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Date: Thu, 28 Mar 2013 16:32:33 -0400
From: "James M. Atkinson" <jm..._at_tscm.com>
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Organization: Granite Island Group
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Subject: Militia White Paper 2013 - Cutting Right to the Bone (by: James M.
Atkinson)
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Please CAREFULLY read the following, it will utterly blow your socks off:
Please distribute as widely as possible, I will repost as a PDF document
later.
Look folks, lets stop all of the silly "Assault Weapons Ban" garbage....
the President is powerless to do it and Congress is expressly forbidden
to do it, and any attempt to do it is defined by Federal law and Case
law as an attack on the National Security of the Nation itself.... and
hence essentially Treason, at at an minimum an act of insurrection, open
rebellion, and disobedience against the Constitution of the United
States itself.
An assault weapons ban is prohibited (expressly) by the Constitution of
the United States, and the interconnected and inter-related and
inter-woven Militia Acts (please review below).
The following white paper that I personally wrote is one of the most
insightful, and easy to understand papers on the subject that has even
been published in the history of this country (no, I am not kidding).
Read the whole thing, then sleep on it, and then contact your local
Congress critter and have a little heart to heart chat with them,
preferably face-to-face.
Better yet, call an attorney who is a genius and an expert on this
issue, give him a copy of this document, and retain him to answer your
2nd Amendment questions, and pay him to protect your 2nd Amendment
rights and responsibilities though careful planning, and aggressive
litigation to take back your civil rights. A citizen does not take back
thier civil right by running to the gun store and loading up on
ammunition, but rather your rights are better protected by going to an
attorney, dropping a few thousand dollars (that the assault rifle will
cost you), and setting up a plan to protect the rights of themselves and
their family.
If a list member needs a referral to a firearms/militia attorney who is
expert on these matters, please drop me a line privately and I will put
you into contact with someone who is really good
Everything above my signature in the following document is all my own
work and research, and everything below it is an attachment or exhibit.
In a nutshell, the Constitution of the United States (as repeatedly
interpreted both by the Supreme Court AND Congress, and several
Presidents to include George Washington and Thomas Jefferson), expressly
forbids any state of political subdivisions from requiring a license or
ID card of any sort of any U.S. Citizen who is not otherwise
disqualified (ie: convicted felon, etc) from possessing military arms,
or assault rifles in thier homes, or on thier person. Indeed, the more
military style the arms and ammunition is, and the greater the military
usefulness, the more it is protected, so an M-16/AR-15 or AK-47 is way
more protected then skeet or trap shotgun or other sporting arms. This
is actually an extraordinarily important legal issue, as a U.S. Citizen
can have arms, especially military arms, and by law possession of these
arms is not only a right, but also a responsibility and equipment of all
citizens (who are not otherwise disqualified). No police office in this
entire country can arrest any citizen for merely possessing or carrying
arms on thier person, unless that person is using those arms in
furtherance of soem crime like robbery, buglary, arson, rape, etc, and
indeed any police office who harasses any U.S. Citizen (who is not
otherwise disqualified) is actually violating Constitutional and Federal
law (it is a Federal felony for them to do this actually), and you are
not obligated to submit to any such arrest (which would be an unlawful
arrest and kidnapping as there is no probable cause of you committing a
criminal deed by merely possessing arms) or to submit to the seizure of
confiscation of your arms (as this would be felony theft from you).
Skip down to paragraph #46 if you want to dig right into the "meat of
the matter" as it were.
Stand up for you rights, you are an American Citizens, most of you are
Military Veterans, not cowards, and certainly not sheep.
Stop complaining, and do something about the problem, the solution is
very clear, and easy to initiate.
-jma
Militia White Paper 2013
"Cutting Right to the Bone"
by: James M. Atkinson
1. With this document I do hereby support, defend and protect the
Constitution of the United States against domestic enemies who have
attacked not only my personal civil rights, but who has also attacked
the Constitution of the United States itself which I now herein defend.
Military Service, Honorably Discharged, Disabled Veteran
2. On or about my eighteenth (18th) birthday, I went to my local post
office and in accordance with federal law I formally registered for
Selective Service.
3. I enlisted as a volunteer with the active duty United States Air
Force shortly after my 18th birthday, due to a deeply held philosophy
that all citizens should perform active duty military service in the
regular military and due to a sincere personal commitment to my country.
4. I have been discharged from the Active Duty and Reserve Armed Forces
under Honorable Conditions, and received awards due to my good conduct,
and service. I am currently a member of the United States Air Force
Inactive Reserves, subject to reactivation, and I am also a member of
the unorganized militia.
5. As part of my oath of enlistment into the United States Air Force I
took a very solemn oath in front of an American Flag, and given to be my
an Senior Officer of the United States Air Force. Once this oath is
taken, it cannot be undone, and it take effect for the duration of my natu
ral life.
6. I have taken a solemn sworn oath �that I will support and defend the
Constitution of the United States against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the same.� This
oath requires that I undertake actions that will protect the
Constitution, and that no matter if it is a foreigner invading this
country, or corrupt government officials subverting the Constitution, I
am duty bound to defend the Constitution.
7. During my technical training in the military I was indoctrinated in
the �Code of the U.S. Fighting Force� as part of my �Code of Conduct�
training, during which I took my second oath during my military service.
I was taught that this code and oath applied not only to active duty
personnel, and to reservists of the active duty components, but also to
the National Guard (the organized militia), and to all members of the
unorganized militia (once they are given the oath). Once this oath is
taken, it cannot be undone for the duration of the persons life.
8. Due to my good behavior, technical competencies, responsibility,
supervisory skills, leadership skills, and military bearing, I was
promoted to the rank of Non-Commissioned Officer, and at that time a
took the third oath of my military service.
9. When I joined the military, the United States Government engaged in
an extensive special background investigation to ensure that I was a
U.S. Citizen. That I was strictly loyal to the United States, that I
could be trusted with Top Secret and related things, and that I held
allegiance only to the United States Government and to the Constitution
of the United States. The results of this special background
investigation resulted in my being granted a Top Secret security
clearance, with unsupervised and unrestricted access to the SIOP Plan
(nuclear war, and retaliation plans) of the United States; unsupervised
and unrestricted Top Secret Cryptographic access; and access to Top
Secret materials from the Central Intelligence Agency, and the National
Reconnaissance Officer to include access to codeword or specially
compartmented classified materials in regards to spy satellites,
intelligence derived from covert eavesdropping activities, TSCM,
TEMPEST, signals intelligence, to include highly classified penetrations
of Soviet Waters and airspace, �ferret� operations, and other classified
matters.
10. Further, early in my military service at various times thereafter I
also entered (or re-entered) into an agreement with the United States
Government where I took a formal oath and made promised to protect
classified information with which I was entrusted (once this oath is
taken, it can not be undone, I am bound by it for life).
11. I have taken similar solemn oaths of secrecy, and made similar
promises of nondisclosures to the Central Intelligence Agency, the
National Security Agency, The National Reconnaissance Office, the U.S.
Department of State, the Executive Branch, to Congress, the Federal
Bureau of Investigation, and other federal; and state agencies.
12. I have no reservations about laying down my life, in defense of our
country, and I would do so willingly.
13. I also, have no reservations about defending the Constitution of the
United States with every drop of blood in my body, every bone, and every
piece of flesh on my body, and I would do so willingly.
14. I am a Veteran of the active duty United States Air Force, proudly
served my country, and was transferred to the active Air Force Reserves
at the end of my service period.
15. I have also served in the active Air Force Reserves and was given an
Honorable Discharge.
16. I was then enrolled in the inactive Air Force Reserves at the end of
my active reserve duty.
17. Upon my death, I am entitled to a military casket, a military flag
for my casket, and a military honor guard, and military funeral, and
veteran�s tombstone for my internment.
18. During my active duty service, I was significantly injured several
times, and due to these injuries, I am partially physically disabled.
19. I am a disabled veteran, I am proud to have placed myself in danger
in defense of my nation, and to have sustained injuries while on active
duty, and I would do so again without reservation if called to duty to
protect this country.
Early Training in Arms, Militia, Marching, Military Discipline, and
Related Training
20. At about the age of six (6, when I entered the first grade) and
continuing until I went on active duty with the USAF after graduating
from high school, I was instructed by my family, school groups, Royal
Rangers (K-12 church group), Cub Scouts, Boy Scouts, Explorers Scouts,
community groups, and church groups in the responsible use of arms,
drilled in marching and took part in military style formations and
ceremonies on a weekly basis, with the express purpose of developing
responsible skills and military discipline for use as a young adult.
21. I was born into a Christian family, to Christian parents, who
themselves had Christian parents, as were their parents before them. I
was raised as a Christian, educated in the faith, and have consciously
adopted the Christian faith as an adult. I was dedicated, and baptized
as a young man, and strive to follow the teachings of Christ both in my
personal life, and in my professional life.
22. In church, and through my family I was taught the Old and New
Testament of the Holy Bible and as a child I was a student of the
Gospels to include the Gospels of Mathew, Mark, Luke, and John. I
recognize and assert the following:
a. Jesus Christ both permitted and commanded his followers to be well armed.
"He said to them, 'But now if you have a purse, take it, and also a bag;
and if you don't have a sword, sell your cloak and buy one'" (Luke 22:36).
b. In the NASB translation and interpretation, the same scripture reads
slightly differently, but with a similar meaning as:
�But now, whoever has a money belt is to take it along, likewise also a
bag, and whoever has no sword is to sell his coat and buy one.� (Luke
22:36 NASB)
c. Jesus Christ himself not only personally supported the keeping and
bearing of arms, but Christ himself was actually armed:
�I come not to bring peace, but to bring a sword" (Matthew 10:34)
d. Once Apostles had learned the lesson of trusting in God �Carry
neither purse, nor scrip, nor shoes: and salute no man by the way.�
(Luke 10:4), they were to be prepared to defend themselves as they
travelled through dangerous areas to take the gospel to the whole world.
"Then Peter, who had a sword, drew it and struck the high priest's
servant, cutting off his right ear. Jesus commanded Peter, 'Put your
sword away! Shall I not drink the cup the Father has given me?'" (John
18:10-11).
e. Jesus allowed Simon Peter to have the sword both before and after
this incident. The problem was not that defending someone is wrong; the
problem was that it was inappropriate at this time since Jesus wanted to
die for our sins (Mark 10:45).
"'Put your sword back in its place,' Jesus said to him, 'for all who
draw the sword will die by the sword'" (Matthew 26:52).
f. Again, Jesus did not necessarily condemn possessing or using the
sword. He told Simon Peter to put it back in its scabbard, not to get
rid of it. What Jesus is saying is that anyone who fought during that
specific confrontation risked his life in doing so as Christ submission
to his sacrifice as already ordained..
g. As biblical scripture demonstrates that Jesus Christ required that
his disciples, Apostles, and followers to be armed, then as a Christian
I am compelled by my faith and religious beliefs to also be suitably
armed. Religious civil liberties are guaranteed by the First Amendment
to the United States Constitution and in turn by the Fourteenth
Amendment, and provide for a federally protected right upon which the
Commonwealth of Massachusetts (or any other state) is prohibited to
infringe. Additionally, as these biblical commandments predate the
formation of the Constitution of the United States, and were
incorporated into the minds and intentions of the signatories of the
Constitution of the United States, and into the minds and intentions of
the colonial era Congress.
h. While I am a very gentle, thoughtful, and compassionate Christian, I
also recognize that there are times when it is appropriate to use arms,
but that this must be done with great restraint and only as a last resort.
i. It is notable that the Christian religion and thus the teachings and
commandments of Jesus Christ are inherently assumed and implicitly
present in the Constitution of the United States. In fact, the United
States Constitution contains a direct reference to Jesus Christ in three
direct references.
j. As the framers of the Constitution embraced religious neutrality and
religious freedoms and protections in regards to the practicing of both
Christian and non-Christian faiths, they nonetheless based the Militia
Clause, and the Second Amendment partially upon the direct commandants
of Jesus Christ. This is of particular importance as it convincingly
demonstrates the intentions of the framers in regards to their own
religious beliefs in regards to arms, self defense, and the defense of
others.
k. Thus, any infringement or restraint upon my right to keep and to bear
arms is not only a violation and deprivation of my right under the
Second Amendment to the Constitution of the United States, but as such
it is an infringement that impairs my ability to follow the commandments
of Christ, and the infringement also interferes with my First Amendment
rights in regards to the practicing and free exercise of my faith of my
choosing and forms a deprivation of this right.
l. In Sherbert v. Verner, 374 U.S. 398 (1963) the Supreme Court required
states to meet the "strict scrutiny" standard when refusing to
accommodate religiously motivated conduct. This means that a government
must have a "compelling interest" regarding such a refusal. The case
involved Adele Sherbert, who was denied unemployment benefits by South
Carolina because she refused to work on Saturdays, something forbidden
by her Seventh-day Adventist faith.
m. In Wisconsin v. Yoder, 406 U.S. 205 (1972) the Court ruled that a law
that "unduly burdens the practice of religion" without a compelling
interest, even though it might be "neutral on its face," would be
unconstitutional.
n. The need for a compelling interest was narrowed in Employment
Division v. Smith, 494 U.S. 872 (1990) which held no such interest was
required under the Free Exercise Clause regarding a law that does not
target a particular religious practice.
o. In Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520
(1993) the Supreme Court ruled Hialeah had passed an ordinance banning
ritual slaughter, a practice central to the Santer�a religion, while
providing exceptions for some practices such as the kosher slaughter.
Since the ordinance was not "generally applicable," the Court ruled that
it needed to have a compelling interest, which it failed to have, and so
was declared unconstitutional.
p. As the right to keep and to bear arms is a federally protected right,
and federal statues already provides limitations upon those right as to
may possess arms (for example, this citizens adjudged insane or adjudged
to be felons is not allowed access to arms), who is forbidden to possess
arms, and how they may be acquired, the Commonwealth of Massachusetts
thus has no compelling interest, reason, or cause to impose restrictions
beyond those already present in federal statue.
q. Further, as there is no federal license required to keep and bear
arms, and the right to arms is a federally protected act (by virtue of
the Constitution of the United States), any state would err in
confecting any licensing scheme in regards to arms as any act of
licensure is by its very nature an infringement upon a right.
23. By the time I was in middle school, I knew how to march, how to call
cadence, drill with ceremonial sabers, drill with parade rifles, how to
march in a parade, how to stand at attention, parade rest, and at-ease,
how to keep a crisp uniform, how salute properly (in the U.S. military
style), and how to respond and react instantly to the verbal or silent
commands and gestures I was given, both in drills, the parade ground,
within my family and also in school.
24. I was also oriented to the militia laws that are the underpinnings
of our democracy and the to moral responsibility of all citizens to
active duty military service upon high school graduation, and to militia
service outside of active duty military service.
25. Starting at an early age, my father taught me to be familiar with
arms, how to fish, to dress game, and survive in the field for longer,
and longer periods through camping trips into the woods.
26. By the age of eight, I was proficient in map reading, dead
reckoning, the use of a compass, navigating over land, field first aid,
sleeping in a tent (or hammock) while camping, and being able to
comfortably march, move, and camp deep in the woods for long durations
at a time.
27. As I matured, in my youth my parents started to take me to Civil
Defense seminars, workshops, and classes that were run by the county,
state and federal government, and courses with the Red Cross on first
aid, disaster operations, and related topics. Many members of our church
and local community also took part in these courses, workshops, and
seminars. Given that this as during the peak of the Cold War the Federal
and State agencies were aggressive is educating anybody willing to learn
Civil Defense skills, and Fallout Shelter Operation and Shelter
Leadership skills.
28. As a youth, my mother and father took me on their weekly range
practice sessions. While at the range I was taught safety, and
eventually was taught how to properly, hold and aim a firearm.
29. Eventually, as the years went on I was taught to load small caliber
revolvers, and my father firmly held my hands on the firearm by
encircling his hands over mine and he taught me sight picture and how to
shoot the target with considerable accuracy, and to control recoil. He
also taught me how to properly clean firearms after use, and how to
inspect them for damage.
30. In time, as I grew older he taught me to operate small arms to
include pistols, revolvers, small shotguns, air rifles, and small
caliber rifles (all under very strict adult control and tight
supervision with him moving my hands and fingers to operate the arms, or
him holding the rifle while I aimed it and pulled the trigger).
31. In my pre-teen years my parents oriented me to home defense with a
pistol and revolver, taught me how to evacuate the home and assist my
siblings and elderly relatives out of the home in the event of a fire,
and how to respond to various natural disasters. My parents periodically
gave me random drills, and periodically in the middle of the night, we
would have surprise fire drills, natural disaster drills, or armed
intruder drills.
32. As I grew older, and became physically capable of handling full
sized arms, I was allowed to carry arms in the field and shoot high
powered military-style and hunting rifles, target rifles, and military
shotguns, full sized military pistols, and full sized military revolvers
under immediate adult supervision and control.
Childhood U.S. Army Marksmanship Training, by way of the Civilian
Marksmanship Program (CMP)
33. Throughout my teenage years and right up into my military service, I
competed in school and church groups in firearm competitions involving
the National Rifle Association (NRA) and through the U.S. Army by way of
the Civilian Marksmanship Program (CMP) in National Matches. As the U.S.
Army Civilian Marksmanship Program (CMP) is strictly limited to the
small arms of the U.S. Military and Militia, in the configurations of
the military, I was strictly limited to military arms and ammunition
(supplied by the U.S. Army) for both CMP and NRA practice and completions.
a. Any United States citizen not suffering from very specific enumerated
federal disqualifications may purchase U.S. military surplus battle or
assault rifles and ammunition through the Civilian Marksmanship Program
(CMP).
b. The CMP is currently run by the �Corporation for the Promotion of
Rifle Practice and Firearms Safety (CPRPFS)�, a not-for-profit
corporation chartered by the United States Congress in 1996 to instruct
citizens in marksmanship and promote practice and safety in the use of
firearms.
c. The group holds a congressional charter under Title 36 of the United
States Code.
d. From 1903 to 1996, the CMP was sponsored by the Office of the
Director of Civilian Marksmanship (DCM), a position first within the
Department of War and later in the Department of the Army.
e. The original purpose of the program (by way of the Militia Act of
1903) was to orient U.S. Citizens to military arms and ammunition so
that they would be of value in the organized or unorganized militia, and
to distribute and sell these arms to these citizens directly from the
U.S. Army armories so that civilians might possess them, practice with
them, compete with them, and when mustered for militia duty to show up
armed with personally possessed modern battle rifles, shotguns, pistols,
bayonets, accessories, spare parts and ammunition.
f. This program was directed towards getting the arms into the hands of
young teenagers to allow 4-5 years of practice before reaching the
mandatory age of 17, where service in the unorganized militia as
required by statute, absent their enlisting in the National Guard or
Active Duty military components.
g. The Director of Civilian Marksmanship (DCM) was normally an
active-duty U.S. Army colonel.
h. �The Civilian Marksmanship Program - Continuing a 101-year History of
Service to the Nation�
�In 1903, the War Department Appropriations Bill authorized the
establishment of the National Board for the Promotion of Rifle Practice
as well as the National Rifle and Pistol Trophy Matches, a concept
strongly supported by President Theodore Roosevelt, an avid rifle
shooter. The measure provided a great boost to civilian marksmanship
training, an effort begun a generation earlier by the National Rifle
Association.
At its first meeting, the Board determined "That every facility should
be offered citizens outside of the Army, Navy, Marine Corps, and
organized militia [National Guard] to become proficient in rifle
shooting, and that this purpose can best be accomplished by means of
rifle clubs."
In 1905, another step forward was taken, when President Roosevelt signed
Public Law 149 into effect, authorizing the sale, at cost, of surplus
military rifles, ammunition, and related equipment to rifle clubs
meeting requirements specified by the Board and approved by the
Secretary of War.
The National Defense Act of 1916 authorized the War Department to
distribute arms and ammunition to organized civilian rifle clubs under
rules established by the Board, provided funds for the operation of
government rifle ranges, and opened all military rifle ranges to
civilian shooters. Today, many military base rifle, pistol and shotgun
ranges are used by civilian shooting clubs and associations, providing
excellent opportunities for training, practice and competition.
The National Defense Act also created the Office of the Director of
Civilian Marksmanship (DCM), under the Board. For many years, the DCM�s
programs were managed by the Army. However, the National Defense
Authorization Act of 1996 (Public Law 104-106, effective date: 2/10/96)
transferred the DCM�s function to a new, private, non-profit corporation
chartered specifically for this purpose. The new entity, the Corporation
for the Promotion of R
ifle Practice and Firearms Safety, Inc., is directed by a nine-member
board of directors initially appointed by the Secretary of the Army. The
restructuring of the CMP, earnestly supported by the NRA, was opposed by
anti-gun Members of Congress, who would prefer to abolish the program
entirely, eliminating its firearm safety training activities and
destroying its rifles and ammunition.
The CMP continues to administer the historic Excellence-in-Competition
program and to sponsor the National Trophy Matches, which include the
President�s Rifle and Pistol Matches, fired with Service Rifles (such as
the AR-15) and Service Pistols. Congress has directed the Corporation to
give priority to programs that reach as many young Americans as possible.
The CMP has no future federal funding and the Corporation must rely
entirely upon income generated through sales of rifles, ammunition and
related equipment; affiliation and match fees; etc. The Corporation is
tax-exempt and may solicit funds and services by donation or request.
All funds collected by the Corporation may be used only to support the
official functions of the CMP. The DCM is a civilian employed by the
Board of Directors and is the chief administrative officer for the daily
operations of the CMP.
The CMP is authorized to loan, sell or lease rifles, ammunition, targets
and other supplies to qualifying clubs and associations. CMP may provide
.22 rimfire ammunition and .177 caliber pellets for use by shooters ages
10-20, based on junior members� participation in the affiliated
organization�s programs. Youth programs conducted by the Boy Scouts of
America, 4-H, American Legion, and other civic groups are a priority.
Competitors 20 years of age and under may receive travel stipends to
attend the National Trophy Matches, the Small Arms Firing School held
during the matches, and special training clinics.
The CMP is authorized to sell surplus M1 "Garand" rifles, ammunition,
rifle repair parts and accessories, and competition gear such as
shooting jackets and targets, to individual members of its affiliated
organizations actively engaged in marksmanship training. Match-grade
AR-15s may be purchased through the CMP, by affiliated organizations.� �
National Rifle Association, Posted on August 3, 2004,
http://www.nraila.org/news-issues/fact-sheets/2004/the-civilian-marksmanship-program.aspx
34. I took part in my first U.S. Army Civilian Marksmanship Program
(CMP) training at the age of 12 (whereby I was receiving formal militia
training, from the U.S. Army). By the age of 13, I was competing at the
annual National Matches at Camp Perry, Ohio for high-powered service
rifles, and the next year competing with military service pistols. In
each case, I competed individually, and also as part of a local team
(usually with the team from our church).
35. I continued my firearm competitions both locally and at Camp Perry
until I enlisted in the USAF for active duty military service.
36. In basic training and technical school for the USAF, at the firearm
ranges, I shot as an expert marksman, every time, no matter the weapons
used, ranging from pistols, revolvers, carbines, rifles, shotguns,
sniper rifles, machine guns, and grenade launchers.
37. While on active duty military service, every time I re-qualified on
the range, I achieved an expert marksmanship score and certification.
Utilizing Arms in the United States Air Force
38. My duties in the USAF required that I be armed for most of the time
I was on duty, and this was usually in the form of a compact Smith and
Wesson .38 Special revolver, or a Ruger .357 Magnum revolver, or a Colt
45 ACP 1911 pistol due to tight working quarters, all of which I had
gained proficiency with, well before enlistment.
39. While on active duty, and at periods afterwards, I was granted a Top
Secret security clearance, and was trusted sufficiently to be given
unrestricted and unsupervised access to highly classified materials and
activities.
40. As I was deemed both highly trusted, and highly reliable I was
designated as a COMSEC and Special Intelligence courier and routinely
acted as an armed courier of highly classified (often Top Secret, to
include all special access programs) documents, classified cryptographic
devices and materials (usually Top Secret), classified electronics,
classified computer tapes, classified messages, and various forms of
classified items and articles. When performing the duties I would often
be armed with a semi-automatic pistol or sub-machine gun and I was under
strict orders and drilled to employ immediate deadly force to protect
what I was transporting. This required me to move with these materials
on base, and to travel between bases and government facilities by way of
civilian transport and interstate highways.
41. Because I was also trusted, and diligent in my protection of
classified materials. I was designated to handle the bulk destruction of
classified documents and computer storage media such and tapes, films,
and drums, to include documents and classified materials of the USAF,
NSA, NRO, Department of State, and CIA. This activity required that I be
armed both with a semi-automatic side arm, and a shotgun or M16 rifle,
and while performing document or material destructions, I was ordered to
instantly utilize deadly force to protect the documents and materials.
42. While in the military I was taught to modify my shooting skills away
from �center of mass� shooting and towards areas of the body that would
result in instantaneous neurological shutdown and death, and to engage
firearms, edged weapons, and impact weapons from either hand and at
considerable distances against stationary or moving persons.
43. While in the military I took part in regular on-base competitions
with small arms to include the M-16 and AR-15 rifle variants, the
M-14/M-1A, 1911, 1903, M-1 Grande, M-1 Carbine, military shotguns, and
military service pistols. I also helped to coach other service members
at the range at and before these competitions, and evolved into a
respected firearms instructor and coach.
44. While in the military, I also donated time to help coach local Boy
Scout and CMP shooting teams, which used the on base ranges
periodically. This included my 1:1 coaching, supervising range safety,
and assisting the firearms training officers.
45. While in the military I was repeatedly selected to assist in hunting
over-populated wildlife on the base to include hunting overly aggressive
alligators, and wild boar, and sometimes deer which were then field
dressed, and taken to a butcher shop, and the meat packaged and donated
to local churches. I was selected for this duty, as I was one of more
skilled expert long distance sharpshooters on the military bases I was
assigned to.
Required Militia Duty Required of All Citizens, 17 years of age and
older (of both genders)
46. On the date of my 17th birthday I automatically became a member of
the "unorganized militia" as defined by 10 USC � 311(b)(2).
�10 USC � 311 - Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males
at least 17 years of age and, except as provided in section 313 of title
32, under 45 years of age who are, or who have made a declaration of
intention to become, citizens of the United States and of female
citizens of the United States who are members of the National Guard.
(b) The classes of the militia are�
(1) the organized militia, which consists of the National Guard and the
Naval Militia; and
(2) the unorganized militia, which consists of the members of the
militia who are not members of the National Guard or the Naval Militia�
47. The modern organized militia created by the Militia Act of 1903,
which split the 1792 �Uniform Militia� forces, and consists of State
militia forces, notably the National Guard and the Naval Militia. This
split created three distinct branches of the militia.
48. The National Guard (of the states) however, is not to be confused
with the National Guard of Reserves of the United States, which are
federally recognized reserve military forces, although the two are linked.
49. The National Guard of the individual states actually take a dual
oath first to the Constitution of the United States and to the Federal
government, and then afterward to the military command chain of the
individual state. In this way the National Guard of any state may be
�Federalized� under Title 10, should the governor, legislature, or
judiciary disobey Federal law, and that disobedience requires the
application of Federalized troops.
50. The reserve militia or �unorganized militia,� also created by the
Militia Act of 1903, which presently consist of every able-bodied man
(and now women) of at least 17, and under 45 years of age who are not
members of the National Guard or Naval Militia (that is, anyone who
would be eligible for a draft, or �militia mustering�).
51. Former members of the active duty regular armed forces (�Standing
Armies�, not the National Guard) with an Honorable Discharge up to age
65 are also considered part of the "unorganized militia" per Section 313
Title 32 of the US Code.
�32 USC � 313 - Appointments and enlistments: age limitations
(a) To be eligible for original enlistment in the National Guard, a
person must be at least 17 years of age and under 45, or under 64 years
of age and a former member of the Regular Army, Regular Navy, Regular
Air Force, or Regular Marine Corps. To be eligible for reenlistment, a
person must be under 64 years of age.
(b) To be eligible for appointment as an officer of the National Guard,
a person must�
(1) be a citizen of the United States; and
(2) be at least 18 years of age and under 64.�
52. By case law and Supreme Court descriptions otherwise listed herein,
it is found that the definition of �Militia� has since been expanded to
the in regar
ds to the �unorganized militia� to include both male and female genders,
and through various Supreme Court decisions it is stated to include all
citizens of the United States, not merely of a specified age range.
53. After my USAF military service, starting in 1987 and until May 2007
I was a member of the "unorganized militia" as defined by 10 USC �
311(b)(2), and M.G.L. Chapter 33, Section 1- 3; and Section 54-56 after
which time, due to my age (45 years old) I was permitted to continue in
the unorganized militia as a volunteer until the age of 65 due to my
service in and honorable discharge form the Regular Air Force, and into
the inactive Reserves of the United States Air Force.
54. I am at this very time a member of the "unorganized militia" as
defined by 10 USC � 311(b)(2) and M.G.L. Chapter 33, Section 1- 3; and
Section 54-56, and I am required by law and Supreme Court opinions at
present to keep and to possess arms for militia service, to include
ammunition and accessories for these arms.
55. When I was given an Honorable Discharge from the United States Air
Force, I was informed that I would be enrolled in the inactive reserves
of the United States Air Force until I reached the age of at least 65,
and that I could be called back onto active duty (with the Regular Air
Force) on short notice due to my area of expertise of specialized body
of knowledge in a certain area of military electronics. I was instructed
that if a mustering of the unorganized or reserve militia were to take
place that I was to immediately indentify myself as a honorably
discharged veteran who was already in the inactive USAF Reserves, and
that I would then be brought back onto active duty.
56. Between Fall 1987 and Summer of 1993, the Massachusetts National
Guard went to great effort to recruit me out of the Air Force Inactive
Reserves, but due to my contractual obligations as a vendor the U.S.
Army and to the intelligence community I was not able to accept their
commission as it would have created a contractual conflict along with
the fact that I as a disable veteran.
Massachusetts Property Exempt from Execution - Personal Militia Arms
57. Under Massachusetts General Law, Chapter 35, Section 34 entitled
�Property exempt from execution� it is listed that �Tenth, The uniform
of an officer or soldier in the militia and the arms and accoutrements
required by law to be kept by the officer or soldier;� Under the Militia
Act of 1903, federal arms are to be provided by the state to the
National Guard members which is also known as the �organized militia�
(which is one of the benefits of being in the National Guard) as the
government arms are provided the citizen at no cost to the citizen from
federally supplied armories, and are �kept� by the National Guard
Armories, and not �kept� by the soldier of officer and hence there is
zero property interest of these arms by the citizen.
58. It is notable that M.G.L. Chapter 35, Section 34 does not say
�National Guard� or �Organized Militia� but merely the word �Militia.�
This is notable as �Militia� encompasses by statute both the organized
and unorganized militia (or ALL citizen who are 17 or older) and not
merely the National Guard or standing armies.
59. Under both federal and state statute the �unorganized militia� also
known as the �reserve militia� and in other places of the law called as
merely the �militia� (which is different by statute than the
�Organized Militia,� �Volunteer Militia� or �National Guard� as the name
evolved over time) was required to acquire, keep, store and maintain
their own arms and accoutrements dating back to the Militia Acts of
1792, through the Militia Act of 1903, and through to the present day.
This Massachusetts statue protects these arms and other accoutrements
suited for unorganized militia service to be exempt from execution as it
defines a personal property interest in these arms, and in fact by so
doing acknowledges and then re-acknowledges that arms may be and must be
lawfully kept in the home, absent licensing. Further, this state statute
clearly defines a class of military arms that are to be kept within the
home, and defines a property interest in these military arms.
60. When arms are passed from the Federal government to the National
Guard armories the Federal government retains ownership thereof, and
allows the states to possess federal arms. If the state on the other
hand purchases arms, then these are the possessions of the state and not
of the Federal government. Either state purchased arms, or Federal
government arms may then be issued to members of the organized
militia/national guard and issued to the individual National Guardsman.
However, the National Guardsman/Organized militia members have no
property right over the arms as these belong to the state, as they are
loaned to the state by the federal government by operation of the
Militia Act of 1903. Nonetheless, the arms held by the �unorganized
militia, �reserve militia,� or �militia� are the actual personal
possessions of the militia members, and neither the state or the federal
government has any possession interest or ownership in the arms of this
group of militia members.
61. Thus under Massachusetts General Law, Chapter 35, Section 34, state
statue confirms that the individual citizen has a direct property
interest in these militia arms, and that these arms are for
unorganized/reserve militia service, and not the National Guard. This
state statute confirms that arms are still to this day to be kept by
member of the unorganized militia as their own personal property, for
use in militia service.
Refinement of Militia and Military Skills
62. From 1987 until 2007, I visited the firearms range at least several
times a month to maintain and to hone my skills with arms (not merely
with firearms, but all arms).
63. While on active duty in the military, I also sought off-base, and
off-duty firearms and edged weapons training and coaching to further
develop my accuracy and skills, where I sought out schools or tutoring
run by veterans and recognized luminaries or masters of arms such as
Jeff Cooper, Jack Weaver, Rex Applegate and others.
