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Citizen-Soldiers, Part II: Volunteer Militias and the National Guard

“I, ________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and of the State of ____________ against all enemies, foreign and domestic; that I will bear true faith and allegiance to them; and that I will obey the orders of the President of the United States and the Governor of ____________ and the orders of the officers appointed over me, according to law and regulations. So help me God.”

National Guard Oath, emphasis added.[1]


The National Guard enlistment oath requires enlistees to acknowledge their allegiance to both federal and state authority. This select militia developed from a foundational belief in the United States that a militia, made up of citizen-soldiers, should be central to local, state, and national protection. Originally this militia was expected to be a general militia that included all male citizens eighteen to forty-five years old who would dutifully abandon their civil life in times of need to become the citizen-soldier. But the general militias met obstacles from the very beginning that prevented them from performing their idealized role and meeting expectations. The militias were often successful meeting local needs but proved problematic when needed for an organized military defense; they never materialized as a sustainable replacement to a standing army. As the country grew the general militias proved too unwieldy, disorganized, and underprepared to provide even local solutions and states increasingly favored volunteer or select militias who advocated for national support which would lead to the federal organization of the National Guard. The focus on the National Guard by state and federal governments diminished and eliminated the viability of using the general militia system. Ironically, several of the country's Founders thought a federally run select militia training system was unavoidable and desirable but popular fears of centralizing too much power in the national government prevented them from creating a select militia (see Part I: Creating a well-regulated Militia). But the National Guard is far more federalized than the reforms proposed by George Washington and Henry Knox and directly challenges the balance of power between state and federal governments. Citizens and states now rely on a federalized force to come to their aid in times of need. But the history of the general militias shows that the general militia never materialized as a realistic force that could meet the expanding needs of the country and during the nascent years of the country the majority of citizens shirked their citizen-soldier duties and preferred to leave the fighting to someone else.

In a continued review of the interpretation of the Second Amendment a closer look at the evolving role of the militia in U.S. History is presented. The militia clause of the Second Amendment is interpreted either as qualifying (collective) or amplifying (individual and civic) the right to keep and bear arms. Either interpretation does not negate the importance early Americans placed on the role of the militia in protecting and maintaining freedom. In the first article that we presented on the Second Amendment, some of the ideology behind the use of citizen-soldiers was discussed in "Interpreting the Second Amendment, an Introduction." The early role of the citizen-soldier in the colonies and early legislative efforts to make them a viable replacement for a standing army was previously reviewed in "Part I: Creating a well-regulated Militia."

But how did the mixed success of the general militia impact its development in favor the select militia embodied in the National Guard? What influence did the volunteer militias have upon this outcome? How much did the changing duties of the militia redefine their purpose? The early militias were disorganized and sometimes rebellious but popular belief in the necessity of the militia kept the idea alive and the volunteer militias reinvigorated this ideal in the 19th century. The continued goal to create a militia that served the community, the state, and the national government encouraged the development of the National Guard as the effective replacement of the general militia in the United States.

The Militia after the Uniform Militia Act of 1792:

The Uniform Militia Act of 1792 provided federal guidelines for the organization of state militias without providing a means to ensure compliance. It also maintained a general militia rather than incorporate an added select militia as suggested by President George Washington and Secretary of War, Henry Knox. Without the select militia, it fell to the states to train every able-bodied male citizen between the ages of eighteen and forty-five. Several states recognized the importance of organizing the militias and enacted and revised laws to meet the general requirements.[2] However, the maintenance of the state militias was inconsistent and the resulting performance and reputation of the militias declined.

Termination of Militia Sham Fight
Image 1: An example of the militia as a disorganized and motley crew sketched in 1833. Depicting the mayhem after the mock battle, this image also captures the rowdy and drunken behavior increasingly associated with militia muster days. Click for a larger image.

“Termination of a Militia Sham-Fight,” D.J. Johnston, 1833, The David Claypoole Johnston Family. "Illustrated Box List." American Antiquarian Society. Accessed January 20, 2014.

Supplying the militia was left to the states and the militiamen themselves. As directed under the Uniform Militia Act, militiamen were expected to arm themselves and bring those arms to inspection.[3] Not everyone had arms or was willing to bring them to muster to be inspected. Those without rifles were usually the poorest members who were sometimes issued arms by the city for training or when summoned for active duty. Larger cities also made an effort to arm the general militia as a whole or at least provide them with shot and powder. Even officers at times borrowed or hired horses for muster days. Additionally, the state did not supply every militiaman a uniform and some could not afford to get one on their own; unsurprisingly artists and cartoonists sometimes portrayed the militia as a disorganized and motley crew (Image 1).[4] A report on the state militias in 1804 from Secretary of War Henry Dearborn estimated that only 45% of militiamen were adequately armed.[5] In 1808, Congress allocated $200,000 to the states for the purpose of arming their militias which proved too little to be fully effective.[6]

States added fines to encourage compliance with the Uniform Militia Act and state laws.[7] Fines for failing to have the proper weapons and accompanying equipment were the most common. Additionally, militiamen could be fined for missing training days, refusing to muster when called to active duty or not enlisting in the militia at all. Civil authorities also gave tax records to every Captain so they could find qualified citizens and organize their participation in the local militia. Unless they fell under an exemption defined by the Uniform Militia Act or state law, a citizen could be fined for not enlisting in the militia.[8] Within decades after 1792, states had better results gaining revenue from associated fines rather than encouraging broader compliance.[9] However, even this collection was sporadic and it seems likely that factors within the community also influenced the enforcement of state laws and fines.

