Organizing the Militia
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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress....Article I, Section 8, Clause 16
The militia, long a staple of republican thought, loomed large in the deliberations of the Framers, many of whom were troubled by the prospect of a standing army in times of peace. For the Founders, a militia, composed of a "people numerous and armed," was the ultimate guardian of liberty. It was a means to enable citizens not only to protect themselves against their fellows but also, particularly for the Anti-Federalists, to protect themselves from an oppressive government. "The militia is our ultimate safety," said Patrick Henry during the Virginia ratifying convention. "We can have no security without it. The great object is that every man be armed....Every one who is able may have a gun." Both the Pennsylvania and Vermont constitutions asserted that "the people have a right to bear arms for the defense of themselves and the state...."
The Anti-Federalists feared that Congress would permit the militia to atrophy, leaving the states defenseless against the central government. In the Virginia ratifying convention, George Mason, while advocating a stronger central control over the militia, nevertheless argued that there was a danger that Congress could render the militia useless "by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them &c." The desire to prevent enfeebling state militias, which provided a check to a standing army, prompted the ratifying conventions to call for an amendment guaranteeing the right of citizens to bear arms. The First Congress responded, but the Second Amendment did not remove national control over armed forces or the state militias.
Federal preemption of state-militia legislation commenced very early in the history of the Republic. In Houston v. Moore (1820), the Supreme Court stated that the federal government's power over the militia "may be exercised to any extent that may be deemed necessary by Congress."
Despite the generally poor performance of the militia during the Revolution, Federalists recognized that without a militia, there would be no United States military establishment. They believed, however, that they could minimize the weaknesses of the militia by creating a select militia corps in each state and establishing federal control over officership and training. The ultimate Federalist goal was to turn the militia into a national reserve of uniform, interchangeable units. In 1792, Congress passed the Uniform Militia Act, which remained the basic militia law of the United States until the twentieth century. This act established an "obligated" militia, based on universal military service. All able-bodied white men between the ages of eighteen and forty-five were required to enroll. But the act fell far short of Federalist goals. It did not create select state corps and, most importantly, did not impose penalties on the states or individuals for noncompliance. For the most part, the states ignored the provisions of the act. The abysmal performance of the militia during the War of 1812 ensured the demise of the obligated reserve as established by the Founding generation.
The obligated militia was succeeded by the "uniformed" militia, local volunteer units generally equipped and supported by their own members. In addition, the states continued to provide volunteer citizen-soldiers when the regular U.S. Army had to be expanded, as was the case during the Mexican War and the Civil War. After the Civil War, the uniformed militia reemerged as the National Guard, but, unhappy with their largely domestic constabulary role, guardsmen lobbied for the mission of a national reserve. In the Militia Act of 1903 (the Dick Act), amended and expanded in 1908, Congress divided the eligible male population into an "organized militia" (the National Guard of the several states) and a "reserve," or "unorganized," militia.
In response to an opinion by the Attorney General that the Militia Clause and the Dick Act precluded the employment of guardsmen outside of United States borders, Congress included in the National Security Act of 1916 (amended in 1920 and 1933) provisions that explicitly "federalized" the National Guard. This act, as amended, has continued to govern federal-state military relations. By giving the United States Army extensive control of National Guard officers and units, and by making state forces available for duty overseas, the National Security Act of 1916 essentially stripped the states of all of their militia powers. It effectively repealed the power of the states to appoint officers by limiting such appointments to those who "shall have successfully passed such tests as to...physical, moral and professional fitness as the President shall prescribe." The law stated that the army of the United States now included both the regular army and "the National Guard while in the service of the United States." In Cox v. Wood (1918), the Supreme Court validated the action of Congress, holding that the plenary power to raise armies was "not qualified or restricted by the provisions of the Militia Clause."
The World War I draft completely preempted state sovereignty regarding the militia by drafting individual guardsmen directly into the United States Army. In The Selective Draft Law Cases (1918), the Court held that the states held sway over the militia only "to the extent that such actual control was not taken away by the exercise by Congress of its power to raise armies."
The transition of the National 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. For instance, in protest against United States actions in Central America during the 1980s, several governors attempted to prevent units from their states from deploying to Honduras and El Salvador for training. In response, Congress passed a law "prohibiting a governor from withholding consent to a unit of the National Guard's being ordered to active duty outside the United States on the ground that the governor objects to the location, purpose, type, or schedule of that duty." In such cases as Perpich v. Department of Defense (1990), the Court supported Congress's position.
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. On the other hand, extensive military commitments abroad have required the Guard to remain an active element in the United States armed forces.
- Mackubin Owens
- Professor of National Security Affairs
- Senior Fellow of the Foreign Policy Research Institute
- National Security Affairs (NSA) Department
- United States Naval War College