64. After my active duty military service I have also attended both
advanced government and non-government formal courses in arms, and over
the decades of doing this I have became certified as not only an
instructor, but also a master instructor (who can certify instructors),
and an armorer in every major manufacture, class, caliber and type of
bearable arms used presently or historically used by the U.S. Military
(and some of the allies of the United States). These courses took place
from 1987 to 2009, and formed a continuation of my earlier militia
training, and active duty military training and ensured both my
proficiency with arms and more importantly the ability to teach others,
or to teach and certify other teachers.
Militia Medical and Emergency Management Training
65. I have also attended government and non-government emergency medical
training, to also continue my militia training to be of service to my
local community, my State and my Country should I be called to militia duty.
66. I also became certified to teach emergency and combat medicine
topics to include CPR, First Aid, AEDs, Oxygen Administration, Rescue
Inhalers, Epinephrine Injectors, Nerve Agent injectors, and other
medications, and so on.
67. I also became a licensed EMT, not as a full time profession, but
rather to help my community, my State, and my Country should I be called
on. Some of this medical training took place at government schools, and
some at civilian colleges to include Harvard Medical School, Yale
Medical School, Brown University School of Medicine, Georgetown
University School of Medicine, and other medical schools.
68. I also became a Red Cross Volunteer instructor, and was the only Red
Cross Instructor on the entire North Shore region who was certified to
teach not only CPR and First Aid, but also to teach the emergency
administration of Oxygen, and the lay responder and professional use of
certain drugs used to reverse allergies, shock, heart attacks, and other
topics.
69. I have also attended disaster and emergency courses with both
Federal and State agencies to include FEMA � Federal Emergency
Management Agency, the CDC- Center for Disease Control, MEMA �
Massachusetts Emergency Management Agency, and the state emergency
agencies of New Hampshire, Main, Vermont, Rhode Island, Connecticut, New
York, Maryland, and other states. This disaster and emergency training
can and should be considered part of my militia training.
70. As far as I know, I possess more formal FEMA credentials, training,
and qualifications than any other person or public servant in the Town
of Rockport.
71. The priorities of this FEMA training and related training was first
to maintain my skills to be of service to the Federal Government, and to
be of service in the unorganized militia, and to the USAF should I be
called to be of service to my community in time of a emergency or time
of crisis, then to maintain my skills for reasons of personal defense of
my family and myself.
72. I also maintained my active Professional Certification status as
some of my U.S. Government clients required that I be skilled and
certified in the use of arms, chemical weapons, explosives, military
electronics, protective driving suitable for the protection of diplomats
abroad, CPR, and in first aid along with emergency management, incident
control and command and other topics.
73. While on active duty in the USAF, I was also trained in and drilled
on how to open and operate mass shelters after a nuclear or nerve agent
or biological holocaust, and how to raise a unorganized militia force
out of the civilians who were in the shelter (in accordance with Title
10) and integrate them into the military forces to assist in operating
the shelters.
74. While in the active duty military I was also trained in the use of
radiological instruments, and how to set up and operate fallout
shelters, and bomb shelters, and how to supply and equip these shelters,
and how to operate them for long periods, to include extra-shelter, pre
and post attack/disaster foraging for supplies.
75. I was also trained in the military on not only on ho to inflict an
nuclear holocaust, and retaliatory strikes, but also ho to function
after such a holocaust in an active duty military role, and to provide
a �Continuity of Government� operations.
Militia Service Requires Possession of Suitable Arms, Ammunition,
Accessories, and Promotes the Development of Useful and Valuable Militia
Skills
76. From 2007 to the present date I have been a volunteer member of the
"unorganized militia" as defined by 10 USC � 311(b)(2), and I will
continue to be a volunteer member until the year 2027, when I reach the
age of 65.
77. From 2007 to the present date, I have been a volunteer member of the
"unorganized militia" as defined by M.G.L. Chapter 33, Section 1- 3; and
Section 54-56, and I will continue to be a volunteer member until the
year 2027, when I reach the age of 65.
78. Should I be called to Militia duty, I will automatically revert from
my USAF inactive reserve duty status to an active duty status with the
United States Air Force, provided the emergency is not eminent, in which
case I would reactivate as a USAF member, but service with the militia
initially.
79. Any arms, ammunition, or accessories, which I may have possessed at
any time starting at the age of 18, were for personal defense, hunting,
militia service, and other lawful activities.
80. Also, that under federal law and opinions of the United States
Supreme Court, I am required to supply my own arms, ammunitions, and
accessories as per the Supreme Court opinion in multiple cases.
81. I possess specialized teaching skills and expertise in arms and
matters of military electronics, military communications, intelligence
and counter-intelligence which render me of notable value in matters of
national defenses, and it is likely that I will be called upon for
voluntary militia service beyond the age of 65 should the
Commander-in-Chief (the President) call out the unorganized militia
during a national emergency.
82. In one specific area of military electronics, I am considered one of
the top six experts in the entire United States, and possibly one of the
top two. Due to my expertise in this area, I have been called to testify
before Congress, have been called on by the Executive Branch (by the
President) as a Subject Matter Expert, and I have been certified as a
expert in Military, Federal, State, and County courts to testify as a
recognized expert in both civil and criminal proceedings, and I have
been engaged by virtually every U.S. Intelligence and U.S. Military
agency at one time or another as a civilian contractor.
Medical U.S. Government Contractor Training
83. From 1987 onto the present date I have been a contractor to the
United States Government, through each of the Military Branches, the
Central Intelligence Agency, the Federal Bureau of Investigation, the
U.S. Department of State, the U.S. Customs Service, other intelligence
agencies, and other agencies of the United States.
84. As a contractor to these government agencies, I am required to
remain proficient in the handling of military and personal defensive
arms, and to remain proficient in CPR and field level first aid (at the
first responder or combat lifesaver level), in addition to my technical
skills in electronics and technical counter-intelligence.
85. I am a member of the �unorganized militia� and an American citizen
and as such permitted by federal law, to possess any bearable arms,
ammunition, and accessories suited for military or militia service, or
personal defense or personal protection. Per the Heller (2008) Supreme
Court Ruling Id. at 624-25, per the opinion of the 1st and 97th
Congress, and the interpretation of the U.S. Attorneys Office in 2004.
U.S. Citizen/Unorganized Militia Members Privileges�, Right and
Responsibilities to Keep, Bear, and Equip Themselves with Arms,
Ammunition, and accessories of their Choosing.
86. I hereby assert and lay claim here, that by function of the Second
Amendment, applied to the States by operation of the Fourteenth
Amendment and the Tenth Amendment that I am entitled to keep and bear
arms of my choosing for personal defense, or hunting, or target practice
exclusive of militia service. In addition, that the Supreme Court in
Heller and in McDonald have forcefully affirmed this right, privilege,
and immunity.
87. I hereby assert and lay claim here, that by function of the Second
Amendment applied to the States by operation of the Fourteenth Amendment
and the Tenth Amendment that I am entitled and actually required to keep
and bear suitable arms of my choosing for service in the unorganized
militia, and to do this without infringement or deprivation by the
Commonwealth of Massachusetts. In addition, that the Supreme Court in
Heller and in McDonald have forcefully affirmed this right, privilege,
and immunity.
88. I, (and Congress, and the Supreme Court) recognize that the militia
members (consisting of all citizens) are required to keep and to supply
their own arms and to keep and supply their own ammunition per Nordyke
v. King, 364 F.3d 1025, 1031 (9th Cir. 2004); the first Militia Act
enacted in 1792 by the Second Congress; in The Supreme Court in Miller
307 U.S. at 179; Presser v. Illinois, 116 U.S. 252, 265 (1886); Maryland
v. United States, 381 U.S. 41, 46 (1965) and other opinions, rulings,
and statutes.
89. The Supreme Court of the United State in the case of: Martin v.
Mott, 25 US 19 - Supreme Court 1827.
�For the more clear and exact consideration of the subject, it may be
necessary to refer to the Constitution of the United States, and some of
the provisions of the act of 1795. The Constitution declares that
Congress shall have power "to provide for calling forth the militia, to
execute the laws of the Union, suppress insurrections, and repel
invasions:" and also "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." In pursuance of this
authority, the act of 1795 has provided, "that whenever the United
States shall be invaded, or be in imminent danger of invasion from any
foreign nation or Indian tribe, it shall be lawful for the President of
the United States to call forth such number of the militia of the State
or States most convenient to the place of danger, or scene of action, as
he may judge necessary to repel such invasion, and to issue his order
for that purpose to such officer or officers of the militia as he shall
think proper." And like provisions are made for the other cases stated
in the constitution. It has not been denied here, that the act of 1795
is within the constitutional authority of Congress, or that Congress may
not lawfully provide for cases of imminent danger of invasion, as well
as for cases where an invasion has actually taken place. In our opinion
there is no ground for a doubt on this point, even if it had been relied
on, for the power to provide for repelling invasions includes the power
to provide against the attempt and danger of invasion, as the necessary
and proper means to effectuate the object. One of the best means to
repel invasion is to provide the requisite force for action before the
invader himself has reached the soil.�
�The power thus confided by Congress to the President, is, doubtless, of
a very high and delicate nature. A free people are naturally jealous of
the exercise of military power; and the power to call the militia into
actual service is certainly felt to be one of no ordinary magnitude. But
it is not a power which can be executed without a correspondent
responsibility. It is, in its terms, a limited power, confined to cases
of actual invasion, or of imminent danger of invasion.�
�If we look at the language of the act of 1795, every conclusion drawn
from the nature of the power itself, is strongly fortified. The words
are, "whenever the United States shall be invaded, or be in imminent
danger of invasion, &c. it shall be lawful for the President, &c. to
call forth such number of the militia, &c. as he may judge necessary to
repel such invasion." The power itself is confided to the Executive of
the Union, to him who is, by the constitution, "the commander in chief
of the militia, when called into the actual service of the United
States," whose duty it is to "take care that the laws be faithfully
executed," and whose responsibility for an honest discharge of his
official obligations is secured by the highest sanctions.� pp28-31
90. James Madison's initial proposal for a Bill of Rights was brought to
the floor of the House of Representatives on June 8, 1789, during the
first session of Congress. The historical link between the English Bill
of Rights and the Second Amendment, which both codify an existing right
and did not create a new one, has been acknowledged by the U.S. Supreme
Court in Heller.
"This meaning is strongly confirmed by the historical background of the
Second Amendment. We look to this because it has always been widely
understood that the Second Amendment, like the First and Fourth
Amendments, codified a pre-existing right. The very text of the Second
Amendment implicitly recognizes the pre-existence of the right and
declares only that it �shall not be infringed.� As we (the United States
Supreme Court) said in United States v. Cruikshank, 92 U. S. 542, 553
(1876), �[t]his is not a right granted by the Constitution. Neither is
it in any manner dependent upon that i
nstrument for its existence. The Second amendment declares that it shall
not be infringed ..�. Between the Restoration and the Glorious
Revolution, the Stuart Kings Charles II and James II succeeded in using
select militias loyal to them to suppress political dissidents, in part
by disarming their opponents. See J. Malcolm, To Keep and Bear Arms
31�53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of
Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for
example, the Catholic James II had ordered general disarmaments of
regions home to his Protestant enemies. See Malcolm 103�106. These
experiences caused Englishmen to be extremely wary of concentrated
military forces run by the state and to be jealous of their arms. They
accordingly obtained an assurance from William and Mary, in the
Declaration of Right (which was codified as the English Bill of Rights),
that Protestants would never be disarmed: �That the subjects which are
Protestants may have arms for their defense suitable to their conditions
and as allowed by law.� 1 W. & M., c. 2, �7, in 3 Eng. Stat. at Large
441 (1689). This right has long been understood to be the predecessor to
our Second Amendment. See E. Dumbauld, The Bill of Rights and What It
Means Today 51 (1957); W. Rawle, A View of the Constitution of the
United States of America 122 (1825) (hereinafter Rawle)."
91. On January 21, 1790, the 1st President of the United States, George
Washington, provided a report to the 1st Congress, 2nd Session a report
on the �Organization of the Militia� in which the initial plan for
raising a militia as presented. This report is important in this matter
as it provides the parameters described in the Heller Court at 2821
that �Constitutional rights are enshrined with the scope they were
understood to have when the people adopted them�� As this report to
Congress by President Washington when combined with the initial proposal
of the Bill of Rights by James Madison as it provided the Heller
standard of ��scope they were understood to have when the people
adopted them��
92. The issue of the Militia of all citizens was raised prior to the
Second Amendment being ratified, and by reviewing the ��the scope they
were understood to have when the people adopted them�� between July 1776
and January 1790 the rationale and �understanding� present just prior to
the Second Amendment being debated, and then ratified provides the
��scope they were understood to have when the people adopted them��
93. Further the vision of Congress of the �well regulated militia, was
manifest in law made immediately following the signing of the Bill of
Rights, with the Militia Acts of 1792, and with the refinements thereto
that took place up to 1800. �The scope� in which the 2nd Amendment as
passed, and the meanings and intensions of the founders are documents in
the laws which they passed to refine and define the 2nd Amendment.
94. Against that backdrop, the framers saw the personal right to bear
arms as a potential check against tyranny. Theodore Sedgwick of
Massachusetts expressed this sentiment by declaring that it is:
"a chimerical idea to suppose that a country like this could ever be
enslaved . . . Is it possible . . . that an army could be raised for the
purpose of enslaving themselves or their brethren? or, if raised whether
they could subdue a nation of freemen, who know how to prize liberty and
who have arms in their hands?" - Jonathan Elliot, The Debates in the
Several State Conventions on the Adoption of the Federal Constitution 97
(2d ed. 1863)
95. Noah Webster similarly argued:
�Before a standing army can rule the people must be disarmed; as they
are in almost every kingdom in Europe. The supreme power in America
cannot enforce unjust laws by the sword; because the whole body of the
people are armed, and constitute a force superior to any band of regular
troops that can be, on any pretence, raised in the United States. - Noah
Webster, An Examination into the Leading Principles of the Federal
Constitution (1787), Reprinted in Pamphlets on the Constitution of the
United States, Published During Its Discussion by the People, 1787-1788,
at 56 (Paul L. Ford, ed. 1971) (1888)
96. George Mason argued the importance of the militia and right to bear
arms by reminding his compatriots of England's efforts�
"to disarm the people; that it was the best and most effectual way to
enslave them . . . by totally disusing and neglecting the militia." He
also clarified that under prevailing practice the militia included all
people, rich and poor. "Who are the militia? They consist now of the
whole people, except a few public officers." Because all were members of
the militia, all enjoyed the right to individually bear arms to serve
therein - Jonathan Elliot, The Debates in the Several State Conventions
on the Adoption of the Federal Constitution 425 (3d Ed. 1937)
97. The framers thought the personal right to bear arms to be a
paramount right by which other rights could be protected. Therefore,
writing after the ratification of the Constitution, but before the
election of the first Congress, James Monroe included "the right to keep
and bear arms" in a list of basic "human rights", which he proposed to
be added to the Constitution.
98. Patrick Henry, in the Virginia ratification convention June 5, 1788,
argued for the dual rights to arms and resistance to oppression:
�Guard with jealous attention the public liberty. Suspect everyone who
approaches that jewel. Unfortunately, nothing will preserve it but
downright force. Whenever you give up that force, you are inevitably
ruined.�- Speech on the Federal Constitution, Virginia Ratifying
Convention, 1788
99. While both Monroe and Adams supported ratification of the
Constitution, its most influential framer was James Madison. In
Federalist No. 46, he confidently contrasted the federal government of
the United States to the European kingdoms, which he contemptuously
described as "afraid to trust the people with arms." He assured his
fellow citizens that they need never fear their government because of
"the advantage of being armed...."
100. By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and
Connecticut ratified the Constitution without insisting upon amendments.
Several specific amendments were proposed, but were not adopted at the
time the Constitution was ratified. For example, the Pennsylvania
convention debated fifteen amendments, one of which concerned the right
of the people to be armed, another with the militia. The Massachusetts
convention also ratified the Constitution with an attached list of
proposed amendments. In the end, the ratification convention was so
evenly divided between those for and against the Constitution that the
federalists agreed to amendments to assure ratification. Samuel Adams
proposed that the Constitution:
�Be never construed to authorize Congress to infringe the just liberty
of the press, or the rights of conscience; or to prevent the people of
the United States, who are peaceable citizens, from keeping their own
arms; or to raise standing armies, unless when necessary for the defence
of the United States, or of some one or more of them; or to prevent the
people from petitioning, in a peaceable and orderly manner, the federal
legislature, for a redress of their grievances: or to subject the people
to unreasonable searches and seizures.�
101. To ensure utter clarity in this pleading, we can consider the
recorded opinion of many of the philosophies that were present at the
time, and we can peer into the original meaning and the original intent
of the original authors.
a. �To disarm the people is the best and most effective way to enslave
them.� � George Mason, 1788
b. �A militia, when properly formed, are in fact the people
themselves�and include all men capable of bearing arms.� � Richard Henry
Lee, 1788
c. �Congress have no power to disarm the militia. Their swords, and
every other terrible implement of the soldier, are the birthright of
an American� The unlimited power of the sword is not in the hands of
either the federal or state government, but, where I trust in God it
will ever remain, in the hands of the people.� � Tench Coxe (delegate
for Pennsylvania to the Continental Congress), Pennsylvania Gazette,
Feb. 20, 1788.
d. �The power of the sword, say the minority..., is in the hands of
Congress. My friends and countrymen, it is not so, for The powers of the
sword are in the hands of the yeomanry of America from sixteen to sixty.
The militia of these free commonwealths, entitled and accustomed to
their arms, when compared with any possible army, must be tremendous and
irresistible. Who are the militia? Are they not ourselves? Is it feared,
then, that we shall turn our arms each man against his own bosom.
Congress has no power to disarm the militia. Their swords and every
terrible implement of the soldier are the birthright of Americans. The
unlimited power of the sword is not in the hands of either the federal
or state governments but where, I trust in God, it will always remain,
in the hands of the people.� � Tench Coxe, Pennsylvania Gazette, Feb.
20, 1788.
e. �Laws that forbid the carrying of arms...disarm only those who are
neither inclined nor determined to commit crimes.... Such laws make
things worse for the assaulted and better for the assailants; they serve
rather to encourage than to prevent homicides, for an unarmed man may be
attacked with greater confidence than an armed man.� � Thomas Jefferson
"Commonplace Book," 1774-1776, quoting from On Crimes and Punishment, by
criminologist Cesare Beccaria, 1764
f. �The constitutions of most of our States assert, that all power is
inherent in the people; that they may exercise it by themselves,�or they
may act by representatives, freely and equal
ly chosen; that it is their right and duty to be at all times armed�� �
Thomas Jefferson, 1824
g. �On every question of construction (of the Constitution) let us carry
ourselves back to the time when the Constitution was adopted, recollect
the spirit manifested in the debates, and instead of trying what meaning
may be squeezed out of the text, or invented against it, conform to the
probable one in which it was passed.� � Thomas Jefferson, letter to
William Johnson, June 12, 1823, The Complete Jefferson, p. 322
h. �That the said Constitution shall never be construed to authorize
Congress to infringe the just liberty of the press or the rights of
conscience; or to prevent the people of the United States who are
peaceable citizens from keeping their own arms�� � Samuel Adams, 1850
102. The Second Amendment to the Constitution of the United States was
adopted on December 15, 1791, along with the rest of the Bill of Rights.
However, within six months of the Bill of Rights being adopted, Congress
passed to acts to refine and direct control the militia, and to place
direction upon individual citizens who were now legally required to keep
arms at all times, and to be able to bear arms. The Second Amendment did
not actually create a right to arms, rather it memorialized a right that
was in existence well prior to the creation of Amending of the
Constitution. However, by the incorporating of the right to arms into
the founding documents of this country the mechanism was engaged to
require all citizens to unquestionably have arms in their home, and this
universal requirement of arms would lay the initial basis for the militia.
103. Once the right to keep and to bear arms was memorial, which
permitted all citizen a right to arms for their on personal defenses,
facilitating a natural right to self-defense, and other lawful uses, it
then enabled the people to start forming the Militia that the Congress
and the President had spoken about strongly.
104. The Militia Acts of 1792 were a pair of statutes enacted by the
Second United States Congress in 1792. The acts provided for the
organization of the state militias and provided for the President of the
United States to take command of the state militias in times of imminent
invasion or insurrection. This authority was directly used to suppress
the Whiskey Rebellion in 1794.
105. What is particularly poignant in regards to the Militia Acts of
1792, is that the Bill of Rights was introduced by James Madison to the
1st Congress in 1789, and then came into effect by ratification on
December 15, 1791. But, it was on March 2, 1792 that Massachusetts
became the 12th state to ratify the Bill of Rights, which included
provisions for the public to be allowed to keep, and to bear or carry
arms; to practice the religion or faith of their choosing, if any; and
should they be so industrious to be allowed to obtain a printing press,
and to operate either for their own edification, or to the edification
of others.
106. Thus, the time between the ratification of the Second Amendment and
the passing of the Militia Acts of 1792 was a matter of mere months.
107. The intensions of Congress in first passing the Second Amendment
and then almost immediately passing the Militia Acts of 1792 are quite
clear, wherein they required protection of the ancient right to arms for
self defense, and defense of the country, but also expanded and directed
these rights and requirements to include very specific minimal
requirement of arms of citizens. Thus, both the Second Amendment and the
Militia Acts are inexplicably interwoven and intertwined.
108. Congress first laid down the right to arms as a personal and
individual right of citizenship. Then, once this personal right to arms
was established, certain arms were then required to be possessed and
maintained, and upon these arms the militia were formed. However, there
could be no militia unless there was first individual possession of
arms, and before that a constitutional protection on the keeping and
bearing of arms.
109. Additionally in District of Columbia v. Heller, 128 S. Ct. 2783
(2008) on page 2821, the Supreme Court provides the observation:
�A constitutional guarantee subject to future judges' assessments of its
usefulness is no constitutional guarantee at all. Constitutional rights
are enshrined with the scope they were understood to have when the
people adopted them, whether or not future legislatures or (yes) even
future judges think that scope too broad. We would not apply an
"interest-balancing" approach to the prohibition of a peaceful neo-Nazi
march through Skokie. See National Socialist Party of America v. Skokie,
432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (per curiam). The First
Amendment contains the freedom-of-speech guarantee that the people
ratified, which included exceptions for obscenity, libel, and disclosure
of state secrets, but not for the expression of extremely unpopular and
wrong-headed views. The Second Amendment is no different. Like the
First, it is the very product of an interest-balancing by the people...�
110. If we take the Militia Act of 1792 (passed mere weeks after the
Second Amendment was ratified) we can discover that "enshrined with the
scope they were understood to have when the people adopted them" which
the Heller Court speaks of. In fact we can use the exact wording of the
Militia Act of 1792 and the aforementioned opinions of the Supreme Court
and I assert that the right to arms that exists this very moment (in the
understanding of the 1790 time frame).
111. The Militia Act of 1792 (May 1792) is known by the full title of
�An act more effectually to provide for the National Defense, by
Establishing an Uniform Militia Throughout the United States [May 8,
1792]� � Section 1
��it shall at all times hereafter be the duty of every such captain or
commanding officer, of a company to enroll every such citizen [in
the militia]��
��That every Citizen so enrolled shall, from and after he shall be duly
notified of his enrolment be constantly provided with a good musket or
firelock, a sufficient bayonet and belt, two spare flints, and a
knapsack, a pouch with a box therein to contain not less than
twenty-four cartridges, suited to the bore of his musket or firelock,
each cartridge to contain a proper quantity of powder and ball : or with
a good rifle, knapsack, shot pouch and powder horn, twenty balls suited
to the bore of his rifle, and a quarter of a pound of powder ; and shall
appear, so armed, accoutred and provided, when called out to exercise,
or into service, except, that when called out on company days to
exercise only, he may appear without a knapsack�� [Note; The �musket
or firelock� described in this passage is the .75 caliber flintlock
muskets, which were the standard long guns of the British Empire's
infantry or land forces from 1722 until 1838. The Long Land Pattern
(10.4 pounds, 46 inches without bayonet, 62.5 inches with bayonet, was
used by both sides in the Revolutionary War.]
��That the commissioned officers shall severally be armed, with a sword
or hanger, and espontoon�� [in addition to the aforementioned arms of
the foot solider] [Note: a �espontoon� is a type of 6 to 7 foot lance
and battle-axe, used both as a edged weapon and a signaling device to
help direct infantry troops].
��from and after five years from the passing of this act, all muskets
for arming the militia as herein required, shall be of bores sufficient
for balls of the eighteenth part of a pound�.� [note: This describes a
projectile weighing roughly 388.9 grains, or over twice the weight of
the .30-06 projectiles of 150 grains used in World War I, and the 173
grain version used after the war. Indeed the projectile described in
this passage is that of a .75 caliber bullet (in the form of a lead
ball), which as dramatically larger then the modern .50 BMG projectile
(this is slightly heavier, but much longer). Nonetheless, this passage
describes a long range firearms, that exceed the .30-06 rounds in
antiquity by at least two fold, and is larger then the .50 BMG round of
modern arms.
��And every Citizen so enrolled and providing himself with the arms,
ammunition and accoutrements required, as aforesaid, shall hold the same
exempted from all suits, distresses, executions or sales, for debt or
for the payment of taxes�� [Note: under current Massachusetts Statute
these arms are still recognized as individual possession of the citizen,
and hence by this statute the Commonwealth acknowledges that the Militia
of 1792 is still in existence].
��the commissioned officers to furnish themselves with good horses, of
at least fourteen hands and an half high, and to be armed with a sword
and pair of pistols, the holsters of which to be covered With
bearskin caps��
��Each dragoon to furnish himself with a serviceable horse, at least
fourteen hands and an half high, a good saddle, bridle, mailpillion [a
type of heavy saddle bag] and valise [with food, clothing, and supplies,
instead of a infantry knapsack], holsters and a breastplate and crupper
[saddle harness], a pair of boots and spurs, a pair of pistols, a sabre,
and a cartouch box, to contain twelve cartridges for pistols....�
[Note: a �Dragoon� is a horse mounted infantryman, who would possess all
of the arms of the foot borne infantrymen, but also additional arms
suitable for use while on a horse.]
112. Thus, by operation of the Militia Act of 1792, the U.S. Government,
and the states (to include the Commonwealth of Massachusetts) recognized
that citizens has the right to keep and bear pistols, shotguns, muskets,
and both large bore (.75 caliber), and long-range firearms suited for
use on the field of battle or rather �assault rifles.� As the Supreme
Court recognized in McDonald, that while the technologies and weapo
ns of warfare has changed over the centuries, the Constitution and the
Amendments thereof remain the same by which modern arms replace antique
arms.
113. Also, Congressional papers, debates in Congress, and reports in
relationship to the Militia that date from between 1789 and 1794 which
span the point in history of the signing of the Second Amendment and the
Militia Acts of 1792 so that the actual words and meaning of the
original writers, and the reports, intent, understanding and laws that
existed at the time of the Second Amendment can be clearly understood,
and must be carried forward into modern times.
114. The timeline of events and legislative matters between 1789 and
1792, and more particularly the events between December 1791 and May
1792 provide solid proof as to the original intentions of Congress; that
of first codifying law that formally empowered all citizens to possess
arms, and then to take these armed citizens and create from them a
nationwide militia of armed citizens, armed with their own personal arms
(separate from the standing army). Without the law recognizing the right
of all citizens to arms, the Militia Acts of 1792 would have been moot
as Congress lacked the funds to arm the entire public.
115. It is notable that U.S. Citizens at the time of the signing of the
Constitution and the Bill of Rights already were well armed, and this
right to arms of the citizens was a tenant of English law which defined
a core right of both self defense, and defense of the country.
116. The First Militia Act, passed May 2, 1792, provided for the
authority of the President to call out the militias of the several
states, "whenever the United States shall be invaded, or be in imminent
danger of invasion from any foreign nation or Indian tribe." The law
also authorized the President to call the militias into Federal service
"whenever the laws of the United States shall be opposed or the
execution thereof obstructed, in any state, by combinations too powerful
to be suppressed by the ordinary course of judicial proceedings, or by
the powers vested in the marshals by this act.� This provision likely
referred to uprisings such as Shays' Rebellion. The president's
authority in both cases was to expire after two years. These militias of
the several states could not be called out if they were not first
lawfully armed with their own arms. This Militia Act was repealed and
replaced with the Militia Act of 1795.
117. The Second Militia Act, passed May 8, 1792, provided for the
organization of the state militias. It conscripted every "free
able-bodied white male citizen" between the ages of 18 and 45 into a
local militia company. Militia members were to arm themselves with a
musket, bayonet and belt, two spare flints, a cartridge box with 24
bullets, and a knapsack. Men owning rifles were required to provide a
powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch,
and a knapsack. Some occupations were exempt, such as congressmen,
stagecoach drivers, and ferryboatmen. Otherwise, men were required to
report for training twice a year, usually in the Spring and Fall. This
Second Militia Act (May 8, 1792) has not yet been repealed.
118. Again, through operation of Second Amendment, the entire population
of citizens (with certain citizens disqualified such as felons and the
insane) was thus proactively protected from any federal or state agency
from restricting personal arms possession, or keeping, or the bearing of
arms, and as the population was lawfully armed (by operation of the
Second Amendment), they could be called up for militia service (using
their own arms).
119. But, the right to arms (by operation of the Second Amendment)
existed prior to the Militia Acts of 1792, and speak to a personal right
to keep and bear arms that was present under English law, and present
under the Christian faith.
120. The authority to call forth the militia was first invoked by George
Washington to put down the Whiskey Rebellion in Western Pennsylvania in
1794, just before the law granting that authority expired. Congress
quickly passed the Militia Act of 1795, which made the provisions of the
1792 Militia Act permanent.
121. The Center of Military Studies, of the United States Army,
publishes a series of books of American Military History, and in
Volume One �The United States Army and the Forging of a Nation, 1775 �
1917� the U.S. Army itself provided a insightful narrative into the core
origins of the militia and the intertwining of the Second Amendment
around it:
�The Constitution gave Congress the exclusive power to declare war,
raise armies, and provide for a navy. It also empowered Congress to call
forth the militia �to execute the Laws of the Union, suppress
Insurrections and repel Invasions.� But authority over the militia was a
shared power. Congress could provide for organizing, arming, and
disciplining the militia and governing �such Part of them as may be
employed in the Service of the United States,� but the Constitution
specifically reserved to the states the authority to appoint militia
officers and to train the militia �according to the discipline
prescribed by Congress.�
�The militia issue was also central to the shaping of the Second
Amendment to the Constitution: the right to keep and bear arms. If the
founding fathers recognized the centrality of freedom of speech, the
press, and assembly, they also made clear those freedoms would only
remain secure if the people could keep and bear arms as an ultimate
check on the power of the government. The Second Amendment has been much
politicized since its adoption as part of the Bill of Rights, but there
is no question that the architects of our government believed that the
people in arms�the militia�were the final guarantors of our freedom. Any
subsequent reinterpretations of that amendment must start with the fact
that our leaders, fresh from their experiences in the Revolutionary War,
relied on the militia as the centerpiece of our national military
establishment. The concept of the militia and the right to bear arms are
inextricably joined.� � pages 112-113
122. These Militia Acts of 1792, were amended by the Militia Act of 1862
(12 Stat. 597, enacted July 17, 1862), which allowed African-Americans
to serve in the militias of the United States. They were supplemented by
the Militia Act of 1903, which established the United States National
Guard as the chief body of organized military reserves in the United
States, but which maintained the balance.
123. On April 23, 1808, a Militia Act of 1808, was passed entitled �An
Act Making Provision for Arming and Equipping the Whole Body of the
Militia of the United States� which established factories, sites, and
arsenals to manufacture the individually carried arms needed by the
infantry, and that a plan was initiated to be able to arm all citizens
by providing these arms to the states, and thence to the militias. While
this was an ambitious plan, the arsenals were never able to supply even
a fraction of the arms required due to the explosive growth of the
nation, and as each citizen was to be armed, the responsibility to
obtain arms fell to the citizen as the Federal government was incapable
of producing arms fast enough.
124. The Militia Acts of 1792, Militia Act of 1795, and Militia Act of
1862 created a militia that grew historically ineffective as time went
on. By the time of the Spanish-America War the �militias� were poorly
maintain, poorly disciplined, and essentially impossible to control as a
cohesive military force. The Militia Act of 1903, bifurcated the
militia, and retained the original citizen militia of 1792, but brought
forth out of it also a National Guard force that was now called the
�Organized Militia.�
125. A very important Constitutional aspect of the Dick Act was that the
original militia (of all citizens, required to possess or keep arms)
established in 1792 continued unmodified, and were not disbanded, and
these citizen members were not disarmed or disbanded, and indeed upon
passage of the Dick Act was a CMP program through the U.S. Army to
re-arm the unorganized citizen militia members in a way that they were
sold gun directly from federal armories.