The social and political ties between men in the militia helped to maintain its place in the local community. Although training days occurred at the discretion of the officers, the muster days were scheduled at least once a year. These were festive events that included food and drink for the troops, impromptu markets, and a general gathering of the community. A mock battle ended the training and it was often watched by residents on the sidelines.[10] In addition to training, muster and training days were opportunities for politicking. Immediately after the Revolution, officer positions were an avenue for elite men to begin their political career. In some areas, laws barred militia officers from running for other civil political offices because of their popularity and the fear of mixing armed leaders in government.[11] Instead, political hopefuls used officer positions to develop a public reputation before moving into civil office.[12] Depending on the state, either the legislature appointed the officers or the militiamen handled the election themselves. In both cases the positions favored local elites and militiamen elected officers of higher status and could reject officers that upset the local hierarchy.[13] Once in place, officers also used their position to promote friends and relatives to staff positions to build their political allies. Once in place, officers often used militia events to promote political ideas through speeches and social gatherings before training.[14] Thus, training and muster days were not only to train the militia but served to connect them more closely with the local community and politics.

The performance of the militia remained mixed. Locally the militia was mustered when needed to maintain public order, protect property, capture and guard prisoners, patrol the community, and enforce quarantines during epidemics. There is evidence that militiamen sometimes refused to serve and often favored local popular opinion over that of public officials – the militias were most successful maintaining law and order when local opinion and policy were in agreement.[15] The state and federal use of the militia was more inconsistent. Two years after the enactment of the Uniform Militia Act, tensions over the Whiskey Tax fueled rebellion in Pennsylvania. President Washington personally led state militias from New Jersey, Virginia, Maryland, and eastern Pennsylvania to suppress the insurrection. Local militia could not be used since, like Shay’s Rebellion, the militia, made up of local citizens, was on the side of the rebels and even used their involvement to legitimize the rebels’ grievances.[16] Washington knew politically he could not use the army against the rebels and instead citizen was pitted against citizen which created problems with enlistment. Several militias refused to muster and/or individuals failed to report and states had to draft volunteers to meet the quotas requested by the President. However, once mobilized, the forces under the President quickly quelled the rebellion. Their behavior received mixed reviews. Some sources cited the militia as being unruly and destructive while others considered it a success since looting was kept to a minimum.[17] During Frie’s Rebellion, President John Adams limited the use of the militia and supplemented this force with federal troops.[18] He did this since motivating the militiamen to consistently support the federal and state governments remained difficult during these early years. In Houston v. Moore, 18 U.S. 1 (1820), the U.S. Supreme Court, in a opinion that focused on constitutionality of state court-martials and fines, maintained that refusing to muster or passive resistance was illegal.[19] This suggests that such a tactic remained a popular form of passive resistance for some time.

Both the federal and state governments continued to use the militia despite this inconsistency. For example, in addition to rebellions over taxes, the federal government also used the militia to enforce embargoes designed to keep the U.S. neutral under Thomas Jefferson’s presidency.[20] However, the states used the militias the most often. In addition to enforcing local law and aiding citizens during emergencies, the states also used the militia to check or resist the federal government. The Alien and Sedition Acts, unpopular with republicans, encouraged the reinvigoration of the state militias in republican states.[21] The contentious election of 1800 likewise caused the republicans to increase militia preparations and funding in case they had to force their choice of Jefferson for President because of the tied vote.[22] Similarly, before the start of the War of 1812, several northeastern states revived their militias to protect their interests while they considered succession.[23] Indeed, during the early years of the war, not all militias were used in states considered politically questionable, such as in Connecticut and Massachusetts, and some governors even tried to recall their militias from service because of political differences.[24] Although these actions never came to armed conflict, it was clear that some state representatives viewed their militia as an active balance against the federal government and were more likely to organize, train, and fund their militias when politically motivated. However, this political use of the militia decreased after the war.

