Though the division of the militia into organized and unorganized branches still exists today, Congress has not
explicitly defined the role of the unorganized militia. Nevertheless, federal statutes do provide for civilian firearms
training as part of the Civilian Marksmanship Program. Although legislators have attacked the program as being
outdated, it has survived Congressional debates as recently as June 1994. At least one senator has argued that the
program continues to add to the nation's defense capability. Additionally, a United States Army study found that
individuals who received training in the program were significantly more effective in combat than those without
such training. However, although Congress explicitly created a dual- militia system, the unorganized militias of
the various states have remained largely dormant.