126. The militias were divided into "divisions, brigades, regiments,
battalions, and companies" as the state legislatures would direct. The
provisions of the first Act governing the calling up of the militia by
the President in case of invasion or obstruction to law enforcement were
continued in the second act. Court martial proceedings were authorized
by the statute against militia members who disobeyed orders.
127. The Militia Act of 1903 (32 Stat. 775), also known as the �Dick
Act� (also known as the �Efficiency of Militia Bill H.R. 11654, of
June 28, 1902�), was initiated by United States Secretary of War Elisha
Root following the Spanish�American War of 1898 (�Ten Week War�), after
the war demonstrated the profound weaknesses in a militia call-out, and
in the serious weaknesses in the entire U.S. military as well.
128. On February 5, 1900, the Secretary of War, Elisha Root published a
report in regards to the post Spanish-America War regarding status of
the Organized Militia/National Guards, and the status of the unorganized
militia (the rest of the citizens). This letter may be found as �House
Document No. 388, Fifty-sixth Congress, first session� and is described
by the author as an �abstract of the militia forces of the United
States� and based on a study spanning from 1898 to 1899, and published
in 1900. For example, for the Commonwealth of Massachusetts this
abstracts lists a total of 5,185 members of the organized militia, and
453,537 of the unorganized militia. The report further states that the
grand aggregate numbers of the nationwide organized militia was 106,339
members, plus 10,343,152 m
embers of the unorganized militia. This report to Congress further
details that of the 106,339 organized militia members that 93,812
(88.2%) were designated for infantry service, which proves that the
militia is primarily infantry in nature, and thus infantry weapons the
most natural arms for militia service. As the report designates that
there were 106,339 organized militia members and 10,343,152 members of
the unorganized militia that roughly for every 98.2 citizens who was in
the unorganized militia that there as only one in the organized militia
129. Indeed, the appalling performance of the U.S. Militia forces in the
Spanish-American War proved to be a decidedly unreliable fighting force,
and in 1901, President Theodore Roosevelt declared: "Our militia law is
obsolete and worthless," and an effort was undertaken to immediately
refresh the Militia by way of increased funding and updates Militia Laws
(which became the Militia Act of 1903), established dual-enlistment, and
the harmonized the state militias under federal Army training standards,
arms, and procedures.
130. The comment by President Theodore Roosevelt is heralded by some
critics of the militia as repealing or nullifying the Militia Acts of
1792, but the Militia Act of February 2, 1901 merely affected cavalry
troops (not the unorganized militia), it did not repeal the Militia Acts
of 1792, and indeed to this day the Militia Acts of 1792 remain
generally intact, although amended.
131. In 1898 the National Guard was still governed by the amended
Militia Act of 1792 and almost completely funded, organized, and
administered by state governments. But the mobilization of state
military forces for the Spanish-American War in 1898, while much more
effective than the mobilizations of 1846 and 1861, did clearly
demonstrate that the Guard was not a reserve force fit for modern
conditions. As a result, most of the units organized for the war had a
cadre of Guard officers and noncommissioned officers and large numbers
of enlisted men with no prior military training. Federal service
revealed that the training of Guardsmen in all aspects of military
operations was, for the most part, grossly inadequate to the demands of
active duty and extended field operations.
132. The Act formulated the concept of the National Guard and ensured
that all state military forces were simultaneously dual reservists under
the authority of the Army Reserve. This last measure was to prevent
state governors from using National Guard forces as "private armies", in
many ways as had been done in the American Civil War with the militia
and to ensure that the President could, at any time, mobilize state
military forces into the federal armed forces.
133. A great factor in the Militia Act of 1903 was the German analysis
of the Spanish-American War, where under Kaiser Wilhelm II (1900):
�The invasion of the United States was considered vital by many within
the reticent German General Staff. The plan was of great detail, and it
included an attack on America's Eastern Seaboard with 60 ships and
100,000 men. They planned to start off by shelling Manhattan and
capturing Boston.� - Hew Strachan, The First World War: Volume I: To
Arms', (Oxford, 2003)
134. In 1903, Eberhard von Mantey, a war planner with the German
Admiralty Staff, wrote in his diary that the:
"East Coast is the heart of the United States and this is where she is
most vulnerable. New York will panic at the prospect of bombardment. By
hitting her here we can force America to negotiate." - Jonathan Lewis,
The First World War
135. Imperial German plans for the invasion of the United States were
ordered by Germany's Emperor Kaiser Wilhelm II from 1897 to 1903.
Wilhelm II did not intend to conquer the US; he wanted only to reduce
the country's influence much the same way that the British had �humbled�
the rebellious Americans for invading Canada in 1812. His planned
invasion was supposed to force the US to bargain from a weak position;
to sever America's growing economic and political connections in the
Pacific, the Caribbean and South America; and to increase Germany's
influence in those places.
�The first plan was made in the winter of 1897�1898, by Lieutenant
Eberhard von Mantey; it mainly targeted American naval bases in Hampton
Roads in order to reduce and constrain the US Navy and threaten
Washington, D.C.. In March 1899, after significant (yet arguable) gains
made by the US in the Spanish�American War, the plan was altered to
focus on a land invasion of New York City and Boston. In August 1901,
Lieutenant Hubert von Rebeur-Paschwitz spied on the target areas and
reported back. A third plan was drawn up in November 1903 by naval staff
officer Wilhelm B�chsel, called Operation Plan III (Operationsplan III
in German), with minor adjustments made to the amphibious landing
locations and immediate tactical goals.�
�The Imperial German Navy under Alfred von Tirpitz expanded greatly from
1898 to 1906 but was never large enough to carry out the plans. The
German Army under Alfred von Schlieffen, responsible for at least
100,000 troops in the invasion, was certain the proposal would end in
defeat. The plans were permanently shelved in 1906 and did not become
public until 2002 when they were rediscovered in the German military
archive in Freiburg.� -- Sietz, Henning (8 May 2002). "In New York wird
die gr��te Panik ausbrechen: Wie Kaiser Wilhelm II. die USA mit einem
Milit�rschlag niederzwingen wollte"
136. U.S. Senator Charles W. F. Dick, a Major General in the Ohio
National Guard and the chair of the Committee on the Militia, sponsored
the 1903 Act towards the end of the 57th U.S. Congress. Under this
legislation, passed January 21, 1903, the organized militia of the
States were given federal status to the militia, and required to conform
to Regular Army organization within five years. The act also required
National Guard units to attend 24 drills and five days annual training a
year, and, for the first time, provided for pay for annual training. In
return for the increased Federal funding which the act made available,
militia units were subject to inspection by Regular Army officers, and
had to meet certain standards.
137. The Militia Act of 1903 was greatly in response to the fears of
Germans troops invading the United States by way of the North East,
starting with Boston and the bombardment of New York City, with the
German invasion force actually using Boston as the primary invasion
point and then sweeping 100,000 armed German troops into the Boston area
as the initial invasion force.
138. The Militia Act of 1903 still retained the militia, but took a
small percentage of this �militia� and formally converted these to
�Organized� militia with rigorous courses of study that is essentially
based on the regular military forces, while the rest of the citizenry
remains in the original militia defined in 1792. Indeed, even to this
day the militia remains as �all citizens who are capable of bearing
arms, even the elderly, infirm or disabled.�
Paradigm Shifts of the Militia
139. The community based militias as they were established in 1792
progressively fell into poor discipline over the ensuring 68 years, and
weekly or monthly militia musters (for some U.S. Citizens) devolved into
little more then drinking and hunting parties, and in some cases
fugitive squads, �runaway slave hunting� and lynching parties, and in no
way did they resemble any sort of cohesive group capable of military
operations
140. The community based militia were of tremendous value during the War
of 1812, when the militias (using their own personal arms) almost
overnight become a fighting force of over 450,000 fighters to supplement
the roughly 7,000 professional soldier in the Army at the time, and
provided the British with a second statement of independence. While
the militia�s responded �enthusiastically� to the call to arms to defend
their shores, their �enthusiastic numbers� (of close to a half million)
were an utter fiasco due to disorganization as very few citizens had
taken militia or military service with due seriousness. While one in
thirty-one American militia members died, compared to the British
casualties of one in roughly eighteen (the British were 172% more
effective in combat). The British marshaled a combined fighting force of
roughly 29,200 and the Americans of roughly 470,000 (a 16:1 ratio), and
the British causalities were remarkably low, the assaults on U.S. cities
and forts devastating and the U.S. Militia could not muster, mobilize or
move fast enough to repel the British. The �War of 1812� served as an
utter humiliation to the United States, and also to Britain and Canada
essentially ended in a stalemate, burning and sacking of Washington DC,
and then a Treaty, but no actual definitive winner.
141. Indeed, at the end of the Battle of Yorktown (during the
Revolutionary War), Benjamin Franklin is quoted as saying: "The War of
Revolution is won, but the War for Independence is yet to be fought."
This �War of Independence� did not stimulate hostilities until 1807
(when England imposed trade restrictions in the United States, and began
harassing American Ships), and then the United State (in error) declared
war and instigated open warfare in 1812 due to American military
incursions into Canada.
142. While the cause of the War of 1812 is academic, from a military
perspective the only reason that the British attempted to �chastise
and humble� the �Arrogant Americans� ultimately failed was the
mobilizations of the well-armed citizen militia (with their own
weapons), which the British had utterly not expected. It was thus, that
America established, finally that she as utterly independent from
England, and not merely in revolt or insurrection. However, in the
writings of military leaders after the War of 1812, there was expressed
a desire (as early at 1816) to form the militias into a more formidable
and cohesive force, and not merely roving bands of hunters.
�Militia Laws of the United States and of the Commonwealth of Massachusetts�
143. In 1840, in the book �Militia Laws of the United States and of the
Commonwealth of Massachusetts, together with extracts from the United
States and State Constitutions, in relationship Thereto� written by
Henry A.S. Dearborn, Adjutant General of Massachusetts (a military
commander for the Commonwealth) the issue of the militia was commanded,
desired, and empowered in a way that had not been performed previously.
This short book in included with this pleading as [Exhibit 1].
144. The Senate and the House of Representatives of Massachusetts
resolved (March 24, 1840) that this book be published by State printers
(and as to be possessed by all Militia Officers), and that this book
defined the militia and the laws of both the Commonwealth and of the
Federal government as they applied to the Commonwealth. There is no
record of the resolve that created and published this book was ever
reversed or dissolved.
�Commonwealth of Massachusetts
IN THE YEAR ONE THOUSAND EIGHT HUNDRED AND FORTY.
RESOLVE
CONCERNING THE LAWS RELATING TO THE MILITIA.
Resolved, That the Adjutant General be, and he is hereby required, to
prepare and cause to be printed in a convenient form, a digest of the
existing laws of the Commonwealth, in relation to the Militia, and to
forward copies of the same to all the Commissioned Officers of the
Militia of this Commonwealth, and to the Assessors and Town Clerk of
each Town.
House of Representatives, March 24, 1840, Passed
ROBERT C. WINTHROP, Speaker.
In Senate, March 24, 1840, Passed
DANIEL P. KING, President
March 24, 1840.- Approved.
MARCUS MORTON.�
145. In the past (post-1792, pre-1840) books of military science had
been quite scholarly and well written, but they did not rise to become
actual law in a meaningful way, nor were they previously so forcefully
ordered and imposed on the militia by their commanders by operation of
the legislature. The majority of these books from 1792 to 1840 were
primarily written for military officers, and not the individual militia
members). With this book by Dearborn in 1840 [Exhibit 1], the
Commonwealth of Massachusetts, through its own Militia Commander became
the first State to directly address this in a meaningful way, in a way
that was actually useful to, and which could be understood the general
citizenry (who were the actual Militia).
146. This book is notable as it was authored, published, and entered as
a statute AFTER the War of 1812, but prior to the beginning of the Civil
War (of 1861), and that it exceeds the persuasive value of a merely
scholarly article on the topic at the time, and rather it is an actual
Commonwealth of Massachusetts statue on the topic for that period of time.
147. Under Article 10 of the Massachusetts Constitution of October 25,
1780 the author described that the individual citizen only obtains their
right to life, liberty, and property by providing his personal service
in the defense of others (by way of militia service, or its equivalent).
148. The same author explains that under Article 17, the people have a
right to keep arms. as The Supreme Court of the United States would in
later years rule that �the people� means �individual citizens� and not
the collective people when this Article written in 1840 (by the
Commander of all Militia forces in the Commonwealth) spoke to individual
rights and individual responsibilities and not collective rights and
responsibilities.
149. On page eight (8) of this book, the author presents extracts from
the Constitution of the United States (which went into operation March
4, 1789). To the left of the entry on regards to the Second Amendment
the author has listed this Amendment is in regards to the �Right to
Keep Arms.� Not only has the 57th Congress, and the Supreme Court
defined this �Right to Keep Arms� as an individual right, but also it is
to listed in this military law book as a individual right and
responsibility.
150. In the lead up to the Civil War (1850-1861), and during the Civil
War itself (1861-1865), the community based militia groups were often
used by community leaders as their own personal armies, and members of
the judiciary in the South used unlawfully them to enforce slave codes.
In the post Civil War period, the militias of the South were used to
persecute the newly freed negroes and to engage in acts of organized
insurrection, requiring that the U.S. Army intervene to enforce the law
upon state and country officers, and quite often judicial officers who
were using their local militia, which resulted in the ratification of
the 14th Amendment (in 1868).
151. On page 9 of this book it is listed that �Every citizen to be
enrolled� with certain exceptions, in accordance with the Militia Act of
May 8, 1792. These arms and their accouterments were to be supplied by
the citizen, based on their rank and position in the Militia.
152. On page 10, it is forcefully stated that �And every Citizen so
enrolled and providing himself with the arms, ammunition and
accoutrements required, as aforesaid, shall hold the same exempted from
all suits, distresses, executions or sales, for debt or for the
payment of taxes.�
153. In even the most liberal reading of page 10 still clearly requires
the citizen to procure and to maintain their own arms, essentially the
assault weapons of their era.
154. The Massachusetts Militia Laws, of April 24, 1840, section 5
provides (essentially draft registration):
�Every able-bodied white male citizen, resident within this
Commonwealth, who is or shall be over the age of eighteen years, and
under the age of forty five years, excepting persons enlisted into
volunteer companies, persons absolutely exempted by law, idiots,
lunatics, common drunkards, vagabonds, paupers, and persons convicted of
any infamous crime in this or any other state, shall be enrolled in
the militia.�
155. The Massachusetts Militia Laws, of April 24, 1840, section 36
through sections 42 provides requirements that the militia members
themselves provide ammunition, arms, uniforms, and other accouterments.
156. In Section 43 of the same Massachusetts Militia laws of 1840, it is
listed that the Commonwealth is to provide rifles, muskets (shotguns),
sabers, belts, swords, and pistols, but the armories of the Commonwealth
and the local town or city armories lacked sufficient arms to provide
for only a small fraction of the militia of all citizens. Indeed, when
the Civil War broke out on April 12, 1861 (21 years after this
Massachusetts Militia Statute as passed), the Commonwealth still lacked
the ability to arm the entire militia, and many members of the militia
were issues pointy sticks instead of rifles.
157. In Section 99 of the Massachusetts Militia laws of 1840 listed
punishments for members of the militia who came to drills and
inspections and their own personally owned arms were inspected, not the
Government arms.
"Sec 99. Every non-commissioned officer or private, who shall appear at
any inspection on the last Wednesday in May, or at any company training,
or at any inspection and review, whose equipment are deficient, or of a
bad quality, shall forfeit and pay the sums hereinafter mentioned, for
each of the following articles deficient, of a bed quality, or in bad
condition:
A musket, a bayonet, or belt, an iron or steel ramrod, either or all of
them, one dollar.
A cartridge box and twenty-four cartridges, suited to the bore of his
musket, and containing a proper quantity of good powder and ball, and a
serviceable knapsack, either 01' all of them, thirty cents ; provided,
nevertheless, that the ball cartridges may be produced and kept,
according to the provisions of the eighty-third section; and the
knapsack may be dispensed with at company trainings.
Two spare flints, a priming wire and brush, either or all of them,
twenty cents; provided, that none of the above forfeitures shall be
incurred by any private, in a rifle company, who appears with a good
rifle and powder horn, knapsack, shot pouch, and a quarter of a pound of
powder, and twenty balls suited to the bore of his rifle.
In any company raised at large, for deficiency or bad quality of the
uniform of the company, two dollars.
In any company of cavalry, for deficiency of a sword or sabre, belt and
pistols, all or either of them, one dollar.
Of any other article of equipment, fifty cents.
In any company of artillery, for deficiency of a sword and belt, all or
either of them, one dollar.
Of any other article of equipment, thirty cents.
In a Company of .riflemen, for a deficiency of a rifle, and a sufficient
ramrod, both or either of them, one dollar." pp 46-47
158. �Massachusetts Militia Laws, of April 24, 1840, General Order No.
2� (page 95-96), Adjunct General Dearborn states:
�As there is not a sufficient number of sabres, pistols, swords, and
rifles, for supplying all the companies of cavalry, artillery and
riflemen, they will be distributed by lot, - and the remaining companies
furnished, whenever the requisite number shall have been received from
the United States for that purpose.� (emphasis added)
159. As the various Militia Acts have required all citizens above a
certain age to be a member of some level of the militia, and requires
that ALL militia members (and hence, all citizens) to be currently
self armed� with actual modern assault weapons, ammunition, and
accoutrements or accessories.
160. Then as described in M.G.L. Chapter 35, Section 34 entitled
�Property exempt from execution� these arms, which the entire body of
the population (with a few minor exceptions) are exempt property.
161. As the National Guard of Massachusetts (as do the National Guards
of many other states
) does not permit National Guardsmen to bring their own government
issued weapons and arms from home, and they do not permit National Guard
weapons to be removed from the armories to be storage or kept by the
Guardsman in their own home.
162. Thus, M.G.L. by way of Chapter 35, Section 34 acknowledges that the
Militia is not the National Guard by virtue of the militia member having
a direct personal property interest in the arms that they possess in the
home for militia duty. In short, the arms described by Chapter 35,
Section 34 described arms in the hands of the citizen militia member,
and that all citizens above a certain age are members of the militia.
Ergo, these exempted arms prove that the Commonwealth of Massachusetts
recognizes the regular militia (described elsewhere in the statute as
the �unorganized militia). [�� the arms and accoutrements required by law��]
163. The Militia Law text published by the Commonwealth also mandates
the keeping of swords at the bottom of pages 9, and on page 11, the
requirement of other elements of the militia to self acquire and self
possess a pair of pistols, holsters. Breastplate and cruppers, boots, a
saber and certain ammunition loads for the pistols (24+ pistols rounds).
164. On page 17, or the statue, the author lists the Militia Act of
April 23, 1801, but all that this Act did was establish Federal
Armories, and fund supplying federal arms to the militia members and
some of the arms being brought to muster were not suitable for military
use due to disrepair.
165. One page 20, the author present chapter 12 of the revised
statutes of �Massachusetts Militia Laws� (effective April 24, 1840).
166. On page 21, under the Section Entitled �Enrolled Militia� there is
a list of citizens qualified to service in the militia �Every
able-bodied white male citizen, resident within this Commonwealth.� But
it is also notable that Massachusetts directly prohibited certain
disqualified certain citizens from any form of militia service to
include women, blacks, Orientals, and also �idiots, lunatics, common
drunkards, vagabonds, paupers, and persons convicted of any infamous
crime in this or any other state� � Section 5
167. Under Section 8 of the Act, � The militia, thus enrolled, shall be
subject to no active duty whatsoever except in case of war, invasion, or
to prevent invasion.� In the Militia Act of 1903 these became the
Reserve or unorganized militia.
168. Under Section 10, of this book the �Volunteer Militia� become the
fore-runner of the National Guard, but the enrolled militia as clearly
define to be separate from the �Volunteer Militia�
169. On page 31 of this book the arms of the militia are further
defines, between what is required that the militia member purchase and
provide themselves, and what items will be provided by the state.
�Sec. 39. Every officer of the line and staff, and every officer and
soldier of any company raised at large, shall provide himself with an
uniform complete, which shall be such as the commander in chief shall
prescribe, and subject to such restrictions, limitations, and
alterations as he may order ; and every such soldier deficient therein
shall be liable to the penalty provided in the ninety-ninth section.
Sec. 40. Every non-commissioned officer and private in a company of
cavalry shall furnish himself with equip a serviceable horse, at least
fourteen hands and a half high, a good saddle, bridle, mailpilion and
valise, holsters, and a breast-plate and crupper, a pair of boots and
spurs, and a cartouch box to contain twelve cartridges suited to his
pistols, and shall be liable, for. Deficiencies at any parade, to the
forfeitures provided in such case in the ninety-ninth section; and if
any unprovided commissioned officer or private shall, for more than
three months, be unprovided with a horse and equipments as aforesaid,
the commanding officer of his company may apply to the commanding
officer of the brigade, who shall discharge such non-commissioned
officer or private from such company.�
170. Also on page 31, under Section 41, it is listed that a company of
artillery shall posses the field pieces, and thus defines that which is
not considered an individual and personal arms, and those items which
were not typically individually possessed or owned (such as large
artillery and cannons, thousands of pounds of cannonballs, and hundreds
of pounds of gunpowder). Although, if a citizen of 1840 wished to invest
in their own personal cannon, or pieces of artillery they were permitted
to do so by law.
171. Page 32, continues to define that the volunteer militia would be
provided arms by the state, but that these arms were to eventually be
returned to the state (and not taken home).
172. Thus, the members of the regular militia were required to possess
personal militia arms, as were members of the Volunteer Militia.
However, when the volunteer militia were mobilized they left the
personal arms at home, and utilized state arms instead (or stored the
personal arms they brought with them at the armory, in order to use
government arms when such were available) . This is notable as both
classes of militia were still required to maintain or to keep arms at
home and to muster with them for drill.
173. What is quite important in this book is that citizen militia
members of either the regular militia (all white male citizens), or
member of the volunteer militia (or all citizens) could be punished with
fines for not having the requisite items in their personally supplied
possessions, or having their personally owned and kept arms and
accessories in proper condition and level of cleanliness and serviceability.
The Post Civil War Militia Reconstructions
174. In the post Civil War Reconstruction (post 1865) there was a
revival of sorts of the community and local based militia and to
reestablish them as a formidable force of armed, and well trained
citizens, with better controls, better rules, improvement in militia
laws, a better defined structure, standardized training and drills, but
a paucity of enthusiasm as the nation was still in grieving over the
losses of the Civil War.
175. As the U.S. Navy had started an emergency buildup of Naval power
after the Spanish�American War of 1898, and in 1903 the Militia Act
being passed, along with the U.S. setting up the CMP program (as part of
the Militia Acts of 1903), and selling or giving arms to all U.S.
citizens; the Germans and later the Japanese switched their attentions
away from invading the United States, and instead focused on European
domination, instead of global domination, thus leading to World War I.
a. Christian News, a Lutheran journal published in New Haven, Missouri,
US, published the following item in its Feb. 4, 2002 issue:
"In 1960, Robert Menard was a commander aboard the USS Constellation
when he was part of a meeting between United States Navy personnel and
their counterparts in the Japanese Defense Forces.
"Fifteen years had passed since VJ Day, most of those at the meeting
were WWII veterans, and men who had fought each other to the death at
sea were now comrades in battle who could confide in each other.�
"Someone at the table asked a Japanese admiral why, with the Pacific
Fleet devastated at Pearl Harbor and the mainland U.S. forces in what
Japan had to know was a pathetic state of unreadiness, Japan had not
simply invaded the West Coast.�
"Commander Menard would never forget the crafty look on the Japanese
commander's face as he frankly answered the question. " 'You are right,'
he told the Americans. ' We did indeed know much about your
preparedness. We knew that probably every second home in your country
contained firearms. We knew that your country actually had state
championships for private citizens shooting military rifles. We were not
fools to set foot in such quicksand.' "
176. Also, in 1903 there as a tremendous political and social push for
Colleges, Universities, Military Academies, and even High Schools to
establish rifle and pistol clubs, and shooting teams, all equipped with
the rifles and ammunitions being given away to schools as part of the
Dick Act.
177. The Germans in 1924, then revisited the invasion of the United
States, and began to rebuild their devastated military and manufacturing
facilities in the lead up to World War II, with an eye of first
dominating Europe, then England, and then invading the United States,
again by way of Boston and other major cities in the North East.
Three Classes of Militia
178. The three classes of militia described in the �Efficiency of
Militia Bill H.R. 11654, of June 28, 1902� provided for are the
�organized militia�, henceforth known as the National Guard of the
State, Territory and District of Columbia, the �unorganized militia�
(consisting of all citizens between the ages of 17 and 45, or 65 if they
are a veteran of the regular military, or they volunteer for duty) and
the �regular army� (which is a �standing army� which now includes the
Army, Navy, Marines, and Air Force).
179. For example, in 1902 the Massachusetts Militia was split into two
segments, one would be called the National Guard (also known as the
�organized militia�), and the other the �unorganized militia.�
180. Nothing changed for the unorganized militia from 1792 to 1902,
merely that a person could in 1903 enlist in the National Guard if they
wished to be more then just the unorganized militia, but did not wish to
join the full �Standing Army.� National Guardsmen also did not have to
supply their own arms and ammunitions starting in 1903, like the
unorganized militia was required by law to do.
181. Further, from 1792 until the present day (2012) nothing has changed
for the �unorganized militia� which still exists, and is an entity
recognized by both Federal and State Statute.
182. Additionally, the requir
ements of the Militia Acts of 1792 required that citizens provide their
own arms, and with the passage of the Militia Act of 1903 this
requirement was not lifted; so that members of the unorganized militia
were and are still are required to have arms of their choosing, suitable
for militia service� this includes the unorganized militia of the year
2012, who are required to possess assault weapons.
183. The regular Army was to be armed from the armories of the Federal
Government, the National Guard from state held armories, and the
unorganized militia from their own personally possessed arms and
ammunition (which they are mandated by law to possess, and which the
U.S. Army could sell directly to them at a deep discount).
184. The militia thus encompasses every able-bodied citizen (of both
genders) between the ages of 17 and 45 (or 65 in the case of a veteran
or volunteer).
185. All members of the unorganized militia have the federal
responsibility, absolute personal right, and 2nd Amendment right to keep
and bear arms of any type that is bearable and useable by the individual
militia member, as they can afford to obtain and become skilful with.
186. As some citizens are not financially capable of purchasing a
$16,000 custom fitted sniper rifle, with a $10,000 optical scope and a
$63,000 thermal sight, plus a custom fitted shotgun, and a brace of
custom pistols, it became (and still is) important to allow the citizen
to purchase the arms most suited to their pocket book. Purchase of the
arms themselves is only part of the burden of the unorganized militia
members, they must also obtain ammunition to use for practice at the
range (at costs which can well exceed the cost of the arms the
ammunition it is used in), then they must possess those accessories
needed to render the arms suitable for military usage, such as
silencers, flash suppressors, scopes, bayonets, and so forth.
Ultimately, the base cost of the firearm, is a fraction what the U.S.
citizen in the unorganized militia must invest in. So, for this reason,
arms decisions are left to the discretion of the individual citizen how
will arm themselves to the capabilities of what each citizens own
finances will allow and permit.
The �Bright Line� of Bearable Arms
187. The �bright line� as it were with the keeping and bearing of arms
under the 2nd Amendment is that the arms had to be bearable by an
individual militia member or soldier, and they it had to be operational
by the same single person. Thus field artillery, canons, mortars are not
generally operable by a single soldier, and such certainly can not as a
class be moved or operated by a single soldier of the field of battle,
whereas a 10 pound shotgun, or a 15 pound individually issued battle
rifle can be (a younger militia member would have no problems bearing a
50-75 pound rifle, whereas an old militiamen could be able to carry a
15-20 pound firearm).
188. For example, a U.S. Army M198 howitzer artillery piece weighs
around 16,000 pounds, and it requires a 9-man crew to fire it, and a
heavy lift cargo helicopter to transport it into the field. As the
Supreme Court notes, this is not the type of bearable arms (carried by
one person) that the 2nd Amendment protects automatically.
189. Even the very small cannons of the Revolutionary War, the wheeled,
carriage mounted cannons required 12 soldiers to operate, Each cannon
would be manned by two gunners, six soldiers, and four officers of the
artillery, and transported by �limbers� and a team of horses or oxen.
Certainly not the type of arms borne or kept by the individual
militiamen, and most certainly unsuited for defending the home and
hearth. Many of these colonial canons where multi-ton �Queens of the
Battlefield� were usually owned by the state or town militia or
Continental Army, not owned individually by citizens (unless the
individual was wealthy enough to own several cannon of their own, and
had teams of horses to move them, and the extensive manpower to operate
them).
190. There are documents in the �U.S. Congressional Records and Debates�
of the personal and legal ownership of small cannons by wealthy militia
members to include canons that fired three to twelve pound cannon balls.
191. Nonetheless, while the large cannons belonged to the state or local
militia as a whole, and the individual militiamen was required to
provide their own clothing or uniforms and accessories, and supplied
their own arms and ammunitions for the personal firearms they carried.
As the large cannons could not be carried into battle by the militiamen,
it was not included in the arms which they were required to bring when
mustered forth for service.
192. Indeed the Militia laws at the time required a citizen provided a
musket or rifle, and a pistol, powder, adding, flints, ammunitions and
accessories suited for military service, but it says nothing about the
citizen showing up for militia muster with a 6 ton cannon and few
hundred 8 pound cannon balls and kegs of gunpowder as these could not be
moved or carried into the military movements with the same ease as a
militiaman arms with several long guns and pistols, bayonets, and other
arms.
Modern Arms and Ammunition
193. To understand the colonial militia, and the original meanings and
the original requirements, it is important to recognize that the
unorganized militia were expected to show up and to be armed with modern
(colonial era) military arms and ammunition, capable of engaging a
modern enemy at extended distance, and great wave of defensive force
against any invasion or insurrection.
194. To this end, the arms had to closely match what the active duty
military was currently using, or when possible to be a higher quality,
capable of higher precision, and significantly longer distances.
195. It is important to note that a modern, standard issue Remington
.300 Win. Mag. or .338 Laupa Magnum rifle is designed to engage targets
beyond 3000 feet, and at this range engaging human sized targets
routinely. On the other hand, the AR-15/M-16 may only have a practical
range of 300 feet. It would therefore be wise for prudent militia
members who provide his own arms to muster with an AR-15/M-16, a
suitable shotgun, and if possible, a Remington .300 Win. Mag. (plus a
.308 Win conversion bolt) or .338 Laupa Magnum rifle, and of course two
matching pistols that can handle military ammunition (usually 9 mm or
.45 ACP). Of course, they will also need to muster with the appropriate
accessories, magazines, suitable clothing, food, ammunition, boots, and
so on.
196. Thus, to understand the modern (2012) militia, we need only to
examine those modern arms, used by the modern militaries of the world;
to seek out all of the individual equipment that an individual soldier
of the United States Military force would be outfitted with for
individual and personal use, and then for the militiaman of the modern
age to possess types similar to those, and when possible the same
models, caliber, and so forth to closely be in line with that already in
use.
197. It is also prudent not only for the arms of the militia to possess
arms of similar type, model, or caliber of that used by the U.S.
military, but also the arms potentially individually used by the
soldiers of a potential invading force that would need to be repelled.
Tactically, this placed the modern militiaman in a superior position on
the field of battle as he or she would possess arms capable of handling
U.S. ammunition, but also to collect and utilize the ammunition found on
the battlefield that was in use by the invaders.
198. Therefore, we must look at the arms, which an adversary of our
country might give their invading force, and our own militiamen must
have arms to support these foreign ammunition supplies.
199. Further, the modern militiamen must not only be an expert in their
on arms but must have familiarity with the invaders arms, as those
foreign arms and ammunition may at a point become the only arms
available to the U.S. militiamen.
200. These foreign arms must include those weapons and ammunition of any
country that could possibly launch any assault upon the United States.
Additionally, this must include countries belligerent toward our
country, regions becoming hostile to the United States, and sadly the
arms of our closest allies. Diplomacy between friendly nations has
historically twisted in the winds of time, and the closest of our allies
could turn into our bitter adversaries, in the space of only a few of
decades, or even years.
Colonial Arms and Ammunition
201. The key to understanding the meaning of the 2nd Amendment in view
of the Colonial Revolution, is to see the bright line articulated by the
1st and 2nd Congress is to observe that the farmers and hunters were the
militia members and they often carried multiple long guns or muskets
(rifles and shotguns) with them while hunting, and which they then
carried the same arms into battle and into skirmishes.
202. Indeed, history tells us that military tactics used by the Colonial
Militiamen, involved fast moving small units, that used cunning, skill,
resourcefulness, and multiple arms (often 2, 3, and even 4 muskets per
militiamen) against the British who themselves went to battle by sheer
brute force and proper military etiquette, while the Colonial Militiamen
functioned more as a collection of semi-independent guerilla warfare
units, and skilled hunters capable of hunting rabbit, deer, moose,
wolves, ducks, turkeys, and even British Red Coats. The Colonial Armies
and Militiamen acted as colonial hunters of men, not as soldiers, but by
this method, of unconventional warfare excised the British from our
lands. The British officers were actually incredulous by way the
Militiamen of the 1700�s refused to �fight properly.�
203. The colonial militiaman also would be armed with a brace of pistols
to use in close quar
ters, a selection of knives and hatchets, and often a long saber. All of
these arms being bearable by a single citizen from his home to the field
of battle.