Despite these spurts of political utilization of the state militias, reform to make them a consistent and viable alternative to the army failed. By 1800 Secretary of War James McHenry noted that a universal general militia was not possible since too many Americans were disengaged.[25] Even after the very mixed performance during the War of 1812, President James Madison could not pass new legislation to organize the militia.[26] Between 1816 and 1835 presidents would request militia reform thirty-one times to no avail.[27] By 1820, the Secretary of War John C. Calhoun proposed military reform that focused on the army rather than the militia. In 1826 Secretary of War James Barbour noted everything from a shortage of weapons to a lack of effective training was prevalent in militias serving rural communities. Muster days also gained a dubious reputation as drunken fairs that ended in disorderly brawls (again, note Image 1).[28] States like New Hampshire and South Carolina found it necessary to outlaw heckling the militias who were mocked by the crowds because of their poor marksmanship and drilling.[29] In his Commentaries on the Constitution of the United States, U.S. Supreme Court Justice Joseph Story in his discussion on the Second Amendment noted the widespread decline in militia service and opinion of the militia’s importance:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.[30]

Finally, developing labor groups decried the fines against militiamen for noncompliance as an unfair tax on the poor who were less able to avoid or pay the penalties. By 1840 several states had already begun to eliminate militia fines and some even eliminated mandatory service altogether.[31] Instead of abandoning the use of militias, the states instead turned to utilizing volunteer militias which cost less and often had long histories of service as well.

The Role of the Volunteer Militias:

Volunteer militias that served as select militias were another carryover from the English militia system to the colonies.[32] These private militias mostly formed in urban centers and existed before the American Revolution. After the Revolution, state governments granted charters to volunteer militias that established their legitimacy and clarified the expectations of their service to the state.[33] Some republicans questioned whether the use of these volunteer militias might undermine the general militia in the long run.[34] Despite these objections, the Uniform Militia Act grandfathered volunteer militias into the militia system and allowed them to retain their distinct uniforms and traditions as long as they adhered to the basic organization detailed in the Act (§10-11).[35]

Volunteer Militia Image
Image 2: The Massachusetts volunteer militia celebrating 100 years of American independence. Click for a larger image.

“In honor of the Mass. Vol. Militia and its commanders and the one hundredth year of American independence,” c.1878, Library of Congress Prints and Photographs, accessed January 20, 2014.

The volunteer militias grew in popularity while the general militia declined. In part, members in the volunteer militia shared more with their fellow volunteers both socially and culturally. Access to the militias was controlled through high fees and/or sponsorship which maintained cultural cohesion and the elite status of members. Elaborate uniforms were part of the cost of membership and often included flares of cultural and social distinction such as elements of ethnic dress. Ethnic militias also meant groups of non-native English speakers could speak their native languages, like German, in their volunteer militia.[36] Some of these groups, like the Irish and African Americans, founded volunteer companies when prejudice barred them from the general militia. Additionally, the same politics that made militia officer positions so desirable may have encouraged some men to join volunteer groups instead.[37] The cost of these militias did not only translate into nicer uniforms (Image 2), but also included more money for equipment and training. Some of these militias hired military specialists to train their men and when they mustered for service they generally exhibited more cohesion and better military skills.[38] Finally, these volunteer militias used their organization to provide philanthropic services for their communities giving them collective purpose beyond their military training.[39]

Their reputation for better training and preparation helped to make volunteer militias valuable to state and federal governments. Additionally, the tendency of these militias to support the government was also welcomed. Many of the rebellions, such as the Whiskey Rebellion noted above, pitted the interests of urban and rural citizens against one another. The urban volunteer militias were generally easier to motivate and helped suppress the rural rebels that included several rural and small town militiamen. It was the general militias, especially those from less urban areas, which proved difficult to muster.[40] The volunteer militias also aided cities in suppressing riots especially as the nation became more divided in the mid-nineteenth century. However, these militias were also susceptible to local opinion and might refuse to enforce certain laws. For example, the Governor Nelson Dewey of Wisconsin revoked the charters of some volunteer militia companies after they refused to enforce the Fugitive Slave Law of 1850.[41] During the Civil War the volunteer militias again reflected local politics and rallied to their state’s cause; in the southern states this meant attacking and seizing federal forts and arsenals to aid the southern secession.[42]

After the Civil War, volunteer and state militias generally declined throughout the country. In the south the militia was initially disbanded because of their disloyalty to the federal government and their attacks on freed men and women.[43] When southern state militias were reinstated in 1869 they included black militias supported by the federal government to provide protection against private vigilante and militia groups, especially the KKK. Although they had some success in Arkansas, Tennessee, and North Carolina, black militias suffered towards the end of reconstruction as laws and actions restricting their rights resurfaced. By the 1870s southern states began eliminating black militiamen from service.[44] At the same time labor unrest increased tensions and reinvigorated the development of both state and volunteer militias.

The National Guard:

Beginning around 1870, state and volunteer militias began to increase in membership with renewed focus on military skill and preparation. Shortly after the founding of the National Rifle Association in 1871, the New York militias also adopted General George Wingate’s Manual for Rifle Practice to help promote marksmanship which was sorely lacking during the Civil War. The militias, especially volunteer militias, conscientiously began to develop and improve their military reputation. By this time most volunteer militias adopted U.S. military uniforms like the general militia for service while retaining their distinctive uniforms for ceremonies and parades. Additionally, more states began using the name National Guard instead of militia. The name National Guard was first used in New York in 1824 and would be the standard name used for militias in all but three states by 1896.[45] While the initial use of the name may have been an honorary reference to Lafayette’s Garde Nationale, the trend to use the name also followed the reimaging of militia service. In 1878 the National Guard Association (NGA) was founded to promote better training among the guardsmen and proactively campaigned to link the state National Guard units with the national army. The NGA also wanted to reform the Uniform Militia Act to better organize the militia forces and obtain funding for militias that were still paying a majority of their costs.[46] The NGA used the growing dependency on state and volunteer militias to build their case.

