Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

The History of the Militia in the United States


Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited

 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.  

Related Pages:
Home ] Up ] The Imposition of Martial Law in the United States ] Constitutional Topic: Martial Law ] Detention and Treatment of Non-Citizens ] [ The History of the Militia in the United States ] The Posse Comitatus Act - Introduction ] Exercise of Emergency Powers - Introduction ]
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