204. The key to understanding the 2nd Amendment is to understand the two
words �to bear� as a militiamen can not bear a 16,000 pound howitzer,
but they can however, bear a 15 pound rifle, or even a 45-50 pound
rifle, but not much beyond that, and they must also bear bayonets,
ammunition, accessories, food, water, and things to sustain them in the
field.
205. Thus, the words of the 2nd Amendment of �to keep and bear arms� can
be simply and logically reduced to the keeping of arms that were
�bearable� into battle or skirmishes by the militiamen, carrying
individually born (or carried) personal weapons and ammunitions.
a. Long-barreled muskets were the initial weapon of choice by infantry
soldiers from both the British and Continental armies. Many muskets were
fitted with a bayonet, which allowed soldiers an additional attack
method in close combat without expending additional (very costly, and
very scare) ammunition. Muskets used by the continental army were large
caliber (.62 to .80) and heavy (eight to twelve pounds). As a bayonet is
a vital part of any militia weapon, any state statue that required that
this or attachment points be omitted from a firearm is unlawful and
unconstitutional as its omission makes the weapon less suited for
military use. Indeed in modern times, unlawful state statutes have be
passed that removed certain features such a military bayonet lugs,
military flash-hiders, and normal sized military issue magazines so as
to deprive the citizen from arms useful in militia service (even though
such statutes are unlawful under Federal and Constitutional Law, and
thus utterly null and void).
b. One of the most common and effective muskets of the American
Revolution was the Brown Bess. Used by both the American and British and
could be loaded with a single shot or grape shot (multiple balls, for
use as a shotgun). This weapon had a short range and was inaccurate (as
most muskets were). First used in 1768, the British used this musket
throughout the American Revolution, The War of 1812 and the Napoleonic
Wars. The weapon was slow to use and reload, thus requiring multiple
muskets be carried to sustain sustained rates of fire, and it as not
until these long guns became rifled that they became a formidable long
distance weapon. With the modern militia, two long guns are desirable to
be able to engage their opponent at variable ranges (perhaps one rifle,
and one shotgun). Thus, the militiaman may have both an M16/AR-15 and a
12-gauge shotgun, and perhaps a bolt-action hunting or sniper rifle for
extended range shooting.
c. Both swords and Tomahawk axes were used throughout the revolution as
a secondary impact weapon. Sabers were large, curved swords often used
by generals and other officers to provide direction during battle, but
they would also be used by the ordinary militiaman as a lethal weapon.
d. The colonial flintlock pistol was often used as a secondary weapon,
while reloading the long guns and muskets. Pistols during the
Revolutionary War era were quite inaccurate, and only suitable in very
close quarters. Thus, the modern militiamen will need to pistols capable
to either 9 mm or .45 ACP military ammunition, and in line with what is
currently or historically issued to the U.S. Military.
e. Faults not withstanding, the Revolutionary War era, American arms
were state-of-the �art at the time, and the arms possessed by modern day
unorganized militiamen must also equally be state-of-the�arm, and
appropriate for repelling a well armed foreign invader or for quelling
internal insurrection.
f. Thus, every modern �state-of-the-art� sophisticated weapon designed
for individual use that is currently and in production for the use by
the U.S. Military or any U.S. police force or police department must be
accessible or bearable by a U.S. Citizen who must be permitted to
possess those same arms, or better.
206. The Militia Act of 1903 was indirectly used by the Executive Branch
of the government during Civil Rights demonstrations during the 1960s.
Many southern governors, chief among them George Wallace, attempted to
use state National Guard forces (organized militia) to block civil
rights and desegregation initiatives. In these cases, whenever a
governor called up the National Guard for use in blocking federal
directives, the President promptly mobilized and then federalized the
National Guard into the Army Reserve, placing the Guard commanders under
direct federal authority, and subject to court martial should they not
carry out executive directives from the President.
207. I assert, as does the Supreme Court of the United States, that the
active duty military and Reserve Duty components are not the unorganized
militia, and the state National Guard are not the unorganized militia;
and that the unorganized militia can not be deployed into foreign lands
like the active duty, reserve duty, and National Guard; and that the
unorganized militia is constricted to function only domestic defense and
to obey the lawful commands of the Commander-in-Chief (the President of
the United States, and arguably the Governor of a state) and the
officers that he or she may appoint over the militia.
208. I assert that the Supreme Court in Miller has recognized that
�Moreover, the duty to keep arms applied to every household, not just to
those containing persons subject to militia service. Thus, the over-aged
and seamen, who were exempt from militia service, were required to keep
arms for law enforcement and for the defense of their homes from
criminals or foreign enemies.� - United States v. Miller, 307 U.S. 174,
179-80 (1939) (internal quotation marks omitted). See Kates, 82 Mich. L.
Rev. at 215-16.
209. Given that females and negroes are given the same rights,
privileges, and immunities of white males in the United States in later
years, that that are equally empowered to possess arms, and to take part
in the unorganized militia, and to possess arms, and to keep arms, and
the bear arms both in their own defense, and in the defense of this nation.
210. Membership in the unorganized militia, and the right to keep and to
bear arms is a defacto right of all citizens, and a requirement and
responsibility of citizenship.
All Citizens are Obligated to Possess Arms, Not Only the Militia Members
211. As the Supreme Court in United States v. Miller, Nordyke v. King,
Presser v. Illinois, and Maryland v. United States has ruled that it is
actually a legal duty and obligation of all citizens to possess arms,
and that these arms are even to be kept by the over-aged and retired
veterans, and not only restricted to only the militia ages, and not only
to white males of militia age. Thus all citizens of both genders who are
17 years of age or older, are compelled by law to maintain personal
arms, ammunition, and accessories of their choosing, suitable for
militia service.
212. While certain federal and state statues forbid possess of arms by
citizens between the ages of 17 and 20, those statute become null and
void by operation of the Supremacy Clause of the Constitution of the
United States, the 10th Amendment, the 14th Amendment, and in turn the
2nd Amendment. Indeed, as a citizen who is 17 years of age is by law
required to be in the unorganized militia, and thus is permitted by
Supreme Law to possess arms within the home, and to carry those arms
upon their person as a full right, privilege, and immunity� and indeed
must do so as an obligation to the Constitution.
213. Massachusetts in 1632 required each person to "have ... a
sufficient musket or other serviceable peace for war ... for himself and
each man servant he keeps able to beare arms.� In the Code of 1672, men
were to provide their own arms, but arms would be supplied to those
citizens unable to obtain them.
214. In terms of modern, �State-of-the-Art arms� this would include, but
not be limited to individually bearable arms to include a semiautomatic
battle rifle such as the Semiautomatic Colt AR-15 or M-16 rifle in .223,
plus a Mossberg 590 or Remington 870 or 11-87 12 gauge shotgun, and two
identical semi-automatic pistols of the same style of type used by the
military currently (such as the Berretta M9/92F or the SIGARMS M11/P226,
or the Colt 1911 or other .45 caliber handgun).
215. Additionally, some members of the unorganized militia may also own
highly sophisticated (and very costly) long-range precision sniping or
hunting rifles such as the Remington Model 700, 40-X, or M21 in .300 Win
Mag., .308. Win. or .338 Lapua Magnum as sold to the U.S. Military (and
which may be purchased as a hunting rifle). Perhaps even a member of the
unorganized militia may also possess a Barrett M107A1, along with
appropriate bayonets, field knives, and other suitable other arms. All
of which may be carried and operated by a single individual militiamen,
and all of which is protected by Constitutional Law.
216. There is also the issue of ammunition with the unorganized militia,
where they must bring sufficient ammunition of their own, along with
magazines, carriers, pouches, cleaning kits, and other accessories to
supply and maintain their arms during the initial emergency or invasion,
and then to have their ammunition supplies refreshed in due time from
state or federal supplies, or from ammunition picked up on the battle
field (from fallen foes).
217. Those unorganized militia members who are not able to purchase
state of the art weapons may still arm themselves with older battle
rifles and other arms and accessories directly from the U.S. Army,
through the CMP for very small amounts of money, and are allowed (at
present) to purchase up to 12 battle/assault rifles per year if they so
wish.
218. The U.S. Government clearly seeks an
d indeed requires a well-armed militia (in three tiers), including a
well-armed unorganized militia, to the point that the U.S. Government
directly sells battle rifles and ammunition to citizens for use in
potential defense of the country.
219. On the other hand, the current politicians and the judiciary of the
Commonwealth of Massachusetts endeavor to unlawfully infringe on the
right of the federal government to have an unorganized militia that is
well armed and skilled.
220. Further, the Commonwealth of Massachusetts subverts national
security, and subverts the security and integrity of the nation in the
name of political gain (albeit, unlawful gain).
221. Further, the Commonwealth of Massachusetts seeks to restrain,
deprive, and interfere with the defacto right of the citizens to possess
such arms, and has confected an unlawful scheme of licensure to deprive
citizens of this right.
222. The Commonwealth of Massachusetts maintains and enforced
constitutionally offense statute, operates an unlawful discretionary
licensing scheme, and actively and aggressively deprives citizens of the
United States their right to keep arms and to bear to arms, either in
their on defense, or on defense of the state.
Decades of Prior Statutes, Case Law, and Points of Authority, Mandate
the Public has Access to Arms
223. I recognize and assert that under United States v. Miller, Nordyke
v. King, Presser v. Illinois, and Maryland v. United States and under
Federal Law, I am constitutionally compelled to maintain my own personal
arms, ammunition, and accessories suitable for militia service.
224. I also assert that by operation of the Supremacy Clause of the
United States Constitution, and the 2nd, 10th, and 14th Amendment that I
am compelled by constitutional law and by the opinions of the Supreme
Court and Congress, and thus I am legally required and bound to obey the
Constitution of the United States and to utterly ignore any Federal or
State statues which conflicts with the Constitution of the United States
by function of the Supremacy Clause.
225. I assert that in Maxwell v. Dow, 176 US 581 - Supreme Court 1900 at
597, that the Supreme Court ruled:
�In Presser v. Illinois, 116 U.S. 252 (1886), it was held that the
Second Amendment to the Constitution, in regard to the right of the
people to bear arms, as deemed at that time to be a limitation only on
the power of Congress and the National Government, and not of the
States. It was therein said, however, that as all citizens capable of
bearing arms constitute the reserved military force of the National
Government, and thus the States could not prohibit the people from
keeping and bearing arms, so as to deprive the United States of their
rightful resource for maintaining the public security, and disable the
people from performing their duty to the General Government.�
226. The U.S. Supreme Court decision in Presser v. Illinois was quite
explicit in that is goes to the Federal Requirement to keep arms and in
fact the opinion reads �thus the States could not prohibit the people
from keeping and bearing arms� an opinion which is quite powerful in how
a small number of states like Massachusetts that unlawfully interferes
with the citizens being armed and are actually interfering with and
damaging our nations vital defenses, and doing so for political and
monetary gain.
227. Further, that in McDonald (2010) and Heller (2008) this was
explicitly expanded to also include the Second Amendment rights toward
individual states in order to define the rights of citizens, and to
clear up any confusion.
228. Since the signing of the 14th Amendment, this has always applied
directly to the states, but explicit judgment on the matter was weak
until McDonald in 2010.
229. In Heller (2008) at 2805,
�Three important founding-era legal scholars interpreted the Second
Amendment in published writings. All three understood it to protect an
individual right unconnected with militia service.�
230. Then in Heller at 2808,
�In Houston v. Moore, 5 Wheat. 1, 24, 5 L.Ed. 19 (1820), this Court held
that States have concurrent power over the militia, at least where not
preempted by Congress. Agreeing in dissent that States could "organize,
discipline, and arm" the militia in the absence of conflicting federal
regulation, Justice Story said that the Second Amendment "may not,
perhaps, be thought to have any important bearing on this point. If it
have, it confirms and illustrates, rather than impugns the reasoning
already suggested." Id., at 51-53. Of course, if the Amendment simply
"protect[ed] the right of the people of each of the several States to
maintain a well-regulated militia," post, at 2822 (STEVENS, J.,
dissenting), it would have enormous and obvious bearing on the point.
But the Court and Story derived the States' power over the militia from
the nonexclusive nature of federal power, not from the Second Amendment,
whose preamble merely "confirms and illustrates" the importance of the
militia. Even clearer was Justice Baldwin. In the famous fugitive-slave
case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833),
Baldwin, sitting as a circuit judge, cited both the Second Amendment and
the Pennsylvania analogue for his conclusion that a citizen has "a right
to carry arms in defence of his property or person, and to use them, if
either were assailed with such force, numbers or violence as made it
necessary for the protection or safety of either."
231. Thusly, I also assert that the effect of McDonald (2010) and Heller
(2008) when combined with Maxwell and Presser is to ensure the �all
citizens capable of bearing arms� of all genders and ages constitute the
militia, and that the militia is a �duty to the General Government� and
that possession of arms is not only a right, immunity, and privileged,
but also a legal obligation (as per the Supreme Court).
232. I recognize that in the Supreme Court case of Dred Scott v.
Sandford, 60 U.S. 393 (1856), that the �Dred Scott Decision� observes
that a U.S. Citizen are able keep and bear arms, and that �they may bear
these arms from state to state as a full liberty, or pass, or passport,
or special laws, or regulations. �who were recognized as citizens in any
one State of the Union ... the full liberty ... to keep and carry arms
wherever they went.�
233. I also recognize that most of the earliest gun-control legislation
at the state level was the "black codes" that replaced the "slave codes"
after the Civil War. These unlawful statutes were nothing less that a
mechanism to prevent blacks' from having access to the full rights of
citizens, including the right to keep and bear arms. Laws of this type
later used racially neutral language to survive legal challenge, but
were expected to be enforced against blacks rather than whites.
234. I also understand that an appeal from Parker v. District of
Columbia, 478 F.3d 370 (D.C. Cir. 2007), a decision in which the United
States Court of Appeals for the District of Columbia Circuit became the
first Federal Appeals Court in the United States to rule that a firearm
ban infringes the Second Amendment to the United States Constitution,
and the second case to expressly interpret the Second Amendment as
protecting an individual right to possess firearms for private use. The
first recent federal case that directly interpreted the Second Amendment
as protecting an individual right was United States v. Emerson, 270 F.3d
203 (5th Cir. 2001).
235. In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court
construed the Second Amendment as protecting the "natural right of
self-defense" and therefore struck down a ban on carrying pistols
openly. Its opinion perfectly captured the way in which the operative
clause of the Second Amendment furthers the purpose announced in the
prefatory clause, in continuity with the English right (even though it
only applied to whites, and not to blacks):
"The right of the whole people, old and young, men, women and boys, and
not militia only, to keep and bear arms of every description, and not
such merely as are used by the militia, shall not be infringed,
curtailed, or broken in upon, in the smallest degree; and all this for
the important end to be attained: the rearing up and qualifying a
well-regulated militia, so vitally necessary to the security of a free
State. Our opinion is, that any law, State or Federal, is repugnant to
the Constitution, and void, which contravenes this right, originally
belonging to our forefathers, trampled under foot by Charles I. and his
two wicked sons and successors, re-established by the revolution of
1688, conveyed to this land of liberty by the colonists, and finally
incorporated conspicuously in our own Magna Charta!"
236. Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the
Louisiana Supreme Court held that citizens had a right to carry arms openly:
"This is the right guaranteed by the Constitution of the United States,
and which is calculated to incite men to a manly and noble defence of
themselves, if necessary, and of their country, without any tendency to
secret advantages and unmanly assassinations."
237. Congress enacted the Freedmen's Bureau Act on July 16, 1866.
Section 14 stated:
"[T]he right ... to have full and equal benefit of all laws and
proceedings concerning personal liberty, personal security, and the
acquisition, enjoyment, and disposition of estate, real and personal,
including the constitutional right to bear arms, shall be secured to and
enjoyed by all the citizens ... without respect to race or color, or
previous condition of slavery. ..." 14 Stat. 176-177.
Education, Training, and Experience Based Expert Observations
238. Based on my education, experience, and training I recognize that in
a national emergency (such as an invasion or insurrection) that it would
be logistically impossible to initially arm
the militia out of the Federal and State Armories as the combined
inventories of both lacks sufficient arms, ammunition, and accessories
to arm all citizens between the ages of 17 and 45 or older.
239. Even if the federal and state armories did contain sufficient arms
for the militia members for the entire country, it would be impossible
to distribute them in a timely manner to the militia, and in all
likelihood the armories would be attacked, sacked or destroyed by an
invading force or seized by insurgents or insurrectionists as this is a
standard tactic of warfare.
240. I also know, that based on my military service, and consulting
projects with emergency agencies that the United States Government
maintains regionally distributed, classified armories that will assist
in arming a very small percentage of the militia, but that these
armories and caches would only be able to initially arm a fraction of
the organized militia, and virtually none of the unorganized militia in
a meaningful way.
241. I know that these weapons include at least the M1 Grande, the
M1A/M-14 Rifle, the M16 and AR-15, the M-60 Machine Gun, the M2 Machine
gun, M-79 and M-203 grenade launchers, and a variety of military
shotguns and military revolvers and semi-automatic pistols.
242. Thus, in order to call out, to muster, to draft, to mobilize, to
arm the militia, and to effectively control and utilize the unorganized
militia there is a requirement the individual citizens themselves must
possess suitable arms, ammunition, and accessories or otherwise the
militia will be useless, and thus relegated to fighting invaders with
sharpened sticks and rocks.
Realistic �Un-Organized� Militiamen
243. I have reviewed the U.S. Census bureau statistics and it reveals
that in Rockport, MA that there are roughly 4,893 members of the
unorganized militia.
244. In Gloucester, MA, the U.S. Census also reveals roughly 18,481
members of the unorganized militia.
245. Thus the local combined total of members of the unorganized militia
in my local community is 23,374 member of the unorganized militia which
could be mustered out for emergency military service in the unorganized
militia in a matter of hours, provided that politicians, and members of
the state judiciary who seek to subvert nation security in the interest
of political gain have not unlawfully disarmed them.
246. There is also no National Guard Armory in the City of Gloucester,
or the Ton of Rockport, nor in any nearby and accessible city, by which
members of the militia of Rockport or Gloucester to arm themselves in
the event of insurrection or invasion.
247. I have also reviewed the U.S. Census bureau statistics and it
reveals that in the Commonwealth of Massachusetts that there should be
roughly 4,313,635 un-organized militia members (less the roughly 8,200
National Guardsmen of Massachusetts) of the unorganized militia each
possessing (as required by federal law) arms, ammunition, and
accessories to sustain themselves in military action when they are
called up. It should ne noted that there is only one member of the
organized militia (National Guard) for every 526 members of the
unorganized militia.
248. I have examined the income accounting for the Town of Rockport and
for the City of Gloucester and have determined that by analyzing the
fees paid to the City/Town for FID and LTC (gun permits) there would
appear to be less then 2000 citizens between the two cities who are
allowed to keep arms (many of whom have a pistol only, and no long guns,
rifles, or shotguns, and likely only a single box of ammunition, and not
of a military caliber or type), a short fall of 21,374 citizens or
roughly a 1 to 117 ratio. Where only one local unorganized militiaman
would be armed with a pistol, and the other 100+ unorganized militiamen
would be armed with pointed sticks and perhaps small rocks. Given the
ratio of handgun versus revolver ownership, the ratio of long guns would
likely be only 1 in 400 citizens in these areas.
249. A local, Boston area TV station called Channel 5 � WVCB, recently
obtained firearms licensing statistics from the Massachusetts Firearm
Records Bureau, which lists that out of 6,547,629 citizens (of all
ages), only 254,653 �Class A License to Carry Firearms� (only 3.88% of
the population) have been issued by the state, upon which they produced
a TV news report. (re:
http://www.wcvb.com/news/investigative/Number-of-gun-licenses-in-Massachusetts-shoots-up/-/12520878/17217164/-/pen6nf/-/index.html).
250. Given that the population of Massachusetts: 6,587,536 (2011 est.)
based on the "Annual Estimates of the Resident Population for the United
States, Regions, States, and Puerto Rico: April 1, 2010 to July 1, 2011
- 2011 Population Estimates. United States Census Bureau, Population
Division. December 2011."
251. It is thus fairly academic to split out the population into the age
ranges and types of the militia by using the 2010 U.S. Census record:
http://www.census.gov/prod/cen2010/briefs/c2010br-03.pdf
Massachusetts - 2010 Census
Full Population 6,547,629
Male Population 3,166,628
Female Population 3,381,001
Age 18-44 (Militia 1) 2,410,178 (1,165,633 Males - Approx.)
Age 44-65 (Militia 2) 1,815,804 ( 878,176 Males - Approx.)
Militia Ages (18-65) 4,225,982
17 Year old 87,653 Approx. (42,391 Males - Approx)
Full Militia (17-65) 4,313,635 Approx. (for Massachusetts, M+F)
252. Only 254,653 (per "Mass Firearms Records Bureau") of these (5.9%)
have a license to carry arms, when federal law mandates a nearly 100%
possession of arms (in their individual homes) in the age range of
17-65, for militia service.
253. Thus, the Commonwealth of Massachusetts is depriving at least 94%
(likely closer to 99% given the �assault weapon� bans) of the population
of a civil right, and depriving the United States of America of a
required unorganized (and pre-armed/self armed) militia.
254. There are roughly 4.31 million citizens in the Commonwealth who are
members of the unorganized militia (less a very small number of National
Guard and Active Duty or Reserve military) who are required by law to
maintain militia arms in their home.
255. Of course, a small percentage of these citizens are unfit for
military service due to legal, ethical, physical and mental health
disabilities.
256. Thusly, the Massachusetts scheme of arms licensure serves only as a
mechanism to deprive the citizenry their right to arms, and more
chillingly to deprive the U.S. Government of an armed �unorganized
militia� that the Federal Government or State can muster to defend
against invasion or insurrection.
257. Again we look towards Heller at 2815-2816,
�We may as well consider at this point (for we will have to consider
eventually) what types of weapons Miller permits. Read in isolation,
Miller's phrase "part of ordinary military equipment" could mean that
only those weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that the National
Firearms Act's restrictions on machineguns (not challenged in Miller)
might be unconstitutional, machineguns being useful in warfare in 1939.
We think that Miller's "ordinary military equipment" language must be
read in tandem with what comes after: "[O]rdinarily when called for
[militia] service [able-bodied] men were expected to appear bearing arms
supplied by themselves and of the kind in common use at the time." 307
U.S., at 179, 59 S.Ct. 816. The traditional militia was formed from a
pool of men bringing arms "in common use at the time" for lawful
purposes like self-defense. "In the colonial and revolutionary war era,
[small-arms] weapons used by militiamen and weapons used in defense of
person and home were one and the same." State v. Kessler, 289 Ore. 359,
368, 614 P.2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the
American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the
way in which the Second Amendment's operative clause furthers the
purpose announced in its preface. We therefore read Miller to say only
that the Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes, such as
short-barreled shotguns. That accords with the historical understanding
of the scope of the right, see Part III, infra�
258. The Heller court at 2817, also wisely observes that
�sophisticated arms� are required by U.S. citizens to be of value in an
unorganized militia. Thus, this strikes down all �assault weapon bans�
within the Commonwealth of Massachusetts, New Jersey, New York City,
California, and other States that are in rebellion to the Constitution:
�It may be objected that if weapons that are most useful in military
service�M-16 rifles and the like�may be banned, then the Second
Amendment right is completely detached from the prefatory clause. But as
we have said, the conception of the militia at the time of the Second
Amendment's ratification was the body of all citizens capable of
military service, who would bring the sorts of lawful weapons that they
possessed at home to militia duty. It may well be true today that a
militia, to be as effective as militias in the 18th century, would
require sophisticated arms that are highly unusual in society at large.
Indeed, it may be true that no amount of small arms could be useful
against modern-day bombers and tanks. But the fact that modern
developments have limited the degree of fit between the prefatory clause
and the protected right cannot change our interpretation of the right.�
pp 2817
259. I am aware of the case of United States v. Miller, 307 U.S. 174, 59
S.Ct. 816, 83 L.Ed. 1206 (1939), in which the government was
represented, but Miller himself was long since deceased, and was not
represented by any attorney to argue before the court, and no briefs
were filed on Millers behalf. Essentially, the Su
preme Court at that time �ruled in a vacuum of facts� and was not made
aware of certain vital evidence that the government possessed and was
concealing about short-barrels shotguns that were currently in use by
the military (which was the base argument in Miller), and which had been
in use at the time, and actually in widespread U.S. military use. The
Court erred in not recognizing that a short-barreled shotgun was a
defacto military arm at the time, issued to U.S. soldiers for trench
warfare.
a. Benedict Crowell, Assistant Secretary of War (1919). America's
Munitions, 1917-1918. Government Printing Office, Washington D.C.. pp.
185�186.
"When American troops were in the heat of the fighting in the summer of
1918, the German government sent a protest through a neutral agency to
our Government asserting that our men were using shotguns against German
troops in the trenches. The allegation was true; but our State
Department replied that the use of such weapons was not forbidden by the
Geneva Convention as the Germans had asserted. Manufactured primarily
for the purpose of arming guards placed over German prisoners, these
shotguns were undoubtedly in some instances carried into the actual
fighting. The Ordnance Department procured some 30,000 to 40,000
shotguns of the short-barrel or sawed-off type, ordering these from the
regular commercial manufacturers. The shell provided for these guns each
contained a charge of nine heavy buckshot, a combination likely to have
murderous effect in close fighting."
b. On pp 177, it is revealed by the Assistant Secretary of War that
America is a nation of �Crack Shots� and the long rifle was bonafide
military arms:
�America since the days of Daniel Boone a nation of crack shots was
naturally the home of good rifles. Hence perhaps it is not surprising
that the United States should be the nation to produce the closest
shooting military rifle known in its day This was the United States
rifle model of 1903 popularly called the Springfield.�
c. It is also notable that on pp 187, the Assistant Secretary of War
discusses the military value of revolvers and semi-automatic pistols as
bonafide military arms:
�The American pistol was one of the great successes of the war. For
several years before the war came the Ordnance Department had been
collaborating with private manufacturers to develop the automatic pistol
but none of our officers realized until the supreme test came what an
effective weapon the Colt 45 would be in the hand to hand fighting of
the trenches. In our isolation we had suspected perhaps that the bayonet
and such new weapons as the modern hand grenade had encroached upon the
field of the pistol and revolver. We were soon to discover our mistake
In the hands of a determined American soldier the pistol proved to be a
weapon of great execution and it was properly feared by the German troops.�
�We had long been a nation of pistol shooters we Americans but not until
the year 1911 did we develop a pistol of the accuracy and rapidity of
fire demanded by our ordnance experts The nations of Europe had
neglected this valuable arm almost altogether regarding it principally
as a military ornament which only officers should carry The result of
Europe's neglect was that the small caliber revolvers of the Germans and
even of the French and English were toys in comparison with the big
Colts that armed the American soldiers.�
�America owed the Colt 45 to the experiences of our fighters in the
Philippines and to the inventive genius of John Browning of machine gun
fame In the earlier Philippine campaigns our troops used a 38 caliber
pistol Our soldiers observed that when the tough tribesmen were hit with
these bullets and even seriously wounded they frequently kept on
fighting for some time What was needed was a hand weapon that would put
the adversary out of fighting the instant he was hit whether fatally or
not We therefore increased the caliber of the automatic pistol to 45 and
slowed down the bullet so that it tore flesh instead of making a clean
perforation These improvements gave the missile the impact of a sledge
hammer and a man hit went down every time.�
d. Then turning back to pp 171, the Assistant Secretary of War reviews
the U.S. Inventory of Machine Guns and Sub Machine Guns, including
machines guns that could be borne or carried into the field on battle by
a single soldier, and then operated by a single soldier as an
individually served weapon. As this 37-pound or the lighter 15.5 pound
weapon (the size of the service rifle) may be borne by a single soldier
it (and a large number of other modern weapons) is thus a suitable arms
for the unorganized militia and a defacto type of arm protected for
individual ownership by the 2nd Amendment:
�But America's greatest feat in machine gun production was the
development of the Browning weapons. These guns as has been noted were
of three types the heavy Browning water cooled gun weighing 37 pounds
for the use of our troops in the field the light Browning automatic
rifle weighing 15.5 pounds and in appearance similar to the ordinary
service rifle, also for the use of our soldiers fighting on the ground��
260. Indeed, upon consideration of the report issued by the, of
�Benedict Crowell, Assistant Secretary of War (1919). America's
Munitions, 1917-1918. Government Printing Office, Washington D.C.� It
can be confirmed that a wide range of individually portable arms are
suitable for ownership and/or possession by law abiding citizens, to
include, but not be limited to rifles, shotguns, short barreled rifles,
short barreled shotguns, pistols, revolvers, light weight machine guns,
sub machine guns, service pistols, bayonets, knives, grenades, tear
gases, and a wide range of other normal arms of the militia that are
suited for individual use, and which are �individually bearable� by a
single militiamen, or modern soldier.
261. Should the weapons or arms not be �individually bearable� then it
falls outside of the Constitutional protections of the 2nd Amendment
which applied to �bearable arms� and not canons, heavy artillery, tanks,
and arms not designed, developed, or deployed to be �individually bearable�.
262. This provides use with a very clear, concise, and a very common
sense aspect to the argument of �what arms are fit for Constitutional
protection�, and the common sense answer is quite evident to be �the
arms carried into battle by a single soldier, and which are individually
borne on the battle field�, and any such weapon or type of weapon, or
derivative of weapon is automatically protected, which heavier or larger
arms others are not.
263. To bring this argument forward in time to the modern day, one needs
only to review the arms used in World War II, the Korean War, Vietnam,
and to the Gulf Wars to find types of arms that are suited for
protection by the Second Amendment and the various Militia Acts.
264. Additionally, while serving in the Active U.S. Air Force, I was
from time to time armed with a short barreled shotguns, and can attest
that they are in fact a bona fide military weapon in common use in the
military.
265. Additionally which serving on active duty I was also armed with
AR-15, M-16, and M1A/M-14 Rifles, also with various pistols and
revolvers, and several models of grenade launchers. All of which were
individually issued, and individually carried, and all of which are well
suited for militia service.
266. In addition, while attending tactical training outside of my active
duty military training, but while under contract to the U.S. Government,
I also visited the factories of U.S. Firearms manufactures who supply
short barreled shotguns to the U.S. Military, and I was training on
their tactics, usage, repair, and maintenance. This included the short
barrel shotguns of Mossberg, Remington, Winchester, Savage, and Heckler
and Koch.
267. The Supreme Court in Heller guides that: �the Second Amendment
right is not unlimited. It is not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose:� Then the
court goes on to list restrictions on the mode of carry �For example,
concealed weapons prohibitions have been upheld under the Amendment or
state analogues.� This is not to say that arms may be restricted from
being carried, merely that the state may regulate if arms may be carried
openly, or if they are to be carried concealed, but the court
emphatically says that all citizens must be allowed carry arms unless
they suffer from specific legal disqualifications, and the state may not
infringe upon this right (the state is allow only to dictate is arms may
of openly carried, or carried concealed, but are forbidden to control IF
those arms are carried).
268. The Heller court then addresses the matter of certain citizens
being disqualified from arms, but they did not provide an exhaustive
list, but rather �The Court�s opinion should not be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons and
the mentally ill,� Then the court addressed the issue of prohibited
locations: �or laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings� and then addressed the
control of retail transactions: �or laws imposing conditions and
qualifications on the commercial sale of arms�. These disqualifiers are
enumerated in detail in federal statutes, and form the �exhaustive list�
referred to by the court (a full listing of these �disqualifications�
can be found elsewhere in this pleading).
269. Essentially, the only element which the Supreme Court allows the
state to legally regulate to a limited degree is the control of retail
sales of arms, designation certain prohibited areas (within reasons),
and to regulate the mode of carry (within reason).
270. The court in Hel
ler also mentions �Miller�s holding that the sorts of weapons protected
are those �in common use at the time� finds support in the historical
tradition of prohibiting the carrying of dangerous and unusual weapons.�
Where the court speaks quite powerfully about arms being �in common use�
they speak of the period of time when Miller was argued, and now in the
present day they speak of the arms in common use by the military,
police, and private citizens.
271. More importantly in Heller, there is a distinction between
�bearable arms� and arms which are not bearable or which are highly
unusually to be stored in the home.
272. The Second Amendment would of course, not protect a thermo-nuclear
bomb as it is not a �generally available common military item� as the
numbers used are quite small, and a 6000 pound warhead can not be
carried or maintained by a sole militia member.