Labor and Militia Cartoon
Image 3: A “union agitator” threatens a laborer with expulsion if he joins the National Guard. The laborer is forced to hand a rifle (labeled Law and Order) and his uniform (labeled Patriotism) to Uncle Sam. Click for a larger image.

"Unionism or the National Guard?" S.D. Ehrhart, J. Ottmann Lith. Co., Puck Bldg., 1903 January 28, Library of Congress, accessed January 20, 2014.

Labor disputes at the end of the 19th century renewed and increased the reliance on militias to restore and maintain public order. Directly after the Railroad Strike of 1877, it became apparent that the states needed the militia; fifteen states had used state and volunteer militias for the strike that included cities from St. Louis to Boston. At the same time the Posse Comitatus Act in 1878 limited the role of the federal military in enforcing state laws leaving the main enforcement to the militias. Many states increased their funding of their National Guard, especially in the Northeast and Midwest.[47] States (and businesses) continued to use these militias, especially volunteer units, to break strikes during from the late 19th to early 20th centuries.[48] Originally strikers welcomed the militia as guards hired by the factories and mines were often brutal and unrestrained. However, the guardsmen, especially those in volunteer units, were more sympathetic with business owners and the state government. Before long the unions viewed guardsmen as another extension of state and business interests against the laborers' cause. It became common for union leaders to forbid members from serving in the militia and the militias generally viewed the union leaders as “outcasts from Europe” who forced undemocratic agendas (see Image 3).[49] This union busting role disappointed volunteer militiamen and the NGA who wanted the militias to be a military reserve rather than a force of "industrial policemen."[50]

In 1903, the lobbying efforts by the NGA, increased utilization of the militias by the states, and the mixed performance of militiamen in the Spanish-American War encouraged new militia reform under the Militia Act of 1903, also known as the Dick Act.[51] There were several significant changes to the militia system under this new plan and it incorporated several elements from the earlier Calling Forth acts as well. First, the Act divided the militia into the organized militia (the National Guard of the state) and the reserve militia (everyone else). Potential militiamen included every able-bodied male citizen eighteen to forty-five years of age as well as every “male of foreign birth who has declared his intention to become a citizen” (§1). All active militias became part of the organized militia and the President received the power to organize these militias in times of peace and call them forth during times of need for up to nine months of service (§3-5). When in active service the militias could be moved to other states as needed and those who refused to muster became subject to a court martial by their peers (§6-8). The Act authorized the states to arm the organized militia from the federal supply with the condition that these arms remained the property of the United States and were regularly inventoried (§13). In active service, the organized militia received pay equal to the regular army and the same benefits if injured or killed (§10 and 22). To improve organization, the Act gave militia officers access to military officer training and allowed army officers to participate in training the militias (§16 and 19). Finally, the Act required that militiamen report for one general inspection, one five day camp, and practice shooting twenty-four times each year (§18).[52] In 1908, an amendment to the Militia Act removed geographic and time limitations on the service of the organized militias during times of need. These militias were also placed under the Division of Militia Affairs (DMA) with jurisdiction over them through the national war department.[53] Both the Militia Act of 1903 and its subsequent amendment increased the ties between the state organized militias, or National Guard, and the federal government.

The Militia Act of 1903 effectively split the state militias and increased the federal government’s control over the organized militia. The organized militia continued to serve the state but the federal government offered training and supplies in exchange for the militia’s national service as needed. The reserve militia’s organization and maintenance was left to the discretion of the states. At first glance this reads closer to the original ideas for organizing the militia proposed by Washington, Knox, and Von Steuben (see Part I). This organized militia could gain firsthand experience, train with the army regulars, attend military schools, and remain a citizen-soldier in their communities. However, the states did not maintain training for the reserve militia. Under the Washington’s plan the select (organized) militia would instruct the general (reserve) militia which would make the citizen-soldier an effective balance against the standing army. This coordination did not materialize as the states preferred to utilize the organized militia which cost less to the state.

The states’ reliance on the National Guard was soon tested as their use by the federal government increased. Prior to World War I, guardsmen pushed to be drafted as volunteers before the national draft. But because of limitations on militia service, guardsmen could only enlist as individuals. The National Defense Act of 1916 effectively changed the status of the National Guard and made it an extension of the U.S. Army when called into active service by the federal government.[54] The states were then faced with the dilemma of guarding the home front and maintaining peace at a time when only Pennsylvania had a state police department.[55] Several states organized militias often called State Guards to carry on the domestic duties of the National Guard during the war.[56] After the war pressure from the returning National Guard forced the states to disband these auxiliary units. During World War II, the states reinstated the State Guards when the President again called forth the National Guard. After the war, a few states did try to keep their State Guards as a supplementary militia but most were disbanded by 1947.[57] Although some State Guards (also called State Defense Forces) still exist, the National Guard continued and continues to be the primary militia force for the states.

