“The idea of the ‘citizen-soldier’ retained a strong romantic hold over the nation’s leaders. “

By Angry Staff Officer

THE IDEA OF a militia – that is a group of armed citizens that enter military service in time of need – has a long and contentious history in the United States.

The legal and constitutional ramifications of militias have stirred fierce debate recently, reinvigorated by the armed militants that took over federal land in Oregon in 2016. Yet the social and political issues surrounding the use of armed civilians during wartime has been a part of the American experience as far back as the colonial period. And though the issue is complicated, with a little effort we can trace how the fundamental idea of the militia has changed over time to where it exists in state and federal laws today.

Old World Roots

America’s militia extends back to English traditions beginning with the Assize of Arms in 1181 during which it was written that:

“He will possess these arms and will bear allegiance to the lord king, Henry, namely the son of empress Maud, and that he will bear these arms in his service according to his order and in allegiance to the lord king and his realm.”

This was further reinforced in 1285 with the Statute of Winchester in 1285, which stipulated:

“Every man shall have in his house arms for keeping the peace according to the ancient assize.”

During the reign of Elizabeth I, English law held that:

“If any man being the Queenes Subject, and not having reasonable cause or impediment, and being within the age of sixtie years (except spiritual men, justices of the bench, or other justices of Assise, or barons of the Exchequer) have not a long bow and Arrowes readie in his house, or have not for every man childe in his house betweene seven years and seventeene of age a bow and two shaftes, and everie such being above seventeene years, a Bowe and foure shaftes, or have not brought them uppe in Shooting: if any man under the age of four and twentie years, have shotte at standing pricks [targets] (being above that age) have shot at any marks under eleven score yards with any prickshaft or flight.”

Perhaps the strongest cultural tradition to transfer from England to its colonies was the distrust of a standing army that could enforce the crown’s will and circumvent parliament. England’s strength lay in its navy, which was out of sight – and often out of mind – and could not project power inland. The army was not considered a gentleman’s occupation and soldiers were looked upon as mere pawns.

Fighting for Hearth and Home

Through the colonial conflicts of the 17th and 18th centuries, English colonists in North America had plenty of opportunities to encounter regular British army soldiers. For the most part, these interactions were not always positive. The often devoutly religious colonists saw the regulars as profane, uncouth and generally prone to immoral behaviour. For their part, the soldiers thought the colonial militia prayed too much and were prone to flee when the shooting started.

The militia’s record during the wars of the colonial period was mixed. There were notable collapses, such militia refusing to cross colony lines – an issue that would prevail well into the 19th century – but also successes as well.

The most notable came in the 1744 all-militia expedition to seize the French fortress of Louisbourg in Nova Scotia. After a conventional siege, the amateur army took the bastion, much to the surprise of both leaders in France and England alike.

For the most part, the militia were a useful auxiliary force for the British in North America, that performed less-than-vital tasks thus freeing up regulars for offensive military operations.

Each colony had its own militia laws, but most enlisted the aid of all able bodied white males, usually between the ages 18 and 45. These units were to be formed under the auspices of the colony’s charter and individuals were responsible for equipping themselves.

The first muster of full militia regiments took place in 1636 in the Massachusetts Bay Colony. Militia spirit waxed and waned in the various colonies, depending on the prevailing spirit of the time. It remained especially strong in the New England states, where militia units developed into political and social institutions as well as military organizations. The political class that emerged in the colonies during the run-up to the Revolutionary War were often very active in the militia. Likewise, radical groups like the Sons of Liberty infiltrated New England’s militia, ensuring that the citizen armies were sufficiently loyal to the cause of independence when hostilities kicked off at Lexington and Concord.

Revolution

Militia units formed the backbone of the American military at the outset of the revolution. As the war continued, the militia was used to augment the Continental Army.

While the militia units of the War of Independence were amateurs, just like their colonial forerunners, they did score some victories for the rebellion. It was the militia that carried out the Siege of Boston and gave George Washington an army with which to prosecute the war before the Continental Congress could provide authorization for a semi-professional force. The militia traditions ensured that there were trained and (somewhat) ready troops to fill the ranks of the Continental Army, as well as experienced officers.

When the American Revolution ended, Congress cut the regular army down to a tiny force in response to a predominantly anti-monarchical mood in the former colonies that viewed a standing military as a danger to a free people. Yet even after the toothless Articles of Confederation were scrapped and the Constitutional debates began, the role of the militia was still hotly debated.

Suspicious of Standing Armies

The Federalists favoured a national army and navy to protect sovereignty. Their opponents, the Democratic Republicans, were convinced that a permanent military would only give more power to the federal government and reduce the authority of the states.

The Framers of the Constitution eventually got their way, angering the Anti-Federalists by establishing a larger army, and more importantly, by giving Congress authority over the militia.