273. Even in regards to very small man-portable versions of these
nuclear weapons, these are not arms that would be are normally carried,
nor deployed, nor issued to normal infantryman, and that they are
essentially suicide bombs due to the radiation exposure involved in
carrying one. An example is the Mark 54 (or W54) Special Atomic
Demolition Munitions that weighs 150 pounds, as designed to be
transported by a single (very strong) soldier and deployed by parachute
or submarine, but to actually �use� the munitions a second soldier as
required. Nevertheless, the soldier who carried this 150-pound package
would be subjected to lethal radiation levels, and death due to
radiation exposure form the nuclear fuel. The warhead itself was only 51
pounds, with the remaining weight shielding, control devices, and
packaging. Even when repacked into the M-388 round for use against tanks
and other armor, the round still required three soldiers to launch or
deploy, even though a single soldier could transport the warhead. Thus,
nuclear weapons fall far outside the scope of the Second Amendment,
until technology advances sufficiently to permit a nuclear warhead to be
carried and operated by a single soldier.
274. Indeed in federal statute, the classifications of �bearable arms�
is made quite clear as ultimately the argument in Heller is what may be
kept in the home, what is bearable and what is not, and then what is
unusual and what is not.
The Importance of The Militia
275. In �A Letter from Inquiry Into The Importance of The Militia, A
Letter From William H. Sumner, Adjutant General Of The Commonwealth Of
Massachusetts, To John Adams, Late President Of The United States; His
Answer. 1823�
�All nations, to maintain their independence, must at least, possess the
means of defence; and, those, who have not the advantage of our local
situation, cannot long expect to retain it, without the power of
annoyance, also. The militia is intended for defence only; standing
armies for aggression, as well as defence. The history of all ages
proves that large armies are dangerous to civil liberty. Militia,
however large, never can be; for it is composed of citizens only, armed
for the preservation of their own privileges. In time of war, the army
should be increased in proportion to external emergencies; and, in
peace, it should always be so reduced, as not to excite any apprehension
of danger, from its power, to constitutional freedom; but, it does not
thence follow, that the militia should also be reduced. On the contrary,
in proportion to the want of the means of resistance, aggression is
encouraged ; and therefore, as the army is diminished, the militia
should be cherished. These principles appear to have been well
understood, formerly in this state; but a change in the opinions of the
people seems to be commencing, founded on the erroneous notion that the
militia is a military institution merely, of no use in time of peace.
They who reflect upon the principles whereon the militia was predicated,
will at once perceive that this opinion is fraught with danger to our
civil rights ; while those, who have adopted the error, do not confine
their plan of reduction to this establishment. Some of them advocate the
abolition of the militia, without an increase of the army; and with
some, the army not only is to be disbanded, but the militia, also. The
main defences of the country, are to be wiped away, as with a sponge,
the marine only excepted- Notwithstanding the navy by its skill and
gallantry, fought itself into the favour of the administration, as the
army did of the people; yet, I fear, that even this favourite arm of
defence, is less indebted to our political sagacity for its
preservation, than to the Algerines and pirates, who have given occasion
for its constant employment. It is hoped that the danger to the public
safety from external causes, and the encouragement to domestic
licentiousness, which it is apparent would immediately follow the
adoption of these schemes, will prevent it; but, the very propositions
themselves, shew in how little estimation those military attainments are
held, by many, which it has cost the nation a hundred millions of
dollars, and some of its best blood to acquire.� pp 8-9
�One of the designs of keeping the militia constantly organized, armed
and trained, was to save the expense of maintaining a large regular
force. The plan was predicated upon the principle, that the people
should defend their own homes; not that they should be called away for
the defence of others. It teaches them their dependence upon their own
exertions, and makes them ever watchful of danger to those interests,
for the protection of which, none feel so great a solicitude as
themselves. Thus it is, that, always prepared to resist aggression, they
are able to pursue their domestic avocations and agricultural pursuits,
for the support of their families, upon the very soil which they may be
required to defend.� Pp 16-17
�In Boston the militia is well disciplined, and could be mustered in an
hour, upon any signal of an approaching enemy; and in six hours the
neighboring towns would pour in a greater force than an invading enemy
will bring against it.�
"The same remark applies to Salem, Marblehead, and Newburyport, places
whose harbours render an invasion next to impossible. In all of them
there are, in addition to the common militia, independent corps of
infantry and artillery, well disciplined and equipped, and ready, both
in disposition and means, to repair to any place where invasion may be
threatened, and able to repel it, except it should be made by a fleet of
heavy ships, against which nothing, perhaps, would prove any defense,
until the enemy should land; when the entire militia would be prepared
to meet them.� pp 17
276. I am aware that during the War of 1812, during the "Second War of
Independence against Britain�. Only days after the British invaded
Washington, D.C. and burned the White House, they also attacked
Rockport, MA, and barraged the city with canon fire, and invaded and
took prisoners. I am also aware that, the Rockport Militia operated a
small fort at the end of Bear Skin Neck which they armed with cannons,
and the fort was taken by the British, when the militia was found to all
the militiamen be sleeping in the fort. Then the British snuck into the
city on a barge (which sunk) as they bombarded the Town churches and
other buildings. Thus, Rockport, MA has a defacto history of post
colonial era foreign invasion, and a demonstrated need of a well armed
militia (obviously one that needed cannons at the time, and militiamen
not to be sleeping on duty).
Armaments of the Modern Militia
277. I have visited the battlefields and monuments on the Battlefields
in Concord and Lexington Massachusetts a number of times, and upon my
observing the monuments and statues on display I was able to see that
the Minutemen and Militia members were armed with what would have been
considered a �modern arms� for their period, and that they are not armed
with a pointed stick, or a rock. Further that these arms closely match
the arms that were carried into battle by the British at the time, and
the bona fide military assault weapons of their age.
278. I have also spoken to the colonial era historians in regards to the
weapons and tactics used in Lexington and Concord by the militia and the
Minuteman, and I understand those matters as they may apply to weapons
of the 20th and 21st century.
279. Based on my education, experience, and training I recognize that
the modern militia members must be armed with modern military arms, or
with arms which can handle modern ammunition, and preferably
standardized military arms, and standardized military ammunition, and
standardized accessories, and certainly all calibers of small arms
utilized by the current U.S. military or arms or ammunition involved in
the Civilian Marksmanship Program (CMP).
280. Based on my education, experience, and training I know that the
standard military or militia �individual� issue of ammunition is 210
rounds (7 magazines, of 30 rounds per magazine) of .223 Rem. rifle
ammunition for a scoped M16 or AR15, and that this is the standard issue
for all U.S. infantry forces, along with extra rifle ammunition in boxes
in order to reload the magazines. This is the type and standard amount
of ammunition and magazines an unorganized militia member would be
expected to turn out with when called for duty (also known as a �muster�).
281. Based on my education, experience, and training I know that the
standard issue for pistol ammunition is three to five magazines, each of
15 rounds (45 to 75 rounds in magazines), plus an extra box of 50 rounds
to be able to top of the magazines as they are expended. This is the
standard amount of pistol ammunition a militia member would be required
to turn out with when called.
282. Based on my education, experience, and training I know that the
standard issue for shotgun ammunition is 10-50 boxes of 5 rounds each to
be able to top off the shotgun magazine as they are expended. The
typical load of ammunition for a soldier with a shotgun in combat is 250
rounds. This is the standard amount of shotgun ammunition a militia
member would be required to turn out with when called.
283. Other arms of the militia involve similar or higher quantities of
magazines and ammunition, the above three are merely illustrative of
minimal levels, as one person would be expected to provide these three
or similar weapons, and ammunition and magazines or other accessories as
detailed above.
284. Additionally, sound suppressors or so called �silencers� have now
become standard issue with U.S. Combat troops, and are generally
accepted as a legitimate tool of warfare, and thus proven to be a
legitimate device or accessories for militia members to purchase as
accessories for their militia arms. Massachusetts State statute forbids
possession of such things, and thus the statute is void ab initio and in
conflict with Federal Law and the Supremacy Clause, as these devices are
bona fide military individual issue military items used by infantry forces.
285. I hereby assert that for me to be proficient with arms that regular
practice is required, and to be able to do this, suitable militia arms,
ammunition, and accessories must be possessed by me.
The �right to keep and bear arms� by the militia is vital �to the
security of a free state�
286. As the �right to keep and bear arms� is integral to the
Constitution of United States and that it is vital �to the security of a
free state,� then under 10 USC � 333 the President acting as the
Commander-in-Chief is legally empowered to use military force or to call
out the militia to restore Constitutional Law both in the Commonwealth
of Massachusetts, New York, New Jersey, Maryland, Illinois, DC, and
California, and several municipalities who are in open rebellion at this
time in regards to the Constitution and the Second Amendment and
Fourteenth Amendment since the Heller and McDonald Supreme Court
decisions (in which over two dozen Commonwealth Statutes are in conflict
with the Supreme Court, and Congressional interpretations of the
Constitution, and are thus those statutes are void ab initio.
Citizen Ownership of Arms is a Required Element of National Defense
287. As the Second Amendment has been formally applied to the states,
and the arming of the militia is something that the United States
Supreme Court and the United States Congress has designated as being a
required element of national defense or �of a free state� violation of
this requirement by the individual states is an act of insurrection and
rebellion.
_________________________
JAMES M. ATKINSON
EXHIBIT 1
�Militia Laws of the United States and of the Commonwealth of
Massachusetts, together with extracts from the United States and State
Constitutions, in relationship Thereto� written by Henry A.S. Dearborn,
Adjutant General of Massachusetts, 1840.
EXHIBIT 2
�A Letter from Inquiry Into The Importance of The Militia, A Letter From
William H. Sumner, Adjutant General Of The Commonwealth Of
Massachusetts, To John Adams, Late President Of The United States; His
Answer. 1823�
FROM
WILLIAM H. SUMNER,
TO
JOHN ADAMS.
LATE PRESIDENT OF THE UNITED STATES.
Boston, May 3d, 1823.
SIR,
IN an address to governor Brooks, accompanying my
last annual return of the militia of this commonwealth,
I made some observations on its condition, of which I beg
leave to enclose to you a copy. My public situation has
made it particularly necessary for me to investigate
the uses of the militia, as a military institution ; but this
is not the only light in which it should be viewed. Its
effects on the manners, habits and laws of our ancestors,
are easily traced ; the advantages resulting to us from the
application of their principles, by the convention which
framed the constitution, to our new condition under it ; the
continued influence of the militia in producing pride of
character, respect for authority, obedience to the laws,
and a just subordination among the people, are reasons of
sufficient weight to make it questionable, whether it ought
to be considered of the most importance as a civil or a
military institution. Yet, as, in the first point of view, it
is now hardly ever regarded, and, in the second, in my
opinion, not sufficiently so, I beg leave to trouble you with
some rem'arks on its utility, in both respects. Besides
the consideration of individual respect, my particular
inducement to address you on this subject, arises from the
sense I entertain of its importance, the open manner in
which the militia has been assailed, and, the belief I
have, that you will afford your support to an institution,
the maintenance of which, appears to be essential to the
preservation of our civil rights.
The pilgrims, who landed at Plymouth, seemed to have
been fully possessed of the value of military science ; for
they brought out a military leader, as well as ministers
and elders with them, knowing that they should not be
able to enjoy the rights of conscience, and their spiritual
privileges, without the aid of temporal power. Their
danger from the Indians convinced them, that this was a
subject which was not to be left to accidental acquirement;
and, in fifteen years after their landing, captain Myles
Standish and Lieutenant William Holmes, were appointed
" to teach the use of arms for the towns of Plymouth and
Duxbury." These officers were each allowed a salary
of 20 sterling a year, "to be paid in corn or beaver, as it
should then pass." As the settlement in other towns in-
creased, provision was made for their instruction in like
manner. To encourage attention to the subject, military
attainments were made the ground of honorary titular dis-
tinctions which were allowed by the express grant of the
civil government. It is remarkable, in the early old
colony records to observe, that those who filled impor-
tant civil offices are noticed by the appellation of Mr.
only, while such as held military commissions were
always distinguished by the titles which their rank
conferred.
In founding their military establishments upon the love
of distinction, which animates mankind to the most extraor-
dinary exertions, our ancestors discovered that accurate
knowledge of the human character which deserves the
consideration of their descendants. The charter of the
school for military discipline, which was granted in Ply-
mouth in 1642, is so instructive on the point of the appli-
cation of many of those principles, which will always be
necessary for making good citizen soldiers, that I cannot
forbear to notice its leading characteristics. It provides,
" That the officers should be chosen by the association,
and approved by the court.
" That their exercise should be begun and ended with
prayer.
" That they should have a sermon preached to them
once a year, on the election of their officers.
" That none should be received into the company, but
such are honest and of good report, freemen and not
servants ; and that they should be well approved by the
officers, and the majority of the company.
" That every man who should be admitted as a member,
should be subject to the command of his officers, and
every delinquent, and those who should not keep silence,
or, who exercised jeering, fighting or quarrelling, should
be adjudged guilty of a misdemeanor, and punished ac-
cording to the order of military discipline, and the nature
of the offence.
" That every man who should be absent, except on good
occasion, or the hand of God was upon him, should pay
for his default ; and, if he refused, he should be distrained,
and put out of the list.
** That every man who entered the military list, and did
not provide his arms, should be put out of the list ; and
that all who came with defective arms, should be fined
sixpence for each article deficient.
" That all that are, or shall be elected, chief officers of
the military company shall be so titled, and forever after-
wards be so reputed, unless he obtain a higher place.
" That if any member of the company die, the members
shall assemble with their arms, upon warning, and inter
his corpse, as a soldier, according to his place and
qualitie.
" That none shall be taken into the company without be-
ing propounded, one meeting, before they shall be received;
and, that none shall be admitted, who shall not first take
the oath of fidelity."
The same principles are contained in the grant of the
first military company in Massachusetts, in 1638. That
company is now composed of between two and three hun-
dred members, who are principally active officers in the
staff and in the line of the militia. They frequently meet
together for drill and mutual instruction ; and the names of
some of the most distinguished military commanders in our
history are borne on its rolls. The patronage of all the
branches of the civil government, afforded to their public
ceremonies, which are performed, according to the requi-
sitions of their ancient charter, on the day of their annual
election of officers, has now a most salutary influence on
the militia, as well as on the institution itself, and makes
the anniversary of the Ancient and Honourable Artillery
Company one of the most interesting of our public festivals.
Thus early, and upon these principles, were laid the
foundations of the military taste and knowledge, which
enabled Massachusetts to manifest that martial prowess for
which her history, as a colony, is so much distinguished.
In all combined operations, she was able to turn out more
than her quota of men, besides undertaking important ex-
peditions from her own resources. The organizing and
officering, the arming and training of the people, gave
them the ability to act with great celerity and confidence.
Recruiting for any projected expedition was always easy,
because all who joined it knew that they should do some
good. Success was almost certain, because every one
was determined not to sacrifice his domestic comforts, but
for an important purpose ; and all felt, that the continu-
ance of their civil privileges depended on the result of
their efforts. Whether, therefore, we see the Massachu-
setts troops engaged with the wily Indian in untrodden
forests ; embarking for foreign expeditions ; or assailing
regular fortresses, we witness that subordination in disci-
pline, which arises from a respect for authority ; that
cooperation in effort, which is indispensable in all confede-
racies; and that patience in suffering, which a confidence
in success, alone, can inspire. The security which reli-
gious freedom derived from the militia, in the early peri-
ods of our history ; the respect in which its leaders were
held ; its effects upon the manners of the people ; the union
of civil, religious and military authority in the same per-
son, and the well tested security of this deposit of power,
gave a civil importance and respectability to its institu-
tions, which those, who laid the foundations of our political
constitutions, knew how to value, and enabled us, who en-
joy their beneficial influence on our habits and laws, justly
to estimate.
All nations, to maintain their independence, must at
least, possess the means of defence ; and, those, who have
not the advantage of our local situation, cannot long ex-
pect to retain it, without the power of annoyance, also.
The militia is intended for defence only ; standing armies
for aggression, as well as defence. The history of all
ages proves that large armies are dangerous to civil lib-
erty. Militia, however large, never can be ; for it is com-
posed of citizens only, armed for the preservation of their
own privileges. In time of war, the army should be in-
creased in proportion to external emergencies ; and, in
peace, it should always be so reduced, as not to excite any
apprehension of danger, from its power, to constitutional
freedom ; but, it does not thence follow, that the militia
should also be reduced. On the contrary, in proportion to
the want of the means of resistance, aggression is encour-
aged ; and therefore, as the army is diminished, the militia
should be cherished. These principles appear to have
been well understood, formerly in this state ; but a
change in the opinions of the people seems to be com-
mencing, founded on the erroneous notion that the militia
is a military institution merely, of no use in time of peace.
They who reflect upon the principles whereon the militia
was predicated, will at once perceive that this opinion is
fraught with danger to our civil rights ; while those, who
have adopted the error, do not confine their plan of reduc-
tion to this establishment. Some of them advocate the
abolition of the militia, without an increase of the army ;
and with some, the army not only is to be disbanded, but
the militia, also. The main defences of the country, are
to be wiped away, as with a sponge, the marine only ex-
cepted- Notwithstanding the navy by its skill and gallant-
ry, fought itself into the favour of the administration, as the
army did of the people; yet, 1 fear, that even this favour-
ite arm of defence, is less indebted to our political saga-
city for its preservation, than to the Algerines and pirates,
who have given occasion for its constant employment.
It is hoped that the danger to the public safety from
external causes, and the encouragement to domestic
licentiousness, which it is apparent would immediately
follow the adoption of these schemes, will prevent it ;
but, the very propositions themselves, shew in how
little estimation those military attainments are held, by
many, which it has cost the nation a hundred millions of
dollars, and some of its best blood to acquire. . The great
advocates for retrenchment in public expenditure seem to
be governed by present impulses. They care not for the
future, and hardly ever look back. If they did, the ex-
perience of the country would not be lost upon them ;
for they would find, that although it required but one day
to declare war, it took us two years to make it effectual.
But so strong are their prejudices, and so determined are
they, in their course, it is almost impossible to convince
them that we shall not have perpetual peace.
If it were true that the heavens were so serene, as the
millenists held, but a few weeks since, their argument
would have no greater weight ; for in politics, as in na-
ture, the greatest storms follow the stillest calms. But,
if there are no black clouds portending thunder, there
are certainly some white ones, indicating squalls, in our
political sky. The length of time in which the temple of
Janus has been shut, and the consequent increase of the
means and objects of war ; the unprecedented claim of
Russia to the exclusive navigation of the broad bays of
the North Pacific, as her own narrow seas ; the imputed
design of England to take Cuba under her protection ;
the outlawry of representative governments, on the conti-
nent of Europe ; the indisposition of some of the nations
to take the " sovereign prescription' 5 for maintaining the
divine legitimacy of kings ; are causes, which will en-
gage some of them in contests, deeply affecting our sym-
pathies, if not our interests. Let not this nation, then, the
spirit of whose free constitutions pervades all governments ;
whose empire is extended to both oceans; whose com-
merce comprehends all seas ; whose flag floats triumphant
and whose eagle soars high, deceive itself by a belief
that it is not more likely, than heretofore, to be drawn
into the vortex of contention, and that its views and
power will not be more regarded, than they have been,
in all the controversies of the great contending parties of
the world.
It can never be said that a nation, which derives its
whole revenue from commerce, is too remotely situated
to be involved by European contests. Whatever nations
are engaged, our interests will be affected ; and, when-
ever England becomes a belligerent, we may expect a re-
vival of our unsettled controversies about colonial trade,
neutral rights and blockade ; and should she impress
American sailors to man her fleets, however unwilling we
may be to renew the tug of war with her, it is not to be
expected that the national sentiment will again permit its.
government to barter the liberty of its citizens for com-
mercial gain. Aggression is provoked by weakness ; but,
whatever may be the subject of our differences with any
country, which respects our power, reconciliation may be
hoped for, without degradation. But a nation which
abolishes its War office, may as well discontinue its State
Department, also ; as they can discover but little ability
in diplomacy, who have not the sanction of force at com-
mand. If the history of former times is lost upon us, the
late admission by Spain, of the unexamined claim of the
British to " forty millions of dollars," as an indemnity for
losses by Spanish captures, teaches us how much it may
cost an unarmed nation to purchase even the neutrality
of a friend. Perhaps the history of the approaching war
may disclose, that, even those who would consider it as
ungenerous to assail a nation, which is fighting for the
right of establishing the basis of its own government, will
not fail to embrace so favourable an opportunity of extend-
ing their commercial monopoly to its foreign possessions,
and of obtaining landed security for "their acknowledged
debt."
Prohibited as she is, from the sale of her manufactures
on the continent, by a system more exclusive than that of
Napoleon's, it is to be expected that England will seek new
markets for the products of her industry. If, by extend-
ing her own, she can reduce the sales of her commercial
rival ; if, by giving employment to her own ships she can
exclude ours from the ports of Cuba, the trade to which
employs more than one seventh part of the tonnage of the
United States ; and if, in securing these commercial privi-
leges, she can, at the same time, place herself in a situation
to command the gulf of Florida, and watch the navigation
of the Mississippi from the Moro Castle ; it cannot be sup-
posed that the nation, which, however overburdened with
taxation, has always maintained strong garrisons at Gibral-
tar, Malta, and the Cape of Good Hope, at an immense ex-
pense, will fail to embrace these advantages. By the
possession of Cuba the British will be able, from the naval
stations of Halifax, Bermuda and Havana, to form a block-
ading line upon our coast which would be almost irresistible.
Surely these are great designs, and, if their accomplishment
is incompatible with our rights and interests, furnish some
reason why the national defences should not now be razed.
The military position and trade of Cuba, make it de-
sirable, if Spain is unable to retain it, that its indepen-
dence should be guaranteed by both the British and
American governments. There would, then, be but little
danger of collision between them, from this source ; but,
while on the one hand, if the United States were willing
to add to its black population, by taking the island
into its confederacy, Great Britain would oppose it, so
long as she intended to retain Jamaica : so, neither, on
the other, can its surrender to that great naval power, be
made, which, by its possession, could cut off the commer-
cial intercourse between the different ports of our coun-
try, render one third part of our population, and two
thirds of our territory dependent on it for the sale of their
productions, and exclude the United States from a market,
which employs, within six hundred tons, as much naviga-
tion as its trade to China, and all the ports of Russia,
Prussia, Sweden, Denmark, Norway, the Hanse towns,
Germany, Holland, the French, Spanish, Portuguese, and
all other European ports in the Atlantic, except the Brit-
ish, without awakening a feeling that will unite the great
agricultural, and navigating interests of the country in
opposition to the policy which admits it.
My object is not, however, to speak of particular causes
for cultivating the resources of national defence at this time ;
but, rather, to shew the necessity of always maintaining
them ; and 1 have only referred to the late sudden change
in the aspect of European affairs, as a fit example to illus-
trate my views. It is true, the policy of the United States
is peace ; but, the policy of peace is as much without the
control of nations, as the policy of war. The object of
the one or the other, by any power, is the promotion of
its own advantage ; and this is not always consonant to
the views of the interested. When these are defeated,
the policy of the nations will be changed ; not accord-
ing to the will of all, but of either. Since, then, none
can be sure of maintaining their peace, let us remem-
ber that preparation for war is its best preservative. It
is but a few years since this sentiment was as generally
entertained in this country, as in all others, which are
governed by wise councils ; but, to abolish the militia,
because there is no war, would be absurd. That reason
is applicable to the reduction of the army ; but, the army
and militia are raised from different causes ; and are sup-
ported upon different principles. They both contribute
to the same end, in war, and with so extended a frontier,
and indented a coast as ours, are, without doubt, both ne-
cessary for defence. The history of all ages shews
that civil governments, of every form, are occasionally
obliged to employ military forces for the preservation of
their authority. In free governments, then, that kind of
force should be maintained in peace, which is not
dangerous to liberty. But as military power, of some
sort, must always be at the command of the civil authority,
if the militia is to be abolished, the army should be in-
creased ; for, however much we may dislike the charac-
ter of the force, the preservation of our internal tran-
quillity, even, might demand its service. This very
apprehension, that a necessity for employing the army in
support of the civil power, might some time or other
arise, it is, which has heretofore kept the militia in a
respectable condition ; though now, strange as it may be,
sentiments are openly promulgated respecting it, which
no man, who valued his popularity, would have dared to
express, even five years ago. It is time, therefore, that
the public attention should be roused. This import-
ant interest should be looked at, in all its different
bearings ; for, unless there is an occasional reference to
the reason upon which even our most valuable institutions
are founded, they are in danger of being obliterated.
Changes in sentiment always effect alterations in laws.
In free governments, they depend upon, and follow each
other. If it be true, that " there is no danger from error
of opinion, where reason is free to combat it ;*" it is equally
as true, that unless reason does combat it, the error may
prevail. Viewing the subject as important, and believing,
that, strong as habit is, no system, however estimable,
can be long upheld by its force, without a just reflec-
tion on its influence and uses, I am induced to make a
cursory investigation of the leading objections which have
been made to the militia, in order that their merit may
be ascertained, or their futility exposed.
The principal of these is to the trainings. This objec-
tion is urged by different people with different objects.
Some, without reflection on their design ; some, from
a belief of their inefficacy to accomplish it ; some,
from contracted views ; and others, because they inter-
fere with their personal enjoyments. To some, the noise
of the drum and fife is ungrateful, in time of peace ; and
in the opinion of others, the trainings introduce too much
frolicking in the busy season of the year. The gentle-
man complains that they deprive him of the use of his
servants, and dismount his coachman from the box
when he wants to ride : the farmer, that the season of
vegetation is short, and that they take his men from their
labour, when it is most needed ; and some of the stock-
holders, in the great manufacturing establishments, are
opposed to them, because they impede their operations.
If such objections as these are sufficient, they are fatal to
its usefulness, as a military system. It should be TiOted,
however, before we proceed to their consideration, that
the whole community have a right to be heard on this
subject, as well as that part of it which raises the objec-
tions ; and it will be admitted that, if the opinion of any
is entitled to particular weight, it is of that party which
performs the service.
What, then, do the soldiers say ? That close confine-
ment in the manufactories, and too steady employment
in any pursuit, injures their health, and that they need
some recreation ; that these military assemblies, in the
country, are their only holidays. In the city, there are
election days, and artillery elections, independent day
celebrations, theatrical entertainments, and public shows
of all sorts. But in the interior, none of these civil festi-
vals are kept, excepting in a very few of the principal
towns ; and, if it were not for the trainings, the people
there would be without any public amusements ; and so
consonant and pleasant are they to their habits and feel-
ipgs, that even if the law did not require it, they say they
should voluntarily continue them. At the same time, they
- tell you that they need some amusement, and that these
are the only red-letter days .in their calendar ; they
ask if there are less in any country ; where they are so
well regulated ; or, where they contribute to such im-
portant ends ? Which are the public festivals, in Europe,
that are not protected by peace officers ; and what is the
need of them on these ? Where, in fact, say they, is ex-
cess so immediately restrained ; and, what other people
exhibit, on the day of their highest hilarity, the greatest
degree of subordination ? Is not all this true ? No
men toil with more constancy, work more hours, or ac-
complish more, than our labourers. During the whole
of the year they are busily employed ; but, for six months,
I consider New-England farmers as the hardest working
men on the face of the globe. Are four days too much,
then, for their recreation ? On the contrary, if the law
did not require militia trainings, for its .present useful
objects, it would be questionable, whether it might not
be for the advantage of society to encourage them, as a
relaxation from labour merely.
But if we look back, a few years only, when there was
no national force to save us, and reflect on the important *
interests which were protected by the militia, we shall
not be willing to rest the defence of this practice upon a
doubtful principle. Let us ask the manufacturing stock-
holders of 1814, (supposing the militia had not have been .
called out,) who would have received their dividends ;
the gentleman, who could have rode in his coach, and
the farmer, who would have plucked his corn ? and, if
they are obliged to answer, the British, we cannot extol
the principle too much, which, at such small sacrifices,
has preserved such great interests. It was these very
holiday trainings which saved us. The enemy's fleet
was too long upon our coast to be ignorant that our mili-
tia came to the field supplied with ammunition and pro-
visions, organized, armed, equipped, trained and prepared
for action, and that, if they should not find them already
embodied, it would require but a few hours to assemble
them. They knew that, here they would have to assail
an armed community, in a high state of moral and mili-
tary discipline, so completely arranged that a considera-
ble portion of the troops would fall in, at their several
places of rendezvous, already sized and numbered, like
garrison companies. The organization, officering, arming,
equipping, and the drill of the militia, is entirely kept up by
the spirit which the trainings create. It is by these, that
every man knows his officers, and every officer his men,
their places of residence, and the best means of notifying
them for service. It is by its trainings and reviews, that
the emulation of the officers is sustained, the pride of the
soldiers excited, and their confidence in their officers
united and confirmed. It is to these, that we are to
ascribe that alacrity in its movements, and that ardour for
conflict, which has always been discovered by our militia,
whenever an occasion called them forth from their domes-
tic avocations, for actual service.
One of the designs of keeping the militia constantly or-
ganized, armed and trained, was to save the expense of
maintaining a large regular force. The plan was predicated
upon the principle, that the people should defend their
own homes ; not that they should be called away for the
defence of others. It teaches them their dependence upon
their own exertions, and makes them ever watchful of
danger to those interests, for the protection of which, none
feel so great a solicitude as themselves. Thus it is, that,
always prepared to resist aggression, they are able to
pursue their domestic avocations and agricultural pursuits,
for the support of their families, upon the very soil which
they may be required to defend.
The mode of defence which was adopted, in this state,
at the commencement of the late war, by the executive
authority, (I speak of it in a military view only,) was
founded upon its full conviction of the confidence of the
people in their own ability to defend themselves. The
governor, in his letter to the secretary of war, justly set
forth the advantages resulting from the location and cha-
racter of our population and force; he says, "If the
president was fully acquainted with the situation of this
state, I think he would have no wish to call our militia
into service, in the manner proposed.
" Predatory incursions are not likel
y to take place in
this state, for at every point, except Passamaquoddy,
which can present an object to those incursions, the
people are too numerous to be attacked by such parties,
as generally engage in expeditions of that kind.
" General Dearborn proposed that the detached militia
should be stationed at only a few of the ports and places
on the east ; from the rest, a part of their militia were to
be called away ; this circumstance would increase their
danger; it would invite the aggressions of the enemy,
and diminish their power of resistance.
k ' Every harbour or port, within the state, has a com-
pact settlement, and generally the country, around the
harbours, is populous. The places contemplated in ge-
neral Dearborn's specifications, as the rendezvous of the
detached militia, excepting in one or two instances, con-
tain more of the militia than the portion of the militia
assigned to them. The militia are well organized, and
would, undoubtedly, prefer to defend their firesides, in
company with their friends, under their own officers,
rather than be marched to some distant place, while stran-
gers might be introduced to take their places at home.
" In Boston the militia is well disciplined, and could be
mustered in an hour, upon any signal of an approaching
enemy ; and in six hours the neighbouring towns would
pour in a greater force than an invading enemy will
bring against it.
" The same remark applies to Salem, Marblehead, and
Newburyport, places whose harbours render an inva-
sion next to impossible. In all of them there are, in ad-
dition to the common militia, independent corps of infan-
try and artillery, well disciplined and equipped, and
ready, both in disposition and means, to repair to any
place where invasion may be threatened, and able to re-
pel it, except it should be made by a fleet of heavy
ships, against which nothing, perhaps, would prove any
defence, until the enemy should land ; when the entire
militia would be prepared to meet them.
" Against predatory incursions, the militia of each place
would be able to defend their property ; and in a very
short time they would be aided, if necessary, by the
militia of the surrounding country. In case of a more
serious invasion, whole brigades, or divisions, could be
collected seasonably for defence. Indeed, considering
the state of the militia in this commonwealth, I think
there can be no doubt that, detaching a part of it, and
distributing it into small portions, will tend to impair the
defensive power."
Supported in his views of the ability and character of
the militia, by the best military councils, the governor did
not hesitate to place the authority, to call out and employ
the force under their commands, in the hands of the officers
themselves. But in a state, where the militia was not or-
ganized and trained, as well as armed ; where the popula-
tion was not sufficiently dense, when the beacon of danger
should be lighted, to be embodied immediately ; and where
there was not a general confidence in the intelligence of
the officers, as well as in the discipline of the men, an or-
der, which threw the whole responsibility of the defence
of the country upon those whose interests were at hazard,
instead of being viewed as a measure of. prudence, would
have been considered as the excess of temerity; yet, con-
fident of immediate support from the militia of the interior,
the people on the sea-board of the state, who were at all
times exposed to the sudden incursions of an ultra marine
invader, quietly pursued the occupations of peace for two
years after war was declared.