The balance between federal and state use of the National Guard continued to be tested after the world wars. Financially the National Guard became mostly a federal institution. In 1933 states contributed 33% of the cost but by 1963 their cost decreased to 6%. The use of the Guard by the states also changed over time. In the 1930s several states used the National Guard to block New Deal projects and Iowa used the Guard to prevent the National Labor Relations Board from meeting. All were later found unconstitutional but states still considered their use of the National Guard to protect state interests valid.[58] But by the 1950s, the National Guard clearly supported the federal government and laws over state objections. The desegregation of schools offers a clear example where the federal government was able to enforce national law against the wishes of state officials. In 1957, Governor Orvill Faubus of Arkansas called the state’s National Guard “occupation troops” after President Dwight D. Eisenhower called them forth to enforce desegregation.[59] Localized interest so prevalent in the early militias was replaced by adherence to the law of the land.[60] Control was also legally in the hands of the federal government over the state governments. In Perpich v. Department of Defense, 496 U.S. 334 (1990) several state governors challenged the international deployment of National Guard troops during peacetime and claimed that when not at war the Guard belongs to the states. The Supreme Court ruled that although the National Guard takes oaths to both and generally serves the states during peacetime, their state obligations are outweighed by their duty to the federal government (see also The Judicial Interpretation of the Second Amendment). Despite these disputes over control, the National Guard continued to serve as the states’ militia force.

Changing Expectations of Service:

This increased federalization of the National Guard did impact the role of the militia over time. Despite the hopes of the volunteer militias and NGA, states continued to utilize the National Guard for labor disputes during the first several decades after the Militia Act of 1903.[61] This role did decrease over time and by the early 1950s the National Guards policing of strikes diminished to 2% of their total service.[62] The militias had a long history of keeping the peace and protecting property during riots. After the Dick Act this role increased and the National Guard received specialized training in riot control. Riots spurred by labor disputes and race concerned the states and often influenced the development of State Guards during the world wars as well.[63] This role was clearly apparent in the National Guard’s role during the race riots of the 1960s. In 1968 alone the Guard responded to seventy-seven different riots in twenty-nine states and Washington, D.C.[64] However, after the high profile shooting at Kent State University in 1970, the role of the National Guard in crowd policing efforts diminished dramatically.[65]


Handout image provided by the U.S. National Guard (Photo by Army Staff Sgt. Rory Featherston/National Guard) Posted on "National Guard units work alongside volunteers," Hal Bernton, 3/29/14, The Seattle Times.

In addition to these changes in law enforcement, the federalization of the National Guard also helped them provide much needed services to their states and communities. The disaster relief by the National Guard, both for natural and man-made disasters, has increased exponentially in recent years. The militia often served after fires, floods, and other disasters since the beginning. But the types of disasters where the National Guard provided aid and the number of those in need increased as the country developed. Between 1947 and 1953, 62% of their activity was disaster related while only 7% was policing crowds or strikes. In the 1990s after a series of high profile disasters such as Hurricane Andrew and the Flood of 1993 along the Mississippi River, the process for approving and deploying the National Guard was further streamlined so they could respond more quickly to regional disasters. Just in the past week (March 31-April 8, 2014) the National Guard has responded in number and expertise to the mudslide in Oso, Washington, once again highlighting their continued importance to local communities. Indeed, their coordination, specialized training, and equipment supplied by the federal government may be one of the strongest benefits states receive from their militia today.

Conclusion:

Early efforts to organize the militia under the Uniform Militia Act of 1792 did not succeed and the national and state governments struggled to use the militia effectively against both domestic insurrections and foreign invasions. Localism was characteristic in most militias which checked government goals against popular ones. As the standing army became viewed as a necessity for the country, the perception of select militias also became more favorable. During the 19th century some scattered success of the state militias and the professionalism of some urban volunteer militias maintained the idea that an organized militia could be effective. This popular perception and support prevented the citizen-soldier from being completely replaced by the growing military. Instead, the active campaigning of the volunteer militias and NGA successfully promoted militia reform in the Militia Act of 1903. The establishment of the National Guard created a select militia for states but also provided the federal government with more control. The world wars served to further federalize the National Guard as the guardsmen themselves campaigned to be accepted as a viable reserve to the U.S. Army. The local and state political and legal control over their militia diminished. However, in return states and communities have a select militia that is organized, specially trained, and well equipped to meet their needs in times of crisis.

Is the National Guard the select militia Washington and others envisioned in the 18th century? No. But it is also clear that the general militia ideal of every citizen a soldier was never realized in this country (for the early years, see Part I). As was evident by the early 19th century, American culture and individualism did not encourage citizens to remain committed to the militia as a universal ideal. Despite the rhetoric, American citizens have repeatedly chosen to leave militia service to the few rather than the many. The reserve or general militia remains a legal option for states and citizens to develop but has not been refined to the level envisioned by the Founders.