Article I, Section 8 (the Militia Clause) states:

“Congress shall have the power to: provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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 the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

This removed overall control of the militia from the states to Congress. The Second Amendment to the Constitution added the often-cited phrase: “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.” And yet, the militia were already susceptible to control from the federal government as outlined in Article I, although this was often disputed by state governments.

Following the disaster that was St. Clair’s Defeat in the Ohio Valley, Congress passed the Militia Acts of 1792 did provide for the organization of state militias, yet these units were still considered the de-facto defense force for the nation.

The idea of the “citizen-soldier” retained a strong romantic hold over the nation’s leaders. However, militia were still governed by state laws, most of which did not allow service either outside the state or outside the nation.

This limitation became painfully clear during the War of 1812, when the governor of Massachusetts disobeyed President James Madison’s orders to send the state’s militia outside of its borders.

The militia suffered notable setbacks in that war, most notably in the British invasion of Maine in 1814 and that same year at the Battle of Bladensberg on the outskirts of Washington, D.C. In both instances, large militia forces fled from the battlefield, in some cases without even firing a shot. Militia did have success during the conflict, particularly when fighting in fortifications or when backed by regulars. Yet the War of 1812 was highly unpopular, so it is understandable to see why America’s amateur armies did not commit themselves with the same fervor that they did in 1776.

Following the War of 1812, the America’s militias fell into disrepair. Yearly musters were not well attended; arms and equipment were neglected; and those who did turn out seemed more interested in drinking and carousing than soldiering. Some outfits, like the ‘volunteer militia,’ fared better. Recruits to these units were more engaged and company commanders often raised equipped and clothed their units privately. As the organized militia waned in popularity, more and more states recognized these volunteer formations. Because they were considered “elite” companies, they were given honorary positions as the flank companies of regiments, either as guards or light infantry. Despite their professionalism, local laws still generally forbade such units from operating beyond state or national borders.

The Civil War

At the outbreak of the U.S. Civil War, Washington needed to expand the federal army and called upon the states to raise 90-day “volunteer” units, which were largely made up of militia. Similar formations served with distinction in the Mexican-American War; the federal government hoped for the same in 1861. Generally speaking, the first volunteer regiments sent from each state were formed from the Volunteer Militia organizations, many of which could trace their roots back to colonial period. These regiments, for the most part, compiled outstanding records of service in the Civil War and demonstrated that a militia culture could be of great value to the nation. In 1862, the Militia Acts of 1792 were amended to allow African-Americans to serve in the militia.

Towards a National Guard

Following the Civil War, volunteer militias soldiered. Through the 1880s, most states continued to organize, fund and regulate their own militias along in the absence of any revisions the national laws. The U.S. Volunteers were used again in the Spanish-American War in 1898.

The Militia Act of 1903 created the National Guard out of the Organized Militia and designated the Reserve Militia, to consist of males 17 to 45, those eligible for the draft. This removed more control of the militia from the states, but provided additional funding for training, equipping, and manning the force.

It was the National Defense Act of 1916 that fully modernized the National Guard, provided federal funding for training, drills, annual training, and equipping. It did, however, stipulate that in return, the War Department and the army gained far more control over the militia; for example, the army was now able to dictate what types of units would be raised in each state. The act also removed the issue of militia serving outside the United States by stipulating that when called into service by the president, the National Guard would function like regular federal troops.

From then on, the National Guard has served with distinction in all the major conflicts of the United States. The idea of a citizen-soldier still retains its popularity, and for good reason: the National Guard ensures a link between civilians and the military in this age of the all-volunteer force.

Common Legal Issues

Most states still have militia laws on their books, which provide authorization for State Defense Forces or State Guards. Some states – like Texas – have far-reaching militia laws that allow the governor to call up private citizens as part of an unorganized militia in the event of invasion or natural disaster.

Additionally, there is a lot of incredibly arcane – yet important – legal documentation that further defines the role of the militia in national and state defense.

United States Code Title 32 outlines how the organized militia may be used.

Interestingly enough, the National Guard is exempt from the Posse Comitatus Act of 1878, that prohibits federal troops from enforcing domestic policies. The National Guard may operate in a number of civic roles, within their own states, if called upon by their governor. Under such auspices, the Guard often takes a lead role in natural disasters as part of the Defense Support to Civil Authorities mission, in conjunction with the Federal Emergency Management Agency. Title 32 differs from Title 10, which is the section of the United States Code that governs Federal troops. Along with Title 32, there have been multiple court decisions that continue to define how the National Guard can be used. As part of constitutional law, the definition continues to be further honed and shaped.

In summary, the National Guard remains that “well-regulated Militia,” as specified in the Constitution; the militia is not anyone who declares themselves so.

For further reading on this topic, check out Michael Doubler’s book, I am the Guard

About the Author: Angry Staff Officer is an Army engineer officer who is adrift in a sea of doctrine and staff operations and uses writing as a means to retain his sanity. He also collaborates on a podcast with Adin Dobkin entitled War Stories, which examines key moments in the history of warfare