Again, when the general officers of the four divisions on
the sea-board, were assembled at the adjutant general's
office, in 1814, for the purpose of concerting measures of
defence against the land and naval forces which were col-
lecting on our coast, it was from the governor's knowledge
of their activity, discipline and skill, that he was induced to
order, that the militia, however small the body assembled,
which should be organized, should immediately attack
the enemy, if he attempted the invasion of any part of our
territory. It was their knowledge of it, that inspired the of-
ficers with the fullest confidence, that those who would thus
oppose the assailants, would be immediately supported by
the overwhelming force of an armed and concentred po-
pulation. Now, let me inquire, if such orders had have
been given to an untrained militia, instead of discovering
determination and zeal, whether anxiety and dismay would
not have disheartened them ? But what was the fact? In
every instance they shewed the greatest degree of activity
and fortitude. They rallied quickly, and came unhesita-
tingly into the field, prepared for combat on their first
arrival. No better evidence of it can be adduced, than
what is derived from the fact which I witnessed, upon
an alarm at Wiscasset, in 1814; when, from the known
strength of the enemy in the neighbourhood, it was suppos-
ed there would be a necessity for the employment of a
greater force than was assembled for its protection. Upon
that occasion a company of artillerj', and two of light in-
fantry, composed of persons, who, at the time they were
notified, were engaged in their private pursuits, prepared
with three days provisions, and completely armed, uni-
formed and equipped, travelled through miry roads, a
distance of eighteen miles, from Hallowell, Augusta, and
Gardner, and reported themselves in less than twenty-
four hours from the time the videt was despatched
with the order for their assembling. This was not a
solitary instance. The same alacrity was discovered by
the militia of the metropolis and its vicinity, when the
Constitution frigate was chased into Marblehead, by a
superior force, and upon other occasions ; but, I mention
this case to show the advantage which has resulted from
training the militia in the interior towns of the state, as
well as in the more populous places on the sea-board. If
this plan was not generally adopted, instead of being
assembled on sudden emergencies, and discharged again
as soon as the occasion which called for them ceased ;
there would be the same necessity here, which exists
in other places, for ordering the militia out, at great ex-
pense, in anticipation of the occasion, and for keeping them
in service until they had learned their duty, waiting for
an opportunity to display their newly acquired skill.
If it be asked how the militia protected us, when they
were never engaged ? I will ask, in turn, whether it is not
better to have one's power so respected by an enemy,
that he dare not encounter it, than, by its weakness, to
encourage him to assail it, with a confidence, or even a
hope, of its overthrow. In the one case, there is a triumph
without a battle ; in the other, if it be gained, it must be
attended with at least some sacrifices.
The general unevenness of our country; the nume-
rous obstructions to the progress of an enemy, which
its woods, rocks, ravines, rivers, meadows, mountains,
mills, stone walls, and villages present, are peculiarly
favourable to militia operations. An enemy would be
always unwilling to invade such a territory ; but notwith-
standing, if its population, like that of Europe, chiefly
consisted of an unarmed peasantry, and its whole reli-
ance was on its regular army, one pitched battle would
decide its fate. But a country of well trained militia-men
is not conquered when its army is beaten. Every addi-
tional district the enemy penetrates possesses the means
of its own defence ; and, instead of furnishing him with
additional supplies, weakens his force, and diminishes his
chance of return. We often boast of the success of the
American arms at Plattsburg, and well we may : but, if
Sir George Prevost had have carried the American lines,
and penetrated the country as far as Albany, we should
have had much more cause for it. Like the locusts of
Egypt, myriads of militia would have thronged around
him, destroyed every moving and living thing, and ren-
dered his retreat impossible. Here, every house is a cas-
tle, and every man a soldier. Arms are in every hand,
confidence in every mind, and courage in every heart.
It depends upon its own will, and not upon the force of the
enemy, whether such a country shall ever be conquered.
If, without further illustration, enough has been said to
shew the importance of the militia in its present condition ;
it is to be hoped that more attention will hereafter be paid
to its instruction and practice, as the principal means of
its melioration.
The trainings of the men in companies, and the reviews
of them by regiments, brigades, and divisions, should be
considered in the light of drills for the instruction of all
those officers and men, who are liable to be called out for
active service. Such are the different qualities of troops
which a militia general must necessarily have under his
command, that it is problematical whether as great a de-
gree of intelligence is not required in him, as in the
chief of an army, which consists but of one, and that
the best quality. Yet, how little is thought of the neces-
sity, which reflection makes so apparent, of instructing
the officers, and practising them in their duties, as well
as the men who are subject to their commands. The
Legislature should recollect, what the officers themselves
feel, that they have the responsibility of the lives of free
and independent citizens ; of fathers, husbands, and sons :
of men who have property, and a home to secure ; kin-
dred and dependents to protect ; and liberty and a coun-
try to defend. Shall such men, who engage with patriotic
enthusiasm in the support of these great interests, have no
opportunity afforded to qualify themselves for their duties.
Or shall the business of war, which puts every thing at
hazard, be left to accident, when all other concerns are
the objects of instruction and method.
It is common for those to complain of a system, who
do not comprehend it ; and for men, who are ignorant
of their duty, to ascribe their want of success to any
cause, but the true one. By such it has been said, that
the militia, when brought into combat, has almost always
failed to discover that efficiency which its friends ex-
pected of it. The truth of this assertion is not admitted.
Some most glorious battles have been fought by the militia
alone; and where it has been combined with regular
troops the trophies of victory have frequently fallen into
its hands. The seriousness with which the assertion is
made, however, makes it necessary to inquire into the
causes of the defeats which, it must be admitted, have often
attended the militia, lest they should be supposed to have
arisen from defect in the system, rather than neglect in
its execution.
The disasters of the militia may be ascribed chief-
ly to two causes, of which the failure to train the
men is a principal one ; but, the omission to train
the officers is a so much greater, that I think the
history of its conduct, where it has been unfortu-
nate, will prove that its defects are attributable, more
to their want of knowledge of the best mode of applying
the force under their authority to the attainment of their
object, than to all others. It may almost be stated, as an
axiom, that the larger the body of undisciplined men is,
the less is its chance of success ; and, that in proportion
to the number of individuals, acting as such, who are en-
gaged, is the prospect of it increased. The mode of fight-
ing militia against regular forces, should depend, almost
entirely, upon the discipline of the troops which the militia
general commands ; for the first object of his adversary
will be to ascertain the state of his opponent's drill. If he
discovers that his enemy, who is assembled in a body,
cannot manoeuvre, he will have no occasion to do it him-
self; for, he will find that those who do not disperse at
the imposing approach of his shouldered columns, will fly
before the charge of his bayonets. Before any troops
are brought into combat, they should not only be made
acquainted with military evolutions, but be instructed in
their uses, when they may be in the presence of an enemy.
A well drilled militia,' alone should be exposed in the
open field ; none other can maintain itself. An untrained
militia should be placed behind breast works, and shield-
ed from the enemy, in an open country, by fences and
buildings ; and in the forest, by trees. Thus circum-
stanced, every individual can display his own ingenuity
and Indian-like sagacity. Spread around the enemy,
every gun is directed at him ; and yet, there is no where
presented a sufficient object for his columns to aim at.
There is no error more common, than the attempt to
combine men who are only fitted to act separately. The
numerous defeats which the militia have sustained may
be ascribed, principally, to the forgetfulness of their com-
manders that there are different modes of fighting with
men, who are equally brave and well armed. They
should be left to act as individuals, be divided into small
parties, or combined in one entire body, according to the
nature of their position, and the state of their discipline.
In the case of individuals, each one is left, in a great de-
gree, to the exercise of his own sagacity, and feels his
dependence for success upon his own exertions. But a
few disciplined men, in a body, will disperse a great
many, acting independently of each other, by reason of
that coincidence of design, and combination of effort,
which increases the power of a numerical force to its
greatest extent. How, otherwise, could Cortes have
achieved the conquest of Mexico, with five hundred men ;
or the princes of India, with their millions of subjects, be
kept under the yoke by the army of a trading company.
It must hence be inferred, that the importance of training
(he militia is to be estimated by the comparative relation
of power which the same number of men bear to each
other, acting as a corps, or as individuals. It follows,
also, that the success of a corps, which is properly direct-
ed, other things being equal, will be in proportion to its
confidence in its leader. This, however, is not always
commensurate with his skill. As individuals, it will doubt-
less be in the ratio of their estimate of it ; but, in an army,
individual confidence is nothing. It is the confidence of
all those who compose it, as a body ; a united confi-
dence, which makes it an entierty, that is alone worth the
name. Let the commander, then, be ever so skilful, and
his men ever so brave, nothing but drilling can ever give
him the confidence of his corps. The officers must be
drilled to command, as well as the men to obedience. In-
telligence must guide the one, and confidence be unquali-
fied in the other : and, to the attainment of these military
virtues, practice is .necessary for both.
The militia, generally speakirfg, under the present sys-
tem, are now best drilled where the population is most
dense ; and the population of a country, in a great meas-
ure, depends upon the extent of its cultivation. We,
therefore, usually find them sufficiently well instructed to
act in the manner the nature of the country they inhabit
requires. On the sea-board, and in the thickly settled
parts of the country, where they are well trained, the
militia are qualified to act in a body ; and in the interior,
a portion of them are drilled sufficiently to hold the
fastnesses, which abound in our country roads, while the
rest, by hanging on the flanks of the enemy, acting under
cover as sharpshooters ; or in small parties, by intercept-
ing his supplies, harassing his rear, cutting off his baggage,
and picking up his wounded, will destroy him in detail.
The success which attended this mode of warfare, by
undisciplined troops at Lexington, was so marked, that it
is wonderful it should since have been so much disre-
garded. The very men, who, when formed in a body,
scattered like sheep upon the approach of the British
columns, rendered signal services, the same day, on the
enemy's retreat, when they were left to the exercise of
their individual intelligence. With such troops formed in
line, as assembled at Hampden, and Bladensburg, there
could be no hope of success. Whereas, in the routes
of the enemy, there were bridges and defiles for the
defence, of the artillery and disciplined corps; and build-
ings, bushes, and other cover, sufficient to have given
that confidence to individual bravery, and effect to its
exercise, which might have caused a different result to
both of the expeditions of the enemy, which were attend-
ed with such disastrous consequences. But where the
militia have been skilfully directed, from their superior
individual intelligence, and the great interest they have at
stake, they have always manifested an impetuosity and
valour, which have done their country honour, and fre-
quently enabled them to pluck the laurel from the brows
of veterans. What, but their obstinate resistance, could
have compelled the British troops to return twenty miles
to Boston, the same day they marched out to destroy the
stores at Concord ? What, better than their steady perse-
verance at Bunker's Hill, would have inspired the whole
country with confidence in its physical strength ? What
could have arrested Burgoyne in his progress, but their
zeal and intrepidity? Who, in the glorious battle ofBridg-
water, " stood undismayed amidst the hottest fire of the
enemy, and repulsed the veterans opposed to them ?" Who
defied the power of a fleet of ships at Stonington, and
offered to supply the enemy with their own shot at
the furnace prices ? Who repulsed the despoiling foe at
Baltimore, and laid their proud leader in the dust ? Who
swarmed around the British host of veteran conquerors
on the banks of the Saranac, and poured destruction
into its flying bands ? Who " penetrated into the midst of
the enemy's camp," the night after his landing at bayou
Bienverju, and by the impetuosity of their attack t appaljed
the heart of the taunting invader ? Who sent the crim-
soned Mississippi with the message of American valour
to the ocean ? These events are engraven on the militia
banners, and exhibit the power of a numerical force
of different degrees of discipline, where the troops
have been properly directed. But if, at Lexington or
Concord, the Americans had been formed in line,
can any one suppose the enemy's progress would have
been impeded by it; or, that at Bunker's Hill and
New Orleans, such slaughter would have reduced the
enemy's ranks, if the militia had not been covered
by breast-works. These battles are as distinguished
memorials of the military skill of Prescott and Jackson,
as they are of the valour of American soldiers. They shew
us the necessity of intelligence in the commander, as well
as of courage in the troops ; and, if they make us regret
the many opportunities that have been lost, for gaining
similar glory, they will serve as beacons to guide future
commanders in the path which leads to it. If, however, it
must be admitted that the militia have been defeated often-
er than regular forces would have been, according to the
chances of war, and the cause of it may be fairly ascribed
to the want of skill in its officers, of the proper mode of
applying their force to their object, the evil should
be corrected by suitable plans for instructing and prac-
tising them in their duties. But this proves nothing
against the system, for the remedy is consistent with it.
Notwithstanding the advantages which have so clearly
resulted from it, there are a number of very sensible men
who object to the training of the militia, as a useless con-
sumption of time, for another reason, which, upon examina-
tion, I think will be found to be more specious than sound.
It is, that the officers of the army unite in opinion, that one
who has never shouldered a musket, is a better recruit than
a militiaman. Admit it. Does it thence follow, because
militia drills will not make a soldier fit for the army ranks,
they do not qualify him for his own ? Until lately, the
militia have been instructed according to the system of
the Baron de Steuben; and a soldier, who was well
drilled in the principles of that system, would have
much to unlearn, before he could be instructed in
the principles of the French exercise. Now, though
it is admitted that the latter is the preferable system ;
yet, it does not follow that the militia is less effective,
when they are taught according to the inferior mode,
than they would be if they were not instructed at all.
On the contrary, any system of manoeuvring is better
than none ; because, in the one case, the men can act in a
body, and in the other, they must act as individuals.
There would be some weight in the objection, if the whole
object of militia drilling was to prepare recruits for the
army. But this is not the case. It is to qualify the militia
to act together. Let me ask general Swift, colonel Fen-
wick, and every other United States' officer, who has ever
seen a review of the troops of the Boston brigade, (and
others might be instanced with equal propriety,) whether
they would not have full confidence in them in the open
field. If they answer affirmatively, drilling has done them
some good ; for, as a disciplined body, they must be ad-
mitted to be more powerful than they would be as an
armed assemblage. However little weight there ever
was in this objection, there is none in it since con-
gress have established the same system of field exercise
for the militia that the army practises. Whatever the
militia soldiers now learn must be useful to them,
whether they act by themselves, or in conjunction with
the national forces. The same words of command, and
mode of executing them are taught to both, and the more
perfect the men are as militia, the nearer will they ap-
proach to regulars.
It should never be argued as an objection to the militia
that it is inferior to the army. The militia of no state ever
was or ever will be its equal : the nature of the institu-
tion does not require it : the militia were never expected
to be as good soldiers, nor to perform the same duties ; if
they were, there would be no need of an army. The at-
tempt, therefore, to make them so, would not only be con-
trary to its design, but would require the application of
means, for which the object would be no compensation.
It is sufficient that the ambition and intelligence which an-
imate and distinguishes the volunteer corps, enables them
to arrive at the highest standard of discipline, while their
connexion with nearly all the regiments, produces a spirit
of emulation among them which pervades all ranks. But,
to require the whole body of the militia to be equally as
well drilled as these, would be taxing their purses, instead
of their pride, which, having fewer objects of gratification,
readily answers heavier drafts. To exempt those from a
poll tax, who uniform and equip themselves ; or, to save
the troops from expense, while they are labouring for the
general good, by furnishing them with rations, at the pub-
lic charge, would be affording them that encouragement
which their exertions merit; but, to pay the men for their
services in the militia, as for their labour on the highways,
would be destructive of that patriotic pride which animates
them. Emanating, as it does, from a spirit of freedom,
this alone has been sufficient to advance the militia to the
degree of excellence it now exhibits ; and its cultivation is
the best means of preserving the system in the purity of
its original design.
There is also a very serious class of persons who ob-
ject to the militia, because its meetings are held near to
taverns, and afford opportunities for the indulgence of in-
temperance. This vice is admitted to be the greatest evil
in the country : it is the sin that most easily besets us.
The government should discountenance, and the wise men
in the community set their faces against it. But it does
not affect the militia, solely ; if it did, there would be some
force in the argument. If the trainings and military elec-
tions are held near to the taverns, so are the town meetings,
and those for the election of civil officers. Is that any
reason why either should be discontinued ? Our churches,
school-houses, academies, and all other buildings for the
public accommodation, are erected in the centre of po-
pulation, where the people can most easily convene. The
taverns are placed near to them ; not they near to the ta-
verns. This is a good reason why the taverns should be
better regulated, but none why all our civil, religious, and
military meetings should be abolished, and the ties of so-
cial intercourse dissolved. If the objection can be urged,
with greater force, against the military associations than
any others, it must be in those places, only, where the
militia receives but little encouragement. " Honor virtutis
prcemium." Let the people in such towns Jbllow the ex-
ample of our ancestors, and making militia offices the
objects of laudable ambition and they will place the in-
stitution under the control of that moral influence, which
will discountenance all the vicious propensities of its mem-
bers.
The peace society is also said to be opposed to the
militia, because it encourages the spirit of war. If so,
its opposition is founded on erroneous views of its pur-
poses. The militia is the rock of peace. It is formed to
resist aggression, and never can commit it.
There is yet another class whose mistaken opinions up*
on the subject, I apprehend, arise, in a great degree, from
considering the militia as a military institution, solely. If
it were so, every maxim of prudence would teach us to cul-
tivate, with assiduity, in peace, that which must be our
main reliance in war. It is when no ill consequences
immediately follow from the adoption of a principle, that
bad precedents are most likely to be set. We never fully
appreciate the value of that, for which we have no immedi-
ate want. It is in times of peace only, that we hear militia
duty complained of as burdensome, the trainings as too nu-
merous, and the reviews as a vain ostentation. It is then
even seriously contended, because, by the constitution of
the United States, congress have power " to provide for
organizing, arming and disciplining the militia, reserving to
the states respectively, the appointment of its officers, and
the authority of training the militia, according to the disci-
pline prescribed by congress," that the states may train the
militia or not, as they please. If such be the case, for what
purpose did the convention maintain the right in congress,
to prescribe its discipline ? This right could be of no use,
if the militia be not trained accordingly. As well might it
be said, that because the states have reserved the power
to appoint their own officers, they have it at their option
to appoint them or not. "When the constitution of the
United States granted this authority to the states, it con-
templated its exercise ; and, if the clause be not imperative
on them to make appointments of their officers, and to
train their militia according to the established discipline,
all the provisions of the constitution, regarding it, are use-
less. The law of 1 792, which prescribes who shall be en-
rolled in the militia, and how it is to be organized into
divisions, brigades, regiments and companies, limiting the
number of men in each, and defining the number and rank
of the officers, is founded on this construction. But where
is the wisdom of this law, if the states can refuse to ap-
point the officers. This is not now contended for, nor ever
was, that I know of; but it may with as much proprie-
ty be argued that the states may omit to execute the
provision for officering, as that for training the militia.
Both these powers are comprehended in the same clause,
and the same rule of construction must apply to both.
Little could it have been thought that any of the states,
which, with such wise precaution, retained to themselves
this safeguard of sovereignty, would have so soon neglected
ks exercise. Much less, that the doctrine by which they
justify it, would be openly promulgated in this, which has
derived such essential benefit from the service of its mili-
tia, in the principal cases which were contemplated for its
use ; in executing the laws, suppressing insurrection, and
defending from invasion. ~L,
Further, and to be more particular, (for a recurrence
to facts is often necessary to prove the importance of
principles,) what could have prevented the squatters,
who were encamped, a few years since, near the jail
in Augusta, for six weeks, from rescuing a prisoner
committed for shooting a sheriff in the execution of his
duty, but the militia ? or, who could have hung Jason
Fairbanks without its aid ? When the standard of re-
bellion was raised by Daniel Shays, and the spirit of
insurrection was spreading its influence over the state ;
when the courts of justice were either shut, or the
judges contemned on their seats; when civil proces-
ses could not be served, nor criminal sentences executed ;
what could then have restored our domestic tranquillity,
but the militia ? And, when a British fleet, with troops and
transports fitted for the purpose, was hovering on our coast,
and there were not two hundred United States troops on
the whole sea-board of the state, what could have prevented
sir John Sherbroke their commander, who surprised and
blew up one ship of war at Hampden, from destroying
those on the stocks at Portsmouth, and at Boston, but the
militia? Have we, who, when a fleet and transports, with
twenty-seven hundred troops on board, was on our coast
in 181 4, prepared to execute the devastating order of ad-
miral Cochrane, " to destroy and lay waste such towns and
districts upon the coast, as might be found assailable," were
flying into the interior with our families and moveables,
for safety, so soon forgotten our dependence on the militia,
when it was called out for our preservation ? And is our
fan
cy so dull, that, even now, we cannot imagine the spoil
and desolation that would have visited our towns and
cities in their horrid reality, but for its protecting power ?
Who could have thought that we, who, by two months of
its service, so lately, were secured in the possession of
more property than the whole establishment has cost the
government since the adoption of the constitution, should
now be told that the militia is a burden* too heavy to be
borne ? God grant that so long as such sentiments are dis-
seminated, the recollection of these events may not be for-
gotten.
Notwithstanding the protection it has affor ded ; yet, judg-
ing from the numerous propositions which have been made
in congress, within the last ten or fifteen years, for new
modifying the law of 1792, and from the speeches of the
members on the subject, we should be led to conclude that
the system had not answered the hopes of its projectors.
This makes it necessary for us to examine the proposed
substitutes, and see whether they are more likely to ac-
complish it.
The plan which is most countenanced, is that which is
founded upon a system of classification. This proposes,
that the enrolled militia shall be divided into distinct
corps, according to age, and that the youngest class shall
be encamped, each year, for a definite period, and the of-
ficers and men paid for their services.
The principal objection of a military nature, which has
been urged against this project, is founded upon the idea
that men of sufficient ability, and understanding of their
duties, are not selected for officers ; and that it w r ould
be impossible for them to teach the soldiers, what the
plan proposed contemplates they should learn ; wherefore,
the expense attending it, would be more than the advan-
tage gained. This objection has no weight with me. For
though the officers, in many parts of the country, are now
incompetent to the duties of active service, this does not
arise from their deficiency of capacity to comprehend
them ; but from a want of practice in those duties. It can-
not be expected of officers who render gratuitous services,
that they should learn more than they are required to per.
form; and where, (as in many of the states,) they are
merely returning officers ; if they do this duty as well as
coroners and constables, they comply with all the requisi-
tions of the law which prescribed it ; are entitled to all
the distinctions which such offices confer ; and are not
to be censured for a want of greater skill than their duties
require. The very plan proposed will cure the evil upon
which the objection is founded. It will enlarge the du-
ties of the officers, make military commissions desirable
with the young and ambitious, and introduce that emula-
tion among the officers, which always results in military
distinction.
My objections to the system of classification are rather
of a civil than a military nature; for although the militia
should be considered as a powerful military establish-
ment, constituting the great reserve of the country, to
be used in aid of the regular forces; and we should
be careful to make no arrangement of it which will defeat
this purpose ; yet, its importance to our civil institutions
is quite as much deserving of regard. The asperity of par-
ties on constitutional questions, of doubtful construction ;
the contests for power ; and the zeal manifested by those
who espouse the views of the contenders, excited by po-
litical causes, and embittered by local animosities, such as
we have already witnessed, ought to convince us, that
we are not always to be free from the interference of that
power, in our civil concerns, which is best suited to accom-
plish the designs of the most daring. Mankind are the
same in all ages. The objects of ambition are always
present ; and can it be supposed that the use of those
means which have been employed with success in esta-
blishing the dynasty of other nations, will always be
omitted in ours ? The history of all times, nations and go-
vernments, is so full of examples of revolutions, which have
been accomplished by the aid of mercenary troops, that
particular instances need not be cited. The various geo-
graphical lines which have been drawn on the map of Eu-
rope for the last thirty years ; the narrowed circles of em-
pires ; the overthrow of republics ; the establishment of
strangers on the thrones of kings, and of kings on the rights
of subjects, should teach us not to undervalue either the
moral or physical influence of that wise counteracting
cause, which our constitutions have provided, as the bul-
wark of our liberty. Not that the public rights are now
in danger, from troops which are insufficient to watch the
Indians and garrison the forts ; not that they ever would
be, from an army composed of such patriotic officers and
soldiers as that which has saved and exalted the nation's
glory: but, when the restraints of morals shall be loosen-
ed, and virtuous habits cease to control, the army will be
increased, and composed of different materials ; and how-
ever much we should, now, deprecate its interference, I do
not know why this country will not have as much reason,
as others, to apprehend it, then. Neither is the anticipa-
tion very extravagant, if the history of the past justifies
expectation for the future, that, whenever the United
States shall be divided by factions, and the human pas-
sions are inflamed by political rancour, the jealousy of
those powers, who vigilantly watch the local extention
and maritime strength of our country, will shew itself
in aiding either party with those mercenaries who have
brought Europe under the yoke.
If it be said that these are needless apprehensions; that
our country will never be so circumstanced, and that we
are guarding against evils which can never happen : it
may be so ; and, while the militia is properly supported
and encouraged, it will be so. But let those, who are
thus fearless for the future, look back ; and, after reflecting
on the exhausted state of the country in 1783, answer me
the question, what could then have prevented the army,
at Newburgh, from establishing their own pay, and our
political destiny, if they had so determined ? But, since
the establishment of our militia system, there never has
been a period when it would not have been the height of
folly, in any officer of the army, to suppose that it had the
same ascendancy. Though, therefore, the extended coast
and internal frontier of our country must have numerous
garrisons, requiring a large army, there can be no fear
from its extension, so long as the militia- is maintained with
proper spirit ; for no nation was ever subdued by its own
soldiers, until it had given up the use of its own arms.
I know that even the suggestion, that the army may be-
come oppressors, and that foreign myrmidons may be
employed in this country, is offensive to patriotism : but,
let us recollect that there is no word, in the political voca-
bulary, which has so many meanings. Every one inter-
prets it according to his own views. That party which is
united by the strongest sectional feeling, will apply the
same name to themselves that they do to their servile ad-*
herents, in other parts of it, who sacrifice important public
interests to motives of personal ambition. The whigs were
patriots, and the tories were patriots, and as Dr. Johnson
says that " patriotism is the last refuge of a scoundrel,"
when the time shall arrive for the employment of foreign
troops, those who introduce them, will, of course, be most
exalted patriots. Constitutional restraints will not then
be regarded, for the more numerous the obstacles, the
greater will be the claim to patriotism of him who shall
surmount them. Holland, Spain, Portugal, Naples, France,
have employed foreign troops, and the parties, who sought
their assistance contend, that in so doing, they were go-
verned by the motives of the most sublimated patriotism.
Obsta principiis, was the motto of our fathers. If we have
no right to indulge ourselves in the apprehensions of such
events, then they were unwise to give so much importance
to the establishment of principles which are of use only to
prevent their recurrence.
Is this a useless or untimely digression ? It is ; unless it
be justifiable to point out the consequences which will fol-
low from one doctrine, in order to test the utility of its op-
posite ; and for this purpose I have indulged in it.
I said that the militia was of as much importance in a
civil as in a military view ; and that the plan proposed
of classing the militia, would diminish its useful civil influ-
ence. I mil endeavour to illustrate it. The camp would
be composed entirely of young persons, strangers to each
other, and therefore would expose the "virtuous to the
contamination of its vicious members. Military regu-
lations may make it a school of military science ; but,
not a nursery of virtue. On the contrary, the habits of a
camp are inconsistent with that temperance, industry and
frugality, which are encouraged by domestic pursuits and
relations. It would subject minors to an authority, less
moral than that of parental control, at a period of life
when this is most beneficial. It would take the younger, and
most active part of our citizens, away from their homes ;
interfere too much with their civil occupations, and inspire
the youth of the country with a greater love of military
glory, than of civil liberty. But no such consequences
result from the present system, where all able bodied men,
between the ages of eighteen and forty-five, are enrolled
and train together ;* the father with his son, the master
with his apprentice, and the guardian with his ward. The
companies are composed of persons of the same neighbour-
hood, where the vicious propensities of those who are en-
rolled, are known and restrained by the influence of the
elder and moral part of it. The rewards of merit are also
greater, because the number of officers is in proportion to
the number of those w
ho are subjected to duty. Such train-
ings are productive of a friendly intercourse in society.
They give an opportunity for those who are in the humbler
walks of life, to disclose their talents and virtues to others
whose consideration is deserving of regard. They elicit
merit from a class of men who would have no other chance
of shewing it. They make every officer who has gained
the good opinion of his fellows, ambitious to retain it, and
those, who are coming forward into life, desirous of the
distinction which a commission confers. They teach civil-
ity and respect for authority. They introduce habits of
subordination in society ; and impress, upon the younger
part of the community a sense of that obedience to the
laws, which influences all their conduct in life ; and taken
in connexion with our schools of education, and our esta-
blishments for moral and religious instruction, they make
an orderly community.
When the objections, which the institutions and habits
of the eastern states thus present to the system of classifi-
cation, are considered, then we hear of a plan substituting
drills of officers for those of privates. This, if they had
no opportunities furnished them of practising in their va-
rious stations, would be neither more nor less than turning
officers into private soldiers.
By another proposition, all hope of making the militia
efficient, as corps, is relinquished ; the trainings are to be
discontinued ; the mode of arming and equipping the pri-
vates changed ; bayonets and cartridge boxes given up ;
and rifles and powder horns are to be furnished to the
citizens, and the whole militia turned into sharpshooters.
It is true, that it is better that the arms should be kept
by the men themselves, at their own dwellings, than in
the public arsenals. They thus learn to take care of
them, at least ; and as opportunities for hunting and prac-
tical shooting offer, they improve as marksmen. But few
boys would learn their catechisms, if the books which
contained them, were to be found in the public libraries,
only ; and but few men would be familiar with the use of
arms, which were not kept in their own possession.
But the plan, if it be viewed in a military light only,
will be found to be of partial use, and will operate almost
exclusively for the benefit of the foresters, who would
thus be supplied with rifles at the public expense. But
where the country is settled, the general use of arms is
given up ; and, as the forests are cleared, drilling becomes
necessary as a substitute for that habitual exercise of
shooting at game, which has obtained for Americans the
reputation of being the best riflemen in the world. If this
be not required in the populous parts of the country, the
backwoodsmen alone will be able to defend themselves,
as none others will be accustomed to the use of the arms
with which they are to be furnished. Independently of
this, the effect of a plan, upon the order of society, which
would turn the whole effective population of the country
into guerillas, must suggest, to every reflecting mind, suffi-
cient objections to it.
Such propositions as these, being seriously submitted,
and zealously supported, in the great hall of the national
legislature, whose debates and doings are spread over the
whole country, have their effect upon public sentiment,
and naturally tend to create doubts in those, who other-
wise would aid in perfecting the present system. The
inquiry then cannot be considered irrelevant, from what
quarter do these sentiments emanate ; nor invidious, if it
shall be found that they originate in those states which
have not carried into effect the existing laws, in a mode
properly adapted to test the merits of the established sys-
tem. In some of them, the militia in the cities, only, are
trained ; and in others, training is omitted altogether by
requisition of law, or the practice under it. Where this
is the case, as the enrolment and organization, the inspec-
tion of arms, and the returns of the numerical force, all
must fail, it is no wonder that the system has fallen inter
disrepute. On the contrary, in those states where the
application of the principles, upon which it is founded,
has been fairly made ; where the emulation of different
corps is excited ; the pride and the ambition of the officers
stimulated ; where commissions are the indexes of public
estimation, and the passports of distinction ; in fine, where
the system receives the support of the civil government,
and the countenance and aid of the influential members of
the community, there we hear no complaints of its incom-
petency. It cannot be considered as unbecoming in us,
then, to combat opinions which originate in ignorance of
its merit ; for, if these are left unexposed, they may be
received for truths, and threaten the destruction of a sys-
tem which has become identified with the habits, manners,
associations, and interests of this part of the country.
To do this, we must trace the causes which have made
the same system so beneficial in this commonwealth, and
so inefficient in some other parts of the United States.
We shall discover them, principally, in the long establish-
ed customs of the people whose habits originated it ; the
early establishment of a regular military department
under the state government ; the conformity of the state
laws and general orders to the constitution and laws
of the United States, by which the aid of the civil tribu-
nals is afforded, in the collection of the fines and penalties
for enforcing their provisions, and in support of their au-
thority ; the estimation in which the militia is held as a
civil institution ; the facility the soldiers possess for drill-
ing, by reason of a greater density of population ; the
substituting of company trainings for battalion meetings,
by which the inhabitants of each neighbourhood, who are
known to one another, can come together oftener, and
with less expense, than when they are assembled in larger
bodies ; and in the mode of selecting officers by the free
votes of those who are to be subordinate to their authority.
It would be tedious, if I were to enlarge on these causes ;
but, as you may not be practically acquainted with the
favourable operation of the last, upon the respectability of
the establishment, I will confine my remarks to that, be-
lieving that its illustration will afford some gratification to
the great champion of the elective franchise in well ba-
lanced governments.