This federalization of the National Guard coupled with the lack of a developed reserve militia has led some to question the ability of communities and states to check the federal government. Some argue the very point of an organized militia in the Second Amendment is to protect the states and people from excessive control from the national government. As seen above, both local communities and state governments used the militia in this way in the past. But what were the limits to this check? When did a correction become a rebellion and who decided? Our next article will again revisit the 17th and 18th centuries to more closely review whether a right to revolution exists in the U.S. Constitution and Second Amendment.

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© enlighten technologies™

and Heather Pundt 2014
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Published April 2014

Endnotes:

1 "32 USC 304: Enlistment Oath." Office of the Law Revision Counsel, United States Code. Accessed 1/30/14.

2 Again, for more details about the Uniform Militia Act of the early laws influencing the development of the militia the last article Part I: Creating a well-regulated Militia.

3 "An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States," 8 May 1792, United States Statutes at Large, Vol. 1, United State Congress, Second Congress, 1st Session, Chapter 33.

4 Mahon notes that Brigade Inspectors complained that some militiamen opted to take the fine rather than risk having their weapons broken during often rowdy muster days. However, this was only the case for a few of the missing weapons as many were expected to participate in loading and shooting arms as part of their training. John K. Mahon, The American Militia, Decade of Decision, 1789-1800 (Gainesville: University of Florida Press, 1960) 40, 42-44.

5 Robert J. Spitzer, Gun Control: A Documentary and Reference Guide (Greenwood Publishing Group, 2009) 46.

6 John K. Mahon, History of the Militia and the National Guard (New York; London: Macmillan ; Collier Macmillan, 1983) 66.

7 The Uniform Militia Act does not institute or define fees for non-compliance. The Calling Forth Act of 1792 which outlined the conditions for the President to use the state militias noted that fines for noncompliance would be calculated from the officer’s pay but left the procedure to be defined by state law. "An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States," 8 May 1792, United States Statutes at Large, Vol. 1, United State Congress, Second Congress, 1st Session, Chapter 33 and "An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions," May 2, 1792, United States Statutes at Large, Volume 1, United States Congress, Public Acts of the Second Congress, 1st Session, Chapter 28.

8 Mahon, The American Militia, 41, 38 and 47.

9 Mahon, The Militia and the National Guard, 66. Mahon also notes that some residents would leave the area to avoid fines and the overall collection of fines could be more sporadic. Mahon, The American Militia, 48.

10 Mahon, The American Militia, 39-40.

11 Lawrence Delbert Cress, Citizens in Arms: The Army and the Militia in American Society to the War of 1812 (Chapel Hill: University of North Carolina Press, 1982) 61. Morgan notes that some men kept their military titles longer than their civil office titles as they retained a signification of prestige even after service, Edmund S. Morgan, "The People in Arms: The Invincible Yeoman,” in Whose Right to Bear Arms did the Second Amendment Protect?, ed. Saul Cornell (Boston: Bedford, 2000) 138.

12 For example, during the Tennessee campaign in 1802 for the Major-General position the competition between John Sevier and Andrew Jackson was especially heated and the success of Jackson once he held the position helped his growing career. Mahon, The American Militia, 35.

13 In some areas, attempts to place veterans of the Continental Army as officers in the state militias to promote continuity and training met stiff resistance since it disrupted the local hierarchy. Don Higginbotham, "The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship," in Whose Right to Bear Arms did the Second Amendment Protect?, ed. Saul Cornell (Boston: Bedford, 2000) 102 and Morgan, “The People in Arms,” 139.

14 Mahon, The American Militia, 35 and 40.

15 The actions of local militias during rebellions like the Whiskey Rebellion show that they were often populists and supported the majority in their community over the laws of the state. Also, high fines ($225!) for failing to report for quarantine duty suggests there were some duties the militiamen though no worth the risk. Id., 53-54. At the same time, problems with law in the community also inspired militias to develop as was the case in San Francisco where a militia formed in 1849 "to subdue lawless gangs" Michael Dale Doubler, Civilian in Peace, Soldier in War: The Army National Guard, 1636 – 2000 (Lawrence, Kan: Univ. Press of Kansas, 2003) 116.

16 Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford; New York: Oxford University Press, 2006) 80.

17 Cress, Citizens in Arms, 121-126 and Mahon, The Militia and the National Guard, 54.

18 Higginbotham, "The Federalized Militia Debate,” 111.

19 Houston's argument focused on the legality of the state enforcing fines when mustered by the national government (15). However, the court clearly does not recognize the popular idea among some militiamen that passive resistance by failing to appear for militia duty was a legitimate expression of civic discourse. Even in the dissenting opinion by Justice Joseph Story, who found the state penalty was unconstitutional, he recognized the legislators were, "governed by the highest motives of patriotism, public honor and fidelity to the Union" (32). Houston v. Moore, 18 U.S. 1 (1820).

20 Higginbotham, "The Federalized Militia Debate,” 111 and Mahon, The American Militia, 26.

21 Mahon, The American Militia, 50 and 55 and Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque: University of New Mexico Press, 1984) 93.