The elective principle was early applied to military
institutions in this country, by those who regarded
military power, both as the most important to the preser-
vation of their civil rights, and the most dangerous to
their existence. The people chose to keep the control of
it, therefore, in their own hands. The advantage result-
ing from it, under the colonial government, and the ag-
gressions of the troops, whose officers received their ap-
pointments from the crown, upon the citizens, just before
the revolution, confirmed the favourable opinion of the
principle which was already entertained, and induced
our civil fathers to incorporate it into their frame of go-
vernment. It is there provided that the privates shall
choose their company officers ; and the captains and
subalterns, the field officers. These latter are made the
electors of their respective brigadier generals ; and the
two branches of the legislature, by a concurrent vote, de-
signate the person on whom the governor shall confer the
high and important office of major-general. Thus, in all
cases, the power is lodged with those, who not only have
the most interest in the choice, but who are the best judges
of the requisite qualifications for the vacant office. The
disposition which is generally manifested for regular pro-
motion, from the lowest to the highest station, operates as
an inducement for the subordinate officers to hold their
commissions some years, with a view to the attainment
of the honours and distinction of higher rank. An office?
is seldom superseded without cause, while the power of
the electors to do it, every time a vacancy occurs, is
a continual stimulus to the ambitious to qualify them-
selves for their present duties, as well as for those of
higher places. Additional motives for the officers to con-
tinue in command, long enough, not merely to obtain a
competent knowledge of the active duties of the field, and
to become acquainted with the provision of the laws regu-
lating enrolments, inspections, and the returns of their
respective commands ; but, to gain a practical knowledge of
the modes of filling up the blanks, the regular modes of
their transmission, and in fact, the routine and forms of the
military department, and the principles which govern it, are
afforded by the laws which confer immunities upon those,
who have been honourably discharged from their offices of
a greater or less value, in proportion to the length of their
period of service. These inducements are also increased
by the established principle, which will not permit an
officer to resign at his own will. By taking a commission,
every one subjects himself, under all the responsibilities
of the law, to the command of his superiors, until the
commander an chief is satisfied, either that the peculiar
circumstances demand, or the good of the service requires,
the acceptance of the resignation of the person who offers
it ; while those who do their duty, feel a security in the
possession of their authority, from their liability to re-
moval from office by a sentence of a court martial only,
regularly detailed from the roster. When, in connexion
with the preceding circumstances, we take into consider-
ation the early establishment of a military department in
the government ; and its regular organization, a few years
since, under the direct administration of one of the most
experienced, and intelligent officers of the revolutionary
army: that the adjutant general is required to make out
and issue commissions and discharges for all the officers ;
to ke
ep a register of their rank and stations, and a record
of all the correspondence, orders, and decisions, upon mili-
tary questions, and to furnish the officers with forms and in-
structions relative to all their duties ; that, under the direc-
tion of the commander in chief, as the head of the mili-
tary staff, he maintains the officers in the proper exercise
of their authority, and holds them responsible for its ne-
glect, by the application of general principles to the
same case, whenever it occurs, without regard to in-
dividuals ; and, that his opinion, when requested in
writing, is at the command of every officer, upon any
question of practice or of duty, it must at once be
seen, that there are considerations offered for a class
of men to take commissions, and qualify themselves for
the performance of their duties, who, by no other mode
of selection could be induced to enter the service.
It is true that the power of electing their own officers,
is liable to abuse ; but the discretion which is exercised
in discharging them from service, checks it. It is this
power, which the commander in chief, in this common-
wealth, only, possesses, that prevents some companies from
attempting to bring the institution into ridicule, by choos-
ing unworthy men as their commanders. Instances of
this trifling disposition were frequent, until the governor
refused to discharge officers of this class, when, ashamed
of their folly, at the time of their election, their constitu-
ents have afterwards requested them to resign. Since this
principle was established, the electors, finding that they
were the only sufferers from their own levity, have ceased
to indulge such caprices. But when the mode of election
is compared with that of appointment by the executive,
who cannot be personally acquainted with the merits of
all the candidates, for the numerous offices in his gift, and
who therefore acts, as in some of the states, upon the
irresponsible recommendations which are made of can-
didates, to fill subordinate stations, by those who are in-
vested with the powers of higher offices : or, as in others,
upon the proposition of the judges of the county courts,
who, of all men, are the least likely to be acquainted with
the qualifications of the candidates, it can hardly be
doubted that it has the preference. It has also this far-
ther advantage, that men of elevated standing, who might
refuse an executive appointment, when they are chosen
to command by their fellow citizens, consider it as so de-
cisive an indication of their partiality, as will hardly permit
them to disregard it. In fact, there can be no greater
evidence of confidence, than that which is shewn in the
investment of another with military authority, by the free
votes of those who are subject to it. Numerous instances,
of the favourable operation of this principle, might be
cited in every part of the commonwealth ; but your own
knowledge of the distinguished citizens, high in the confi-
dence of the government and the people, who have had
the command of the brigade in which you reside, and
that which the capital of the state composes, makes a fur-
ther illustration of it unnecessary.
While it is thus shewn that the elective principle offers
many inducements for men of distinction, and laudable
ambition, to take commissions ; there is another, and as it
regards its effects on our civil institutions, a greater
benefit resulting from it.
Officers who perform their military duties accept-
ably, become the objects of civil promotion. It is
strictly a republican principle. The doors are open
to all. There are as many men introduced into the
municipal, county, and state offices, and into our legisla-
tive assemblies, from the militia, as from the bar. The
gentlemen of the latter are fitted for them by education ;
and those of the former are selected from among their
fellows, for that natural strength of mind and decision of
character, which fit them for the acceptable performance
of their duties, as officers. Those who accept commis-
sions are placed in situations, in which the qualities of the
mind and the heart are developed, and their temper and
morals disclosed. They are obliged to appear in the
public presence, and thus afford, to its discerning eye,
opportunities of discovering their faults, and measuring the
extent of their capacities for usefulness in civil stations.
Not only so : every act of their lives has relation to the
promotion or disgrace to which they subject themselves,
when they first take commissions. By the frequency of
elections their character and conduct are brought to trial,
not according to previous notice, but whenever a vacancy
happens by the discharge of any of their superiors.
They are, therefore, obliged to be ever watchful of their
conduct. Knowing that they act at all times under its
special observance, militia officers feel a responsibility that
does not attach to other members of the community. All
are taught to consider them as men of honour ; and it is only
by acting like them that they can expect a continuance
of the estimation in which they are held. Every man
who wears an epaulette feels, in a greater or less degree,
the pride of his station. This causes him to cultivate
upon all occasions, that propriety, and dignity of de-
meanour, which are so essential to give effect to official
authority. Militia offices have much the same effect on
those, who are ambitious of consideration among men, that
rewards of merit have in schools. They have, therefore,
a powerful influence on society and conduct. While the
laws punish convicts, to deter from crime, the militia offers
continual incentives to virtue. It has always been ob-
served, that the inhabitants of the frontier settlements are
rude, until they become the subjects of military discipline.
Although this is never forced upon them ; yet, so sensible
of its influence are the moral and discreet part of the
settlers, that the authority to organize new military com-
panics is generally petitioned for, before the inhabitants
are sufficiently numerous to form them. When their re-
quests are granted, the manners of the people begin to
improve ; civility and subordination are introduced among
them ; their police regulations begin to partake of the spirit
of their military institutions, and are executed in the order
of their forms. These are sufficient considerations to make
them solicitous of becoming subservient to that military
authority, and subject to the imposition of the fines and
penalties resulting from disobedience to it, from which
they were before free. In a new country, it may, there-
fore, be justly said, (and I think the observatio'n might he
further extended,) that militia makes manners, and man-
ners make laws.
The first elections are made by the citizens, from
among themselves. Ensigns are put upon probation. If
they are attentive to their duty, and behave with pro-
priety, they, like other officers, arc regularly promoted.
It is true that the electors, in their original selections
from the ranks, may be deceived in the character and
talents of the persons chosen, and often are so ; but, when
this is the case, or officers of any rank lose their stand-
ing in society, from any cause whatever, the next elec-
tion cures the evil ; and the subjects of it, by the
choice of their subordinates to superior stations, are in-
duced to request their discharges, as superseded officers,
which are never refused. While, therefore, from the dis-
cernment of the people, it turns out in practice, that more
ensigns are superseded than all the other company officers
united, it ought to be made known, that, as our schools
afford equal opportunities to all classes of the community,
for obtaining a good education ; often, very often, is it, that
military elections bring men of respectable talents and
acquirements into the notice of society, from the humbler
walks of life, who are, in consequence, enabled to display
those qualities which recommend them for important civil
employments.
If the militia establishment is thus respectable in Massa-
chusetts, and has so well accomplished the objects of its de-
sign, it may well be asked, what reason we can have to fear
its destruction ? To which it is replied, that it is difficult for
individuals or states long to maintain a standard above their
neighbours. Admiration soon degenerates into envy ;
and an elevation which may appear to be of command-
ing importance, in the view of those who have as-
cended it, will be considered as uselessly high, by
those who cannot attain it. It is not the institutions,
or individuals which have a little, but those which have
the greatest celebrity and influence, which are the ob-
jects of attack. Accordingly, when the militia was inef-
ficient, in comparison with its present condition, it met with
general support ; and it was not until it had attained to that
degree of excellence, which made it an example to other
states, that we began to discover within ourselves the
operations of that casuistic jealousy, which has since been
covertly making nearer approaches, and has now com-
menced its open assault. But it is not a plain proposition
to abolish the militia system that 1 fear. Such an one
presents the whole subject to consideration ; and the con-
sequences of its adoption would be so apparent, to all,
that it need not be apprehended. It is the undermining
policy of its foes, which has already weakened its
foundation, that we have reason to dread. This is now ex-
hibited in constant attempts to diminish its respectability,
by discouraging the distinguished members of the commu-
nity from engaging in its duties, or accepting its offices ; by
increasing the number of exempts, and thereby making its
burdens less equal ; by withholding the customary patron-
age, and jeering at its celebrations ; by refining away the
requisitions of the United States law, and increasing the
embarrassments of enforcing its provisions ; by subduing
the ardour of the soldiers, making disparaging compari-
sons of their relative obligations ; repressing the spirit of
the officers, and reducing the objects of their ambition.
If this was out door influence only, it would not require
very serious consideration; but, when public sentiment
is so far affected by it, that the laws partake of its spirit,
it becomes an object deserving the strictest scrutiny into
its probable effects on the system itself, and its conse-
quences on the community at large. Thus, the power of
the legislature to add to the number of exempts, recog-
nised by the United States law, has been exercised by
ranking firemen among them, and by granting to the select-
men of the several towns in the commonwealth, authority
to appoint them. This is exerted in many places by
keeping more fire engines than there are military compa-
nies, and thereby making the roll of firemen dispropor-
tionally great to that of the train-band.
So in the militia act of 1810, which, in every other
respect, must undoubtedly be considered as an improve-
ment in the details of the system, we find the principle
adopted of a right in the state legislature, to excuse a part
of those persons from training, who, by the United States
law, must be enrolled, and who, of course, are subject to
drafts for actual service ; thereby absolving them, (if the
state authority so far extends,) from any obligation to
perform that specific duty which fits them for that service.
However inexpedient the plan of excusing those, who
were between the ages of forty and forty-five years,
from training, must be considered ; yet the condition on
which the privilege was granted, of requiring such as
chose to avail themselves of it, to pay an annual stipend
towards the purchase of uniform, arms, and equipments
for such as remained subject to all the requisitions of
the law, deserves to be applauded. The application of
the money, derived from the exempt fund, thus created,
to the purchase of the few articles, required to give a
respectable uniformity of dress to the whole body of the
militia, encouraged the hope, that, in a short time, a
measure would be carried into operation, without expense
to the individuals benefitted, which, having the effect to
increase the soldier's pride of conduct, as well as appear-
ance, would thereby add to the dignity and efficiency of
the militia establishment. A state uniform, as a measure
of economy, only, is attended with as much gratification
to the individuals of the militia, as benefit to the whole
body ; for, when any person has once been furnished
with a proper dress, he will always be in uniform with the
militia of any part of the state where he may happen to
reside. The evil tendency of the principle, upon which the
immunity of partial exemption from training was founded,
was, therefore, blinded by the utility of the provision
annexed to the grant.
A few years afterwards, we find the legislature reliev-
ing those from training, who are above thirty-five years of
age, thus lopping off another large proportion of the train-
band. This was a serious injury to the militia. Still, as
the number of conditional exempts was increased by it,
the relief fund was proportionably enlarged, and this serv-
ed to keep up the spirit of those who remained subject to
duty. This encouragement was not long afforded ; for
the consequence of admitting principles was shewn in a
following act, which repealed the condition as to all those
who are above the age of forty years, and reduced the
number of company trainings from three to one. Thus all
who are above forty, are entirely released from duty, and
those above thirty-five, may purchase exemption for an
annual stipend of inconsiderable amount, in comparison
with the extent of the services required at the time it was
fixed ; but which, since the number of the trainings have
been reduced, has so nearly become the equivalent of the
personal service required, that but little benefit can be
expected from it.
There was a law passed, two years since, for reducing
the number of inspections and reviews, which afforded to
the general and field officers their only opportunity of
practising in their duties ; but this, was so much in advance
of the march of public sentiment, that it was repealed the
year after its enactment.
While we admire the intelligence which supported this
principle, we cannot but regret that the importance of the
connexion between the drilling of the officers, and the
training of the privates, was not seen. To experienced
men their mutual dependence is apparent, and necessary
to the utility of the system. The reduction of the train-
band, and the diminution of the company trainings, of
those who remain subject to duty, without increasing the
fines for non-attendance, will, it is feared, have so serious an
effect upon the recruiting of the volunteer associations, and
upon the discipline of the whole militia, that the reviews,
themselves, will be of less utility, than heretofore.
It has before been attempted to be shown, wherein the
principle, involved in these measures, was at variance
with the spirit and design of the constitution, ^ot that I
mean to deny that the states have any authority over the
subject of training the militia, for that is a power which is
expressly reserved by them. The time and place ; the
persons who shall act as instructers ; the mode of assem-
bling the troops ; the number of them that shall be collected
together ; the fines and penalties for neglect of duty ; the
mode of collecting them, and their appropriation ; the pun-
ishments for disobedience of orders, and the manner of
inflicting them; these, and other details, are left to the
discretion of the state authorities. It was wise they should
be so, in order that the modes of their accomplishment
might conform to the customs and habits of the people, in
the different latitudes of this widely extended empire. But
the manner in which the militia shall be trained is not a sub-
ject of state regulation ; for this is expressly required to be
according to the discipline prescribed by congress. The
terms of the reservation, therefore, imply the exercise of
the reserved power. The discipline of the militia is the
object of the United States' authority ; its training the
means, reserved to the state governments. It is a necessary
consequence that, unless the means are adopted, the object
is defeated. It also follows, that if the number of trainings,
which has been established, is not sufficient for the accom-
plishment of that object, it should be increased, instead of
being diminished. If, however, a state legislature can omit
to make provision for training and disciplining a part of the
force, it can the whole ; and, in our legislature, we see that
the successors of those, who exempted a part of such as
were required to be enrolled from militia duty, upon con-
dition, have found that it was quite as easy to release them,
without any condition whatever. Thus, by pursuing the
course which is begun, it requires but little foresight to
predict that the design of the constitution will be defeated,
and that it will be but a few years before the organized,
armed, disciplined, and proud spirited militia of this com-
monwealth, will be reduced to rude assemblies and disor-
derly "bands.
It is when sur.h inroads are making in it, that the friends
of the militia system are obliged to trace its origin, deve-
lope its advantages, and appeal to its founders for a con-
tinuance of their aid in its support.
The early habits of the people of this commonwealth
prepared the way for the adoption of a militia system which
differs from that of all other nations. It was engrafted on
a stock, which was able to support, and which long con-
tinued to nourish it. The founders of our political consti-
tutions anticipated its influence in support of civil govern-
ment. They acted on the principle, which will stand the
test of ages, that " a militia is the only safe defence of a free
state." This sentiment was not confined to statesmen ; but
a very great proportion of the illustrious officers of this state,
who, by their skill in arms, had eminently contributed to
the establishment of our independence, gave their first en-
deavours, on the return of peace, to the improvement of the
militia. The journals of the legislature shew them to have
been ardently engaged in framing laws for carrying their
plans into operation, and constantly urging the importance
of the institution to the preservation of our civil privileges*
The law of 1787, which contains the fundamental princi-
ples of those which are now in force, was drafted by the
most distinguished officer of the revolutionary army, now
living in this commonwealth ; and those only,who know the
lax state of militia discipline, at that time, are able fully to
appreciate the extent of the exertion which was required to
induce the whole people to lay themselves under the re-
straints, which experience testifies were indispensable to
its improvement. Their efforts did not terminate with
their legislative labors. They joined the " military com-
pany of Massachusetts" for the instruction of officers ; took
commissions in the staff, and in the line of the militia ; and
upon the enactment of the law of congress of 1792, esta-
blishing its organization and discipline, by their personal
exertions, assisted to carry its provisions into immediate
effect. They strove to introduce into it that discipline and
subordination, from the want of which the country had so
seriously suffered, during the revolutionary war. The
distinguished names of Heath, Lincoln, Brooks, Jackson,
Shepherd, Cobb, Sewall, Dearborn, Hull, Mattoon, Var-
num, and numerous others, who took subordinate, but not
less useful stations, attest to the truth of this remark ; and
it is not among the least of the considerations which have
entitled them to the plaudits of their countrymen, that
those who were worn down by the fatigues and sufferings
of an arduous service, did not cease from their labours,
until they had established, and c
arried into practical ope-
ration, a system so admirably constructed for the per-
petual security of the liberties they had conquered.
It was, in a great degree, by the exertions of one of
these individuals, that, only a few years after the close of
the American war, a militia line was exhibited to Wash-
ington, on the very ground where he first took the com-
mand of the American army, at Cambridge, which called
forth the warmest expressions of his admiration, at the
comparative beauty and efficiency of its troops over
those with which the American revolution was achieved ;
and of his strong desire, that the other states would
follow our example. Those, who know the great improve-
ment which has been made in the militia, since that
period, ought not, surely then, to undervalue it now ;
nor to forget, that the example and conduct of those dis-
tinguished heroes and patriots, gave it an impetus which
has not yet ceased to operate. It should be a sub-
ject of gratitude to us, that many of them are the living
witnesses of the prosperity and usefulness of a plan, which
had so much wisdom in its design, and called forth such
disinterested efforts in its execution.
The objections to maintaining the militia system, in time
of peace, if we give that credit to the enlightened views of
another class of its opposers, which their general conduct
entitles them to, does not arise so much from selfishness, as
from a settled belief, that if it were to be abolished to-mor-
row, the same, or a better system, might be raised up, at
any future time, when it should be needed. But there can-
not be a more mistaken notion. The militia laws form a
system of details, not for the conduct of men in any defin-
ed circumstances, or on any given occasion ; but, for the
government of thousands and hundreds of thousands, bear-
ing an infinite variety of relations to each other ,.and to
those with whom they may be called to act on all occa-
sions. The militia is a system of practice. Even the boys
now almost become soldiers, from observation. But if there
were no militia exhibitions during peace, how few persons
would there be, after a lapse of years, who could justly
estimate the advantages of the system. This is not all. In
the militia, as in the judicial system, there are but half
the rules in the statute book. The decisions of military
courts, and courts of law, upon contested points of autho-
rity ; the general orders of the commander in chief,
explanatory of the laws, and of the officers duties ; his
decisions upon the proper mode of conducting elections,
and upon the numerous contested cases of their validity ;
the systematic forms for all branches of service, and the
practical duties of the officers relating to their use ; the es-
tablished routine of duty, which can be attained only by
experience; all these, form a code of common law, with
which every officer, as he advances in rank, becomes more
and more acquainted ; and we might as well expect to
establish a judiciary system, whose operations would har-
monize like the present, after the lawyers were all dead,
as to reorganize the militia by a statute, with all the ha-
bitual exactness of the existing establishment, without the
aid of practical men. Besides, if it could be done, the
expense of it would be more than the cost of its continual
maintenance, and its inefficiency incomparably greater.
Most improvements result from practice. If there are
those who think there might be a better system, let them
propose it while the principles of the present are known.
We now have a standard by which to test the merit of the
proposition. In the existing system there is abundant room
for improvement ; but no reason, that I can discover, for its
change. But if there were, who, after the present order
and arrangement of the militia shall have been broken up,
when a necessity for its reestablishment shall arise, will
be able to carry their new schemes into operation. Shall
we ever again see such talents, experience, patriotism,
and zeal exerted in its behalf, as the origin of the ex-
isting institution produced ? Shall we again have, for a
succession of thirty years, so many intelligent and practi-
cal men in all its departments, uniting their influence and
personal efforts for its improvement? There is no reason
for the indulgence of such expectations. Those who re-
flect upon the subject, must come to the conclusion, that if,
with our knowledge of its merits, the militia is abandoned,
it will be as an exploded system, which it will be impossi-
ble to renew. The changes in the state of society, which
would be produced by it, and the consequent necessity
which would then arise for the employment of its only
substitute for the support of the civil power, I leave to the
imagination of those, who, I hope, will never experience
them.
The best evidence we have of the expediency of any
system, is derived from those who have the most intimate
knowledge of its practical utility. If, then, we take the
testimony of those eminent men who founded it, as well as
of those, who have since held, or now are invested with
commissions in the militia, we shall find a perfect concur-
rence of sentiment in its favour. Under the guidance of
one of its distinguished supporters, sufficient opportunities
have been afforded me of comparing its theory and prac-
tice, in their minutest details. Having witnessed, also, its
activity and spirit, when called into service, in time of
war, and the harmony of its operations in peace ; having
observed the advantages resulting from it to civil society,
and the ease with which it is maintained, I cannot refrain
from declaring my admiration of it, as a proud monument
of the wisdom of its founders.
In expressing my opinion of the constitutional system,
in such unqualified terms, I do not mean however to be
understood as advocating the United States law, as it now
stands. This was passed thirty years since, and the views
which are entertained of their authority under it, by the
state legislatures, or rather the mode in which it has been
exercised, shews the necessity of further provisions, to
give it efficiency, uniformity, and perfect equality.
Among the powers which this law confers upon the states,
that of granting exemptions from its duties is one which has
been attended with the greatest misuse. If this was further
restrained, the expense of the system equalized, books of
instruction and arms provided at the public expense, and
a mode of teaching and practising the officers as well as
privates, established ; it might then be considered as better
fitted to accomplish the design of the institution. As far as
state authority extended, these objects have been aimed at
in this commonwealth ; and, although congressional power
is necessary for their entire accomplishment, our militia
may with propriety be considered as a military castle,
built according to the most simple rules of civil architec-
ture, uniting in it the ideas of strength, security and beauty.
But, because the interior is not finished, rather than exert
ourselves to complete it, shall we stand by, and witness the
ravages of the inconsiderate who assail it, without an
effort for its preservation ? Or, do we fear that the pow-
er of the national government has already become so
great, that we should be overwhelmed in its vortex were
we to attempt to maintain the bulwark of state sove-
reignty ? Surely we are not ready to abandon the lines of
distinction, which constitute the federative character of
our civil institutions. The principle s of freedom, in which
our fathers instructed us, are not yet forgotten ; nor, were
they so weak as to lay the foundation of our privileges in
the sand. Respect for them, if not regard for our own
interests, should arouse us to exertion. Have we forgot
who were the framers of our civil constitutions ? who broke
the slender ligament, which could not restrain the states
from preying upon one another, and bound them together,
by the ties of affection and interest, as a band of brothers,
for mutual defence and protection ? Or, do we mean to
reproach them, and say, that when they ceded to the
government of the union the power to raise armies ; build
navies, forts, and arsenals ; to regulate commerce, declare
war, and to lay duties on imports and tonnage ; to make
treaties, coin money, and levy and collect taxes upon the
people, without the assent of the states, they only reserved
to them a power, for their own security, which is now
thought not to be worth exercising? Were the Adams',
Hancock, Washington, Henry, Madison, Munroe, Jay,
Hamilton, King, Randolph, Marshall, Pendleton, Rut-
ledge, and a hundred others, to whom we are indebted
for our institutions of government, ignorant of the princi-
ples of civil liberty? Had they no knowledge of the human
character? or, have we become inattentive to our own
interests ? Is there no strength in this check to a conso-
lidation of power? or, is there no utility in maintaining the
union of the states ? If we are of either opinion, we widely
differ from those great men, who, when they drew the lines
of demarkation between the powers of the states, and of
the federal government, limited the latter in its control
over the physical power, in a manner which they consi-
dered essential to the independence of the states. It is
to this very reservation that the militia owes its chief im-
portance. Nothing but the high value which they attached
to it, could have indjced the officers of the revolution to
have volunteered their services for the organization and in-
struction of the militia, on the return of peace. It was the
intrinsic value of the principle, and not ostentatious pride,
that called them forth. Those, therefore, do the militia
officers great injustice, who attribute their exertions to this
motive. Let me ask such seriously, whether they really
suppose that the gallant hero, who gave Burgoy ne his fatal
blow ; or, that distinguished veteran, who received Corn-
wallis' sword, accepted the commands of mil
itia divisions
because they were delighted with the pageantry of publics
parade ; or sought the flattery of distinction, at a military
review? If such considerations influence the conduct of any
of their successors, I trust there are not a few who are actu-
ated by the same elevated motives and patriotic views,
which dignified the conduct of their great exemplars. Let
not, then, jealousy, parsimony and prejudice, confirm their
sway : let the origin and purpose of the institution be con-
templated; the character and motives of its founders inves-
tigated ; the great example of its early patrons remarked ;
its moral and political influence observed ; the powers
granted, and those retained, considered ; and the conviction
must follow, that while the purity of liberty is to be pre-
served by our systems of education, its security depends on
placing arms in the hands of the whole body of active
freemen, and training them to their use.
There is so much good sense and intelligence in the
people of Massachusetts, that those who appeal to it, without
success, have good reason to doubt the correctness of their
own views, and none need to fear the exposition of their
whole design. While the stubbornness of her virtue has
been much softened by the liberal views and generous
policy of other parts of the union, she herself, in time, fur-
nishes some examples worthy their notice. Her perseve-
rance, in particular, for which she has been distinguished
from her earliest history, was most strikingly exemplified in
maintaining her determination to continue specie payments
for her bills, during the late war. What strange notions
were then abroad. What new theories promulgated. What
dangers exposed. Amidst the general relaxation, Mas-
sachusetts alone, stood braced up, sustaining the ancient
landmarks of property, against the delusive chimeras
which threatened the country. The return of the other
states to the standard of her principles, shews the impor-
tance of those masculine virtues of constancy, fidelity, and
firmness, which governed her conduct. Never was the
value of a single example, to a whole community, more
advantageously displayed than in the instance referred to ;
nor, can a better opportunity be offered for the exposition
of the same virtues than the present state of the militia
affords. It surely cannot be feared that the descendants
of that rugged people, which Mr. Burke described, in
his speech on American taxation in 1774, who took so
much pride in their sacrifices for the support of specie
payments, when the inroads, which are making in their
militia system, are pointed out, and the consequences of
its deterioration are disclosed, will remain insensible to its
importance ; or, that they, who thus vigilantly guarded
and preserved the vital principle of property, will abandon
the chief mean of its security.
The value of our militia, as an example should be es-
timated by the superiority of its discipline. If what was
said of the Massachusetts militia during the war, by one,
who had seen that of the other states, was true, " that its
spirit and drill was as much superior to that of most
other parts of the country, as the value of its specie cur-
rency was above their unredeemed bills," our pride, as
well as interest should be engaged in supporting its ele-
vated standard. But engaged in those objects which im-
mediately affect its interests, the public have become
regardless of the causes which threaten the dilapidation of
the militia. Its attention must be called back to the con-
sideration of first principles. The importance of the insti-
tution in a civil, as well as a military point of view should
be pointed out by a discriminating mind. The public
apathy is so great, that the loud voice of the prophet must
be sounded from the hills to awaken its attention. The
strong arm of the defender of our civil constitutions is re-
quired to be stretched out to point to us the way in which
we should go. I ask you, then, sir, to express your opinion
upon this subject? I ask you to exert that commanding
influence, from the exercise of which your country now
receives so many benefits, and save us from that desolat-
ing spirit which threatens the demolition of an institution,
which is so essential to their long continuance. I have
heretofore addressed governor Brooks as our military
head. I invoke your aid, as our civil father. I know whose
assistance I solicit. I address one who has lived nearly
half the years of his country's existence ; whose mind is
as vigorous as the native oak of our soil, and whose remem-
brance, of what to us are known only as historical facts, is
as fresh as. the passing events of the day. The power of
his patriarchal influence was felt in the late convention,
which was called to consider the expediency of amending
the state constitution, and which was composed of men
who represented all the interests of the community ; ju-
dicious farmers, intelligent mechanics, talented clergymen,
erudite lawyers, and learned judges. There the silver-
headed draftsman of the constitution they were called to
revise, seated on the right of the president, by a vote
of the convention, leaning on his cane, was listening
to every proposition, and watching the progress of refor-
mation. When I thus beheld him, who, for his signal
services to his country, had been honoured with its high-
est office, twenty years before, now in the simple dress of
a humble citizen, guarding with a parent's care, those
interests, rights, and liberties, which he had so much con-
tributed to establish, and which he, in the course of nature,
could but a few years more enjoy ; I felt appalled in his
presence, and wondered at the seeming temerity of those
who could propose alterations in the sacred instrument,
without his sanction. But, when I entered one morning,
the sage of fourscore years had risen to address the
astonished assembly in defence of the constitutional right
of the people to choose the executive council. His short
speech was delivered in a tremulous voice, with a slow
and emphatic manner. He uttered the axioms, only, of
political wisdom; and made a commanding nod at the
close of each sentence. The convention was motionless.
The first sound of his voice fixed those who were in the
act of crossing the hall to their positions, like statues.
The members near him seemed fastened to their seats ;
while those at a distance reached forward on the benches,
with their lips open, and their hands raised to their ears,
listening to every word. All eyes were intent on one
object, and at every pause, the whole assembly breathed
as it were with one inhalation. At the termination of this
address I heard the hum of approbation, and saw the
cheering smiles, the shaking of hands, and witnessed the
satisfaction which every one felt in being present at this
solemn scene. I saw the vote taken, and the whole conven-
tion, under the influence of its enthusiasm, decide against
its deliberate judgment, as its after proceedings shewed.
When I have seen all this, I must know the power of his
opinions, and the extent of his influence whose aid I re-
quest, with all that respect which is due to its possessor,
and that solemnity which the occasion demands. I do
not ask you for an exercise of eloquence like that I
witnessed. That cannot again be enjoyed. The time,
and place, and circumstances, are wanting. But I ap-
peal to the same strong recollections, the same clear
mind, and true tongue to tell me, whether the fram-
ers of our constitution and laws, did not consider the
provisions which they made for arming the whole body of
active citizens, and for organizing, officering, and dis-
ciplining them, as soldiers, as the surest safeguard of
their liberties ? I ask, whether those attach too much
importance to the institution, who, in the language of
the bill of rights, proposed by the Virginia convention,
consider " a well regulated militia, composed of the body
of the people, trained to arms, as the proper, natural, and
safe defence, of a free state?" Whether an officer, now
in commission, is inflated with vanity, or is governed by
the soundest good sense, when he says, in vindication of
the militia, of which he is an ornament, " it is a condi-
tion of our being, that we cannot obtain or enjoy any
thing without the use of appropriate means ; and, that the
militia is one of those, by which we enjoy national security
and individual freedom ?" Whether, in fact, an armed,
organized, officered, and disciplined militia, " composed of
the body of the people," is not essential to the mainte-
nance of a free commonwealth ?
The militia is an institution which unites, in itself, the
power effectually to preserve the public peace, the public
order, and the public liberty, without endangering either.
It is one of the great characteristics which distinguishes us.
There is not, and there never was, an institution, among
the nations of the earth, so well calculated, as this is, to
give to freemen a perfect consciousness of their liberty,
and of their capacity to preserve it. But the militia law,
alone will not create this feeling. It must depend on
the spirit with which the law is administered. In New
England, generally, such is its effect. New Hampshire
and Maine, particularly, are receiving the advantages
of an increased attention to the subject. As it regards
ourselves, if the inquiry be made, what are the leading
causes of the consideration in which Massachusetts is held
abroad, and among her sister states, it might be answered :
her commerce, which is constantly developing new sources
of profit ; her fisheries, which make hardy seamen, and
add to the national wealth ; her manufactures, which are
nearly equivalent to the supply of her domestic wants ;
her agriculture, which makes the most of the soil ; her
roads, bridges, canals, and internal improvements, which
enable her citizens to sell at the greatest price, and pur-
chase at the least expense ; her schools, which teach them
how to conduct their enterprises; her charitable. i
nstitu-
tions and hospitals, which keep the poor from suffering,
and restore the imbecile to active industry ; her religious
establishments, which elicit free inquiry, and govern by
their moral influence ; her colleges and university, which
enlarge the empire of the mind ; her wealth, the fruit of
her own industry; her laws, the result of long established
and steady habits ; and her militia, which maintains, pro-
tects, and preserves them all.