22 Higginbotham, "The Federalized Militia Debate,”111 and Halbrook, That Every Man Be Armed, 95.

23 Cornell, A Well-Regulated Militia, 129-130.

24 It is notable that the militiamen from Vermont initially refused the order by the Federalist Governor Martin Chittender to return to the state as popular opinion about their duty and role differed from that of the governor. Mahon, The Militia and the National Guard, 67.

25 "To qualify and keep our citizens, in general, of suitable bodily ability, prepared to take the field against regular forces, would demand the most radical changes in our militia system...." American State Papers, House of Representatives, 6th Congress, 1st Session, Military Affairs, 1:142, Library of Congress and Cress, Citizens in Arms, 147.

26 Cress, Citizens in Arms, 174. During the War of 1812 the militia famously took part in both the hasty retreat that left the nation’s capitol undefended (the retreat was so fast it was parodied as the Brandenburg Races) and the famous success in the west under Andrew Jackson. Mahon, The Militia and the National Guard, 73 and77.

27 Mahon, The Militia and the National Guard, 79.

28 Doubler, Civilian in Peace, Soldier in War, 87 and 89. In rural areas organization was consistently difficult and the frontier militias relied on strong and charismatic leaders for their success. Mahon, The American Militia, 33.

29 Spitzer, Gun Control, 110.

30 Joseph Story, "Amendments to the Constitution," Commentaries on the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution, Ch. 44 §1889 and §1890, 1833, Constitution Society, accessed 4/1/14.

31 Mahon, The Militia and the National Guard, 82-83.

32 Robert J. Cottrol, introduction to Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Controversies in Constitutional Law (New York: Garland Pub., 1994) xii and Mahon, The American Militia, 56.

33 Mahon, The Militia and the National Guard, 93. States had to charter volunteer militias and private militias were not allowed. In cases such as Presser v State of Illinois, 116 U.S. 252 (1886) and State v Gohl, 46 Wash. 408 (1907) both the U.S. Supreme Court and State Supreme Court of Washington would uphold the states’ control over volunteer militia groups with zero tolerance for private militias.

34 Cress, Citizens in Arms, 142.

35 "An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States," 8 May 1792, United States Statutes at Large, Vol. 1, United State Congress, Second Congress, 1st Session, Chapter 33.

36 Doubler, Civilian in Peace, Soldier in War, 91-94.

37 Higginbotham, "The Federalized Militia Debate,” 113 and Robert J. Cottrol and Raymond T. Diamond, “The Second Amendment: Toward an Afro-Americanist Reconsideration,” in Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Controversies in Constitutional Law, ed. Robert J Cottrol (New York: Garland Pub., 1994) 407.

38 Mahon, The American Militia, 58-60.

39 Doubler, Civilian in Peace, Soldier in War, 94.

40 When mustering militiamen to meet the President’s quota, Massachusetts’s Governor had to put down his own small rebellion in the western part of the state where rural sympathies and concerns matched those of the rebels in western Pennsylvania. Cress, Citizens in Arms, 124-125 and Mahon, The American Militia, 57.

41 Mahon, The Militia and the National Guard, 85.

42 Doubler, Civilian in Peace, Soldier in War, 101.

43 Halbrook, That Every Man Be Armed, 119-120 and Akhil Reed Amar and Les Adams, The Bill of Rights Primer: A Citizen’s Guidebook to the American Bill of Rights (Birmingham, Alabama: Palladium Press, L.C.C., 2002) 243.

44 Doubler notes that black militias were most successful against the KKK in Arkansas, Tennessee, and North Carolina. Doubler, Civilian in Peace, Soldier in War, 110-111 and Mahon, The Militia and the National Guard, 108-110. Not all black militias disbanded. After the Militia Act of 1903 (discussed in continued discussion above) some southern states used their new control of federal funds for militias to further disband black militias. Doubler, Civilian in Peace, Soldier in War, 146.

45 The New York militia began using the term after an visit by Lafayette in 1824 as an honorary reference to his Parisian Garde Nationale. Id. 119 and 95. See also Mahon, The Militia and the National Guard, 110.

46 Id. 114.

47 Doubler, Civilian in Peace, Soldier in War, 111, 114, and 119.

48 State governors called forth these militias 481 times between 1865 and 1906 and one-third were for labor disputes, Id. 112. See also Mahon, The Militia and the National Guard, 112.

49 Id. 116-118 and 150.

50 Doubler, Civilian in Peace, Soldier in War, 118.

51 Often called the Dick Act after the sponsor, Representative Charles Dick of Ohio who was a member of the Ohio National Guard and chairman of the House Militia Affairs Committee, Id. 143. In the Spanish-American War the militiamen were admired for their spirit and volunteerism but lacked the skills and equipment necessary. President Theodore Roosevelt called the militia “obsolete and worthless” and favored new reform efforts, Spitzer, Gun Control, 244.

52 "Militia Act of 1903", January 21, 1903, Pub.L. 57−33, 32 Stat. 775, 57th Congress, 2nd Session, Wikisource.

53 Doubler, Civilian in Peace, Soldier in War, 151.

54 "National Defence Act," June 3, 1916, Pub.L. 64–85, 39 Stat. 166, 64th Congress, 1st Session, Statutes at Large.

55 Barry M. Stentiford, The American Home Guard: the State Militia in the Twentieth Century (College Station, Tex: Texas A & M University Press, 2002) 22.

56 These State Guards were either disbanded or reconstituted in the National Guard after it was reformed in 1920. Mahon, The Militia and the National Guard, 148.

57 Stentiford, The American Home Guard, 187. State Guards continued to be sporadically revived by states during later wars but it would not be until the 1980s that State Guards, collectively called State Defense Forces, were reinvigorated in about twenty states. Their public reputation as effective militia remained mixed similar to the militias of the early 19th century. However, their proponents argued they were closer to the general militia intended by the Founders. Id. 224-225. These State Defense Forces are still active today but are much smaller than the National Guard and used mostly for relief efforts by their states.

58 Mahon, The Militia and the National Guard, 246 and 176.

59 Id. 246. In 1963 President John F. Kennedy also called forth the Alabama National Guard when Governor George Wallace tried to prevent two black students, Vivian Malone Jones and James Hood, from registering at the University of Alabama. Doubler, Civilian in Peace, Soldier in War, 247.

60 Doubler notes that even guardsmen who disagreed obeyed their orders and state the National Guard was now, “an effective and reliable instrument that did not question federal control, even at the local level.” Id. 248.

61 Id. 192.

62 Mahon, The Militia and the National Guard, 226.

63 Id. 157 and Stentiford, The American Home Guard, 56-58, 65, 75, 153. During the world wars the State Guards also monitored the activities of labor groups. Doubler, Civilian in Peace, Soldier in War, 176.

64 Although the National Guard had already made efforts toward integration on paper, their role in these riots highlighted the need to encourage more diversity in their membership. Mahon, The Militia and the National Guard, 261-263.

65 Id. 258 and Doubler, Civilian in Peace, Soldier in War, 264.

Sources and Further Reading

Amar, Akhil Reed, and Les Adams. The Bill of Rights Primer: A Citizen’s Guidebook to the American Bill of Rights. First. Birmingham, Alabama: Palladium Press, L.C.C., 2002.

"An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions." May 2, 1792. United States Statutes at Large. Volume 1. United States Congress. Public Acts of the Second Congress, 1st Session, Chapter 28. http://en.wikisource.org/wiki/
United_States_Statutes_at_Large/Volume_1/
2nd_Congress/1st_Session/Chapter_28

“An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States." 8 May 1792. United States Statutes at Large. Vol. 1 United State Congress, Second Congress, 1st Session, Chapter 33. wikisource.org, accessed 2/15/14, http://en.wikisource.org/wiki/
United_States_Statutes_at_Large/Volume_1/
2nd_Congress/1st_Session/Chapter_33.

Cornell, Saul. A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Oxford; New York: Oxford University Press, 2006.
-----. Whose Right to Bear Arms Did the Second Amendment Protect? Historians at Work. Bedford/St. Martin’s, 2000.

Cottrol, Robert J. Gun Control and the Constitution: Sources and Explorations on the Second Amendment. Controversies in Constitutional Law. New York: Garland Pub., 1994.

Cress, Lawrence Delbert. Citizens in Arms: The Army and the Militia in American Society to the War of 1812. Chapel Hill: University of North Carolina Press, 1982.

Doubler, Michael Dale. Civilian in Peace, Soldier in War: The Army National Guard, 1636 - 2000. Lawrence, Kan: Univ. Press of Kansas, 2003.

Halbrook, Stephen P. That Every Man Be Armed: The Evolution of a Constitutional Right. 1st ed. Albuquerque: University of New Mexico Press, 1984.

Mahon, John K. History of the Militia and the National Guard. New York; London: Macmillan; Collier Macmillan, 1983.
-----. The American Militia, Decade of Decision, 1789-1800. Gainesville: University of Florida Press, 1960.

"Militia Act of 1903." January 21, 1903. Pub.L. 57−33, 32 Stat. 775, 57th Congress, 2nd Session. Wikisource. http://en.wikisource.org/wiki/Militia_Act_of_1903

"National Defence Act." June 3, 1916. Pub.L. 64–85, 39 Stat. 166, 64th Congress, 1st Session. Statutes at Large. http://books.google.com/
books?id=6UcFAAAAYAAJ&pg=PA166#v=
onepage&q&f=false

Spitzer, Robert J. Gun Control: A Documentary and Reference Guide. Greenwood Publishing Group, 2009.



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© enlighten technologies™ and Heather Pundt 2015
Heather received her MA in History from Portland State University and has written online articles for enlighten technologies™ since 1996. This introduction is the first in a series of research articles on the Second Amendment and gun culture in the United States. To contact Heather, please use hpundt (at) lawchek.net or visit her Google+ Profile.


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