But the advantage w r e experience and the security we
enjoy, from the improved condition of the militia, in this
commonwealth, is productive of those emotions of pride,
and regret, which should never be mingled. Of pride, that
the whole has been accomplished by the unaided exer-
tions of the state authority ; and of regret, that the national
government, which has the chief power over the militia,
by intirely neglecting its cultivation, has retarded the ex-
tension of its benefits, in other states, and left the public
mind in such doubt of its utility, as to threaten even the
destruction of ours. It is no less singular than true, that
while the free institutions of our country, by permitting the
expression of those sentiments which arise from an un-
limited range of thought, have received continued advan-
tage and strength, in all other branches of administration,
the militia, alone, has seldom received the attentive con-
sideration of the national counsels. While the laws regu-
lating the judiciary, revenue, navigation, manufactures,
internal improvements, and the army and navy, have ever
been varied, and their condition meliorated, according to
the sentiments of the people, or the necessities of the go-
vernment, those relating to the militia, the main pillar of
our freedom, have remained unimproved, and the subject
has often been treated as a topic of electioneering
declamation, or of jocular reproach. It is true, that in
1808, a law was passed making a small annual allow-
ance for arming the soldiers ; but this will not make
an exception to the observation, as the militia was
probably more indebted to the embargo for this ap-
propriation, than to any enlarged design in congress for
the improvement of its general condition, or extended
views of the permanent utility of the institution. It would
have been fortunate for the militia if this inattention had
been confined to congress ; but those who know the vigi-
lance which has been so strikingly manifested in other
branches of authority, in the executive department, will
regret to learn, that even the system of infantry tac-
tics, which has been ordered to be observed in the army,
and which the law requires should consequently be ob-
served by the militia, has never officially been made
known to the state authorities. Those who feel most in-
terested, cannot but sincerely lament that one of the great-
est ill effects will probably arise from this omission. This
is to be apprehended from the distribution of mutilated
compilations, and what are called amended editions of the
United States System of Infantry Tactics, which have been
provided for the militia, in several of the states, the ten-
dency of which, will be to defeat the great design of con-
gress for establishing an uniform system of discipline, and
field exercise for the army and militia, throughout the
United States. But, if this system had been adapted
to the militia organization, and the books of instruc-
tion containing it distributed from the war department ;
had the artillery discipline been officially made known ;
had the plan for a similar construction of the gun carriages
used by the field artillery of the national forces and
of the several states, which gave the French such great
facility in recovering from disaster, been publicly re-
commended from the same source, whence the sugges-
tion was privately made ; had, in fact, that fertile mind,
which has so much distinguished itself, by its systema-
tic plans for the army operations, directed its attention
to the militia establishment, and introduced into that, also,
the amendments of which it is susceptible, such would
have been its rapid advancement, that its friends would
have had great reason to rejoice that it had not been left
for any future administration, having less talent in its war
department, to take up the great subject of militia im-
provement.
When, on almost every side, such listlessness is observ-
ed, I ought to doubt, perhaps, whether I have not attached
more importance to the institution than it deserves. This
consideration would have been sufficient to have reduc-
ed the sanguineness of my own views, if they had not
received the countenance of one, who, from his long
experience in the army of the revolution, and in the high-
cst civil and military departments of the state, I have been
led to consider, as the best living practical commentator
on the militia system. Fearing, that, if I have not already
tired you with the length of my communication, I should,
if I were to add those further illustrations which a full
investigation of the subject would require, I hasten to
conclude it with an extract from one of the governor's
late General Orders.
" The militia system," says he, " from its having been
long in operation, is now so well understood ; its benefit,
in times of peril, has so often been experienced ; its in-
fluence on society, in time of peace, so continually felt ;
and the order of its associations, all of which are subject
to the regulation of law ; the harmony and beauty of its
operations, from which so much gratification is derived on
days of public festivity ; its effects upon the manners and
morals of the people, in producing a love of order, and
habits of subordination, in teaching them principles of obe-
dience to the laws, and respect for the public authorities,
are now so universally admitted ;, and its accordance with
the spirit of our republican institutions, so generally ac
knowledged, that it is justly considered, at once, as the
pride, the security and the ornament of the state.
" The militia system is the safeguard of freedom ; and
with its destruction, the liberties of our country will
cease. It was established for the protection of the pro-
perty of the wealthy ; for the security of the liberties of
the free ; for the defence of our shores from invasion ; for
the support of the civil power $ for the security of the
state sovereignties, and for the maintenance of the national
independence. It is not from the officers and soldiers
alone, then, that the commander in chief expects support.
It is to the wise, the opulent, the influential, the patriotic
citizens of the state, who arc not enrolled, that he also
appeals ; asking their aid to give respectability to the mili-
tia establishment, and their assistance in equalizing its bur-
dens upon the different classes of the community, which
are as much interested in its support, as those which per-
form its labours. It is in the fulness of hope, he appeals to
them for their aid in such measures, as shall give stability
and dignity, and regularity to its operations. It is not for
himself alone, nor them ; No ! but for posterity and their
country's sake, he invokes them to rally round its stand-
ard, and always to consider the militia as the palladium of
their civil rights, and the shield of their dearest interests."
I have the honor to be, with the most sincere wishes
For your happiness,
And with the utmost respect,
Your most obedient
And very humble servant,
WILLIAM H. SUMNER.
HON. JOHN ADAMS.
Quincy, 19th May, 1823*
DEAR SIR,
I THANK you for the privilege of hearing read your man-
uscript dissertation concerning the militia. I scarcely
know how to express the satisfaction and delight I have
received from its perusal. It is so conformable to all my
opinions concerning it from my cradle, that it seemed to
be living my life over again. The delight of my child-
hood in the trainings, will never be obliterated from my
memory. I have seen the march of the militia of Massa-
chusetts to defend the town of Boston against the formi-
dable armada of the duke D'Anville. I have seen the
march of the same militia to Cambridge after the battle of
Lexington. I have seen the militia of Massachusetts on
Boston common under governor Strong, assembled to de-
fend us against the British armadas, and I never felt my
existence with more cordial delight than 1 did upon these
occasions. But I am in danger of running into a rhapsody
of enthusiasm.
You have proved it to be the most essential foundation
of national defence. The most plentiful nursery of sea-
men and soldiers, armies and navies. These American
states have owed their existence to the militia for more
than two hundred years. Neither schools, nor colleges,
nor town meetings have been more essential to the forma-
tion and character of the nation than the militia. You
have proved its importance in a civil, political, and moral
point of view. Improve its constitution by every prudent
means, but never destroy its universality. A select mili-
tia will soon become a standing army, or a corps of
Manchester yeomanry. I see with pride and delight that
you come forward with such patriotism, talents and pa-
tience of thinking and inquiry, in the service of your
country. I long to see your letter in print. Whenever
the militia comes to an end, or is despised or neglected,
I shall consider this union dissolved, and the liberties of
North America lost forever.
I am, dear sir, your friend,
Relation, and fa^oi L ^&t>
Humble servant,
JOHN ADAMS.
GENERAL WILLIAM H. SUMNER.
EXHIBIT 3
�Benedict Crowell, Assistant Secretary of War (1919). America's
Munitions, 1917-1918. Government Printing Office, Washington D.C.�
EXHIBIT 4
The Center of Military Studies, of the United States Army, series of
books of American Military History, and in Volume One �The United States
Army and the Forging of a Nation, 1775 � 1917�, Chapter 2, Page 30-32
http://www.history.army.mil/books/AMH-V1/index.htm
�Colonial Mil
itia
For fighting Indians, colonial governments were in no position to form
professional armies, even had the nature of Indian warfare lent itself
to such a practice. Instead they fell back on the ancient British
tradition of the militia. This tradition took on new vitality in America
at the same time it was declining in England, where, after Oliver
Cromwell�s time, most of the country�s battles were fought on the sea
and in foreign lands. The British government came to rely on its regular
army and navy just as other European states did, despite a deep
political tradition of opposition to a standing army. Each of the
thirteen colonies (except for Pennsylvania, where Quaker influence was
dominant) enacted laws providing for a compulsory militia organization
generally based on the principle of the Saxon fyrd that required every
able-bodied free male from sixteen to sixty to render military service.
Each member of the militia was obligated to appear for training at his
county or town seat a certain number of days each year, to provide
himself with weapons, and to hold himself in readiness for call in case
of Indian attack or other emergency.
Each colony maintained a separate militia establishment, and each
concentrated on the problems of protecting or extending its own
frontiers. Cooperation among the militias of the various colonies was
confined to specific expeditions in which two or more colonies had an
interest. The militia was by and large a local institution, administered
in county and town or township under the general militia laws of each
colony. It was closely integrated with the social and economic structure
of colonial society. Though the royal governors or colonial assemblies
appointed the general officers and the colonels who commanded militia
districts, the companies in each locality usually elected their own
officers. This practice seemingly put a premium on popularity rather
than wealth or ability, but rank in the militia generally corresponded
with social station in the community.
Each militiaman was expected to provide his own weapon�usually a
smoothbore musket�and ammunition, clothing, and food for a short
expedition, just as the British knight had been required to provide his
own horse, armor, and suitable weapons for feudal warfare. Local
authorities maintained reserve supplies of muskets to arm those too poor
to buy them and collected stores of ammunition and sometimes small
cannon that could be dragged along through the wilderness. For very long
campaigns, the colonial government had to take charge, the assembly
appropriating the money for supplies and designating the supply officers
or contractors to handle purchasing and distribution.
Although the militia was organized into units by county or township, it
hardly ever fought that way. Instead the local unit served as a training
and mobilization base from which individuals could be recruited for
active operations. When a particular area of a colony was threatened,
the colonial government would direct the local militia commander to call
out his men and the commander would mobilize as many as he could or as
he thought necessary, selecting the younger and more active men for
service. For expeditions into the Indian country, usually individuals
from many localities were chosen and formed into improvised units for
the occasion. Selection was generally voluntary, but local commanders
could be legally empowered to draft both men and property if necessary.
Drafted men were permitted the option of hiring substitutes, a practice
that favored the well-to-do. Volunteer, drafted man, and substitute, all
paid while on active duty, alike insisted on the militiaman�s
prerogative to serve only a short period and return to home and fireside
as quickly as possible.
As a part-time citizen army, the militia was naturally not a
well-disciplined, cohesive force comparable to the professional army of
the age. Criticism of the militia was frequent. Moreover, its
efficiency, even for Indian fighting, varied from colony to colony and
even from locality to locality within the same colony, depending on the
ability and determination of commanders and the presence or absence of
any threat. When engaged in eliminating an Indian threat to their own
community, militiamen might be counted on to make up in enthusiasm what
they lacked in discipline and formal training. When the Indian threat
was pushed westward, people along the eastern seaboard tended to relax.
Training days, one day a week in the early years of settlement, fell to
one a month or even one a year. Festivities rather than military
training increasingly became the main purpose of many of the gatherings,
and the efficiency of the militia in these regions declined accordingly.
In some towns and counties, however, the military tradition was kept
alive by volunteers who formed their own units, purchased distinctive
uniforms, and prepared themselves to respond in case of war or
emergency. These units became known as the volunteer militia and were
the predecessors of the National Guard of the United States. In
Pennsylvania, which lacked a militia law until 1755 and then passed one
that made militia service voluntary rather than compulsory, all units
were composed of volunteers.
One of the more unpleasant manifestations of the militia system in
America occurred in those colonies, most but by no means all in the
south, with a large slave population. Fears of slave uprising and the
rapidly growing imbalance between black and white populations in some
areas of the colonies led to the establishment of militia units focused
on detecting and defeating the smallest sign of trouble among the
African slave population. In South Carolina in 1739, almost one hundred
slaves organized themselves, seized weapons, and killed several white
colonists before being suppressed by hastily raised militia soldiers.
The resulting fear and legislative attempts to deal with the issue
ensured that a primary focus of an organized militia in South Carolina,
and later the rest of the southern colonies, was on internal security
against the slaves.
On the frontier, where Indian raids were a constant threat, training
days were frequent and militia had to be ready for instant action.
Except on the frontier, where proficiency in this sort of warfare was a
matter of survival, it is doubtful that colonial militia in general were
really adept in forest fighting. Training days were devoted not to the
techniques of fighting Indians but to learning the drill and motions
required on a European battlefield. When raids were to be conducted
against the Indians, often popularly elected officers selected
individual volunteers from the militia to serve for the duration of the
expedition. Thus the militia existed mostly as an internal defense force
and a pool of trained manpower for ad hoc colonial expeditions against
the Indians or other enemies, such as the nearby French Canadians.�
Pages 40-42
�The American Rifle
By the end of the French and Indian War, a new weapon had appeared on
the frontier in Pennsylvania and to the south, one far better suited to
guerrilla warfare than was the musket. This weapon would later become
renowned as the Kentucky rifle. The effects of rifling a gun barrel,
that is, of making spiral grooves that imparted a spinning effect to the
bullet, giving it greater range and accuracy, had been known for some
centuries in Germany and Switzerland. But the early rifles made there
were too heavy and slow to load to be of military use. The Germans who
settled in Pennsylvania developed, around 1750, a much lighter model,
far easier and faster to load. They used a bullet smaller than the bore
and a greased patch to keep the fit tight. This early American rifle
could, in proper hands, hit a target the size of a man�s head at 200 yards.
Despite its superior range and accuracy, the rifle was to undergo almost
a hundred years of development before it would supplant the musket as
the standard infantry weapon. At first, each individual piece was
handmade and each required a custom-made bullet mold. The standard
bayonet would fit none of them. The rifle was effective only in the
hands of an expert trained in its use. The rate of fire was only about
one-third that of the musket; and therefore, without bayonet, the rifle
could hardly be used by troops in the line. For the guerrilla tactics of
the frontier, however, where men did not fight in line but from behind
trees, bushes, and rocks, it was clearly a superior weapon. Like the
tactics of the American forest, it would have its place in any future
war fought in America.�
Pages 114 � 116
�The Militia
Time and again Washington pointed out that the only alternative to a
large standing army was an effective militia, yet his efforts and those
of Knox and Hamilton to make the militia more effective by applying
federal regulation failed. Congress passed the basic militia law in May
1792. It called for the enrollment of "every able-bodied white male
citizen" between eighteen and forty-five and the organization of the
militia into divisions, brigades, regiments, battalions, and companies
by the individual states, each militiaman providing his own "arms,
munitions, and other accouterments." The law that survived the
legislative process bore little resemblance to the one Washington and
Knox had proposed. It left compliance with its provisions up to the
states and in the end did little more than give federal recognition to
the colonial militia organization that had plagued Washington during the
Revolution. Despite these limitations, the act did preserve the idea of
a citizen soldiery, a concept of profound importance to the future of
the country; and it also provided for the creation of special volunteer
units to supplement the obligatory mass system. The volunteers,
organized into companies, met regularly for military training under e
lected officers. With antecedents in the organized military associations
of the colonial era, this volunteer force later became the National Guard.
Training and discipline were the keys to an effective militia, but
despite the act of 1792 the militia was to be neither disciplined nor
well trained. When permitted to fight in less standardized fashion,
either from behind fortifications or as irregulars, militiamen could
give a good account of themselves. But only highly trained troops could
be expected to successfully employ the complicated, formal linear
tactics of the day. Strictly interpreting the constitutional provision
that reserved to the states the authority to train the militia, Congress
left the extent and thoroughness of training completely to the states
and merely prescribed Steuben�s system of discipline and field exercises
as the rules to be followed.
The limitations placed on the length of tours of duty and the
circumstances for which the militia might be called into federal service
further impaired its usefulness. No militiamen could be compelled to
serve more than three months in any one year, nor could the President
order the militia to duty outside the United States. The effect of these
limitations would be readily apparent during the War of 1812.
The President first exercised his authority to employ militia for
suppressing insurrection and executing the laws of Congress in 1794,
when he sent a large force of militia under Maj. Gen. Henry Lee into
western Pennsylvania during the Whiskey Rebellion. Lee encountered no
resistance. As a show of force, the demonstration was impressive; as an
indication of the military value of the militia in an emergency, it
was inconclusive.�
EXHIBIT 5
�The Constitution of the United States � Militia Clause,� United States
Congress � 1st Congress
�Article 1 - The Legislative Branch
Section 8 - Powers of Congress
The Congress shall have Power To lay and collect Taxes, Duties, Imposts
and Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States; but all Duties, Imposts and
Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the
subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix
the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas,
and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use
shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval
Forces;
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;
To exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession of
particular States, and the acceptance of Congress, become the Seat of
the Government of the United States, and to exercise like Authority over
all Places purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any
Department or Officer thereof. �
EXHIBIT 6
�Second Amendment to the Constitution of the United States,� United
States Congress � 2nd Congress:
�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.�
EXHIBIT 7
�Militia Acts of 1792, First Militia Act,� passed May 2, 1792
Militia Act of 1792,
Second Congress, Session I. Chapter XXVIII
Passed May 2, 1792, providing for the authority of the President to call
out the Militia
Section 1. Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That whenever the
United States shall be invaded, or be in imminent danger of invasion
from any foreign nation or Indian tribe, it shall be lawful for the
President of the United States, to call forth such number of the militia
of the state or states most convenient to the place of danger or scene
of action as he may judge necessary to repel such invasion, and to issue
his orders for that purpose, to such officer or officers of the militia
as he shall think proper; and in case of an insurrection in any state,
against the government thereof, it shall be lawful for the President of
the United States, on application of the legislature of such state, or
of the executive (when the legislature cannot be convened) to call forth
such number of the militia of any other state or states, as may be
applied for, or as he may judge sufficient to suppress such insurrection.
Sec. 2. And be it further enacted, That whenever the laws of the United
States shall be opposed or the execution thereof obstructed, in any
state, by combinations too powerful to be suppressed by the ordinary
course of judicial proceedings, or by the powers vested in the marshals
by this act, the same being notified to the President of the United
States, by an associate justice or the district judge, it shall be
lawful for the President of the United States to call forth the militia
of such state to suppress such combinations, and to cause the laws to be
duly executed. And if the militia of a state, where such combinations
may happen, shall refuse, or be insufficient to suppress the same, it
shall be lawful for the President, if the legislature of the United
States be not in session, to call forth and employ such numbers of the
militia of any other state or states most convenient thereto, as may be
necessary, and the use of militia, so to be called forth, may be
continued, if necessary, until the expiration of thirty days after the
commencement of the ensuing session.
Sec. 3. Provided always, and be it further enacted, That whenever it may
be necessary, in the judgment of the President, to use the military
force hereby directed to be called forth, the President shall forthwith,
and previous thereto, by proclamation, command such insurgents to
disperse, and retire peaceably to their respective abodes, within a
limited time.
Sec. 4. And be it further enacted, That the militia employed in the
service of the United States, shall receive the same pay and allowances,
as the troops of the United States, who may be in service at the same
time, or who were last in service, and shall be subject to the same
rules and articles of war: And that no officer, non-commissioned officer
or private of the militia shall be compelled to serve more than three
months in any one year, nor more than in due rotation with every other
able-bodied man of the same rank in the battalion to which be belongs.
Sec. 5. And be it further enacted, That every officer, non-commissioned
officer or private of the militia, who shall fail to obey the orders of
the President of the United States in any of the cases before recited,
shall forfeit a sum not exceeding one year's pay, and not less than one
month's pay, to be determined and adjudged by a court martial; and such
officers shall, moreover, be liable to be cashiered by sentence of a
court martial: and such non-commissioned officers and privates shall be
liable to be imprisoned by the like sentence, or failure of payment of
the fines adjudged against them, for the space of one calendar month for
every five dollars of such fine.
Sec. 6. And be it further enacted, That court martial for the trial of
militia be composed of militia officers only.
Sec. 7. And be it further enacted, That all fines to be assessed, as
aforesaid, shall be certified by the presiding officer of the court
martial before whom the same shall be assessed, to the marshal of the
district, in which the delinquent shall reside, or to one of his
deputies; and also the supervisor of the revenue of the same district,
who shall record the said certificate in a book to be kept for that
purpose. The said marshal or his deputy shall forthwith proceed to levy
the said fines with costs, by distress and sale of the goods and
chattels of the delinquent, which costs and manner of proceeding, with
respect to the sale of the goods distrained, shall be agreeable to the
laws of the state, in which the same shall be, in other cases of
distress; and where any non-commissioned officer or private shall be
adjudged to suffer imprisonment, there being no goods or chattels to be
found, whereof to levy the said fines, the marshal of the district or
his deputy may commit such delinquent to gaol, during the term, for
which he shall be so adjudged to im
prisonment, or until the fine shall be paid, in the same manner as other
persons condemned to fine and imprisonment at the suit of the United
States, may be committed.
Sec. 8. And be it further enacted, That the marshals and their deputies
shall pay all such fines by them levied to the supervisor of the
revenue, in the district in which they are collected, within two months
after they shall have received the same, deducting therefrom five per
centum, as a compensation for their trouble; and in case of failure, the
same shall be recoverable by action of debt or information in any court
of the United States, of the district, in which such fines shall be
levied, having cognizance therefor, to be sued for, prosecuted and
recovered, in the name of the supervisor of the district, with interest
and costs.
Sec. 9. And be it further enacted, That the marshals of the several
districts and deputies, shall have the same powers in executing the laws
of the United States, as sheriffs, and their deputies in the several
states have by law, in executing the laws of their respective states.
Sec. 10. And be it further enacted, That this act shall continue and be
in force, for and during the term of two years, and from thence to the
end of the next session of Congress thereafter, and no longer.
APPROVED, May 2, 1792.
EXHIBIT 8
�Militia Acts of 1792, Second Militia Act,� passed May 8, 1792.
The Militia Act of 1792, Passed May 8, 1792, providing federal standards
for the organization of the Militia.
An ACT more effectually to provide for the National Defence, by
establishing an Uniform Militia throughout the United States.
I. Be it enacted by the Senate and House of Representatives of the
United States of America, in Congress assembled, That each and every
free able-bodied white male citizen of the respective States, resident
therein, who is or shall be of age of eighteen years, and under the age
of forty-five years (except as is herein after excepted) shall severally
and respectively be enrolled in the militia, by the Captain or
Commanding Officer of the company, within whose bounds such citizen
shall reside, and that within twelve months after the passing of this
Act. And it shall at all time hereafter be the duty of every such
Captain or Commanding Officer of a company, to enroll every such citizen
as aforesaid, and also those who shall, from time to time, arrive at the
age of 18 years, or being at the age of 18 years, and under the age of
45 years (except as before excepted) shall come to reside within his
bounds; and shall without delay notify such citizen of the said
enrollment, by the proper non-commissioned Officer of the company, by
whom such notice may be proved. That every citizen, so enrolled and
notified, shall, within six months thereafter, provide himself with a
good musket or firelock, a sufficient bayonet and belt, two spare
flints, and a knapsack, a pouch, with a box therein, to contain not less
than twenty four cartridges, suited to the bore of his musket or
firelock, each cartridge to contain a proper quantity of powder and
ball; or with a good rifle, knapsack, shot-pouch, and powder-horn,
twenty balls suited to the bore of his rifle, and a quarter of a pound
of powder; and shall appear so armed, accoutred and provided, when
called out to exercise or into service, except, that when called out on
company days to exercise only, he may appear without a knapsack. That
the commissioned Officers shall severally be armed with a sword or
hanger, and espontoon; and that from and after five years from the
passing of this Act, all muskets from arming the militia as is herein
required, shall be of bores sufficient for balls of the eighteenth part
of a pound; and every citizen so enrolled, and providing himself with
the arms, ammunition and accoutrements, required as aforesaid, shall
hold the same exempted from all suits, distresses, executions or sales,
for debt or for the payment of taxes.
II. And be it further enacted, That the Vice-President of the United
States, the Officers, judicial and executives, of the government of the
United States; the members of both houses of Congress, and their
respective officers; all custom house officers, with the clerks; all
post officers, and stage-drivers who are employed in the care and
conveyance of the mail of the post office of the United States; all
Ferrymen employed at any ferry on the post road; all inspectors of
exports; all pilots, all mariners actually employed in the sea service
of any citizen or merchant within the United States; and all persons who
now are or may be hereafter exempted by the laws of the respective
states, shall be and are hereby exempted from militia duty,
notwithstanding their being above the age of eighteen and under the age
of forty-five years.
III. And be it further enacted, That within one year after the passing
of the Act, the militia of the respective states shall be arranged into
divisions, brigades, regiments, battalions, and companies, as the
legislature of each state shall direct; and each division, brigade, and
regiment, shall be numbered at the formation thereof; and a record made
of such numbers of the Adjutant-General's office in the state; and when
in the field, or in serviced in the state, such division, brigade, and
regiment shall, respectively, take rank according to their numbers,
reckoning the first and lowest number highest in rank. That if the same
be convenient, each brigade shall consist of four regiments; each
regiment or two battalions; each battalion of five companies; each
company of sixty-four privates. That the said militia shall be officered
by the respective states, as follows: To each division on Major-General,
with two Aids-de-camp, with the rank of major; to each brigade, one
brigadier-major, with the rank of a major; to each company, one captain,
one lieutenant, one ensign, four serjeants, four corporals, one drummer,
and one fifer and bugler. That there shall be a regimental staff, to
consist of one adjutant, and one quartermaster, to rank as lieutenants;
one paymaster; one surgeon, and one surgeon's mate; one serjeant-major;
one drum- major, and one fife-major.
IV. And be it further enacted, That out of the militia enrolled as is
herein directed, there shall be formed for each battalion, as least one
company of grenadiers, light infantry or riflemen; and that each
division there shall be, at least, one company of artillery, and one
troop of horse: There shall be to each company of artillery, one
captain, two lieutenants, four serjeants, four corporals, six gunners,
six bombardiers, one drummer, and one fifer. The officers to be armed
with a sword or hanger, a fusee, bayonet and belt, with a cartridge box
to contain twelve cartridges; and each private of matoss shall furnish
themselves with good horses of at least fourteen hands and an half high,
and to be armed with a sword and pair of pistols, the holsters of which
to be covered with bearskin caps. Each dragoon to furnish himself with a
serviceable horse, at least fourteen hands and an half high, a good
saddle, bridle, mail-pillion and valise, holster, and a best plate and
crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a
cartouchbox to contain twelve cartridges for pistols. That each company
of artillery and troop of house shall be formed of volunteers from the
brigade, at the discretion of the Commander in Chief of the State, not
exceeding one company of each to a regiment, nor more in number than one
eleventh part of the infantry, and shall be uniformly clothed in
raiments, to be furnished at their expense, the colour and fashion to be
determined by the Brigadier commanding the brigade to which they belong.
V. And be it further enacted, That each battalion and regiment shall be
provided with the state and regimental colours by the Field-Officers,
and each company with a drum and fife or bugle-horn, by the commissioned
officers of the company, in such manner as the legislature of the
respective States shall direct.
VI. And be it further enacted, That there shall be an adjutant general
appointed in each state, whose duty it shall be to distribute all orders
for the Commander in Chief of the State to the several corps; to attend
all publick reviews, when the Commander in Chief of the State shall
review the militia, or any part thereof; to obey all orders from him
relative to carrying into execution, and perfecting, the system of
military discipline established by this Act; to furnish blank forms of
different returns that may be required; and to explain the principles of
which they should be made; to receive from the several officers of the
different corps throughout the state, returns of the militia under their
command, reporting the actual situation of their arms, accoutrements,
and ammunition, their delinquencies, and every other thing which relates
to the general advancement of good order and discipline: All which, the
several officers of the division, brigades, regiments, and battalions
are hereby required to make in the usual manner, so that the said
adjutant general may be duly furnished therewith: From all which returns
be shall make proper abstracts, and by the same annually before the
Commander in Chief of the State.
VII. And be it further enacted, That the rules of discipline, approved
and established by Congress, in their resolution of the twenty-ninth of
March, 1779, shall be the rules of discipline so be observed by the
militia throughout the United States, except such deviations from the
said rules, as may be rendered necessary by the requisitions of the Act,
or by some other unavoidable circumstances. It shall be the duty of the
Commanding Officer as every muster, whether by battalion, regiment, or
single company, to cause the militia to be exercised and trained,
agreeably to the said rules of said discipline.
VIII. And be it further enacted, That all commis
sioned officers shall take rank according to the date of their
commissions; and when two of the same grade bear an equal date, then
their rank to be determined by lots, to be drawn by them before the
Commanding officers of the brigade, regiment, battalion, company or
detachment.
IX. And be it further enacted That if any person whether officer or
solder, belonging to the militia of any state, and called out into the
service of the United States, be wounded or disabled, while in actual
service, he shall be taken care of an provided for at the publick expense.
X. And be it further enacted, That it shall be the duty of the brigade
inspector, to attend the regimental and battalion meeting of the militia
composing their several brigades, during the time of their being under
arms, to inspect their arms, ammunition and accoutrements; superintend
their exercise and maneuvres and introduce the system of military
discipline before described, throughout the brigade, agreeable to law,
and such orders as they shall from time to time receive from the
commander in Chief of the State; to make returns to the adjutant general
of the state at least once in every year, of the militia of the brigade
to which he belongs, reporting therein the actual situation of the arms,
accoutrement, and ammunition, of the several corps, and every other
thing which, in his judgment, may relate to their government and general
advancement of good order and military disciple; an adjutant general
shall make a return of all militia of the state, to the Commander in
Chief of the said state, and a duplicate of the same to the president of
the United States.
And whereas sundry corps of artillery, cavalry and infantry now exist in
several of the said states, which by the laws, customs, or usages
thereof, have not been incorporated with, or subject to the general
regulation of the militia.
XI. Be it enacted, That such corps retain their accustomed privileges
subject, nevertheless, to all other duties required by this Act, in like
manner with the other militias.
EXHIBIT 9
�Militia Act of 1795,� passed February 28, 1795
[Note: Act of February 28, 1795, made small revisions in Sections 2, 4,
5, and 10 of Act of May 2, 1792. The 1795 act was the authority for
ruling in Houston v. Moore, 1820. Other revisions were enacted April 18,
1814]
The 1795 Act For Calling Forth The Militia
An Act to provide for calling forth the militia to execute the laws of
the Union, suppress insurrections, and repel invasions; and to repeal
the act now in force for those purposes, 28 February 1795.
That whenever the United States shall be invaded, or be in imminent
danger of invasion, from any foreign nation or Indian tribe, it shall be
lawful for the President of the United States to call forth such number
of the militia of the state or states, most convenient to the place of
danger, or scene of action, as he may judge necessary to repel such
invasion, and to issue his orders, for that purpose, to such officer or
officers of the militia as he shall think proper. And in case of an
insurrection in any state, against the government thereof, it shall be
lawful for the President of the United States, on application of the
legislature of such state, or of the Executive, (when the legislature
cannot be convened,) to call forth such number of the militia of any
other state or states, as may be applied for, as he may judge sufficient
to suppress such insurrection.
SEC. 2. That whenever the laws of the United States shall be opposed, or
the execution thereof obstructed, in any state, by combinations too
powerful to be suppressed by the ordinary course of judicial
proceedings, or by the powers vested in the marshals by this act, it
shall be lawful for the President of the United States to call forth the
militia of such state, or of any other state or states, as may be
necessary to suppress such combinations, and to cause the laws to be
duly executed; and the use of militia so to be called forth may be
continued, if necessary, until the expiration of thirty days after the
commencement of the then next session of Congress.
SEC. 3. That whenever it may be necessary, in the judgment of the
President, to use the military force hereby directed to be called forth,
the President shall forthwith, by proclamation, command such insurgents
to disperse, and retire peaceably to their respective abode, within a
limited time.
SEC. 4. That the militia employed in the service of the United States
shall be subject to the same rules and articles of war as the troops of
the United States: and that no officer, non-commissioned officer, or
private, of the militia, shall be compelled to serve more than three
months after his arrival at the place of rendezvous, in any one year,
nor more than in due rotation with every other able-bodied man of the
same rank in the battalion to which he belongs.
SEC. 5. That every officer, non-commissioned officer, or private, of the
militia, who shall fail to obey the orders of the President of the
United States, in any of the cases before recited, shall forfeit a sum
not exceeding one year's pay, and not less than one month's pay, to be
determined and adjudged by a court-martial; and such officer shall,
moreover, be liable to be cashiered by sentence of a court-martial, and
be incapacitated from holding a commission in the militia, for a term
not exceeding twelve months, at the discretion of the said court: and
such non-commissioned officers and privates shall be liable to be
imprisoned, by a like sentence, on failure of the payment of fines
adjudged against them, for one calendar month, for every five dollars of
such fine.
SEC. 6. That courts-martial for the trial of militia, shall be composed
of militia officers only.
SEC. 7. That all fines to be assessed, as aforesaid, shall be certified
by the presiding officer of the court-martial before whom the same shall
be assessed, to the marshal of the district in which the delinquent
shall reside, or to one of his deputies and also to the supervisor of
the revenue of the same district, who shall record the said certificate
in a book to be kept for that purpose. The said marshal, or his deputy,
shall forthwith proceed to levy the said fines, with costs, by distress
and sale of the goods and chattels of the delinquent; which costs, and
the manner of proceeding, with respect to the sale of the goods
distrained, shall be agreeable to the laws of the state in which the
same shall be, in other cases of distress. And where any
non-commissioned officer or private shall be adjudged to suffer
imprisonment, there being no goods or chattels to be found whereof to
levy the said fines, the marshal of the district, or his deputy, may
commit such delinquent to jail, during the term for which he shall be so
adjudged to imprisonment, or until the fine shall be paid, in the same
manner as other persons condemned to fine and imprisonment at the suit
of the United States may be committed.
SEC. 8. That the marshals and their deputies shall pay all such fines by
them levied, to the supervisor of the revenue in the district in which
they are collected, within two months after they shall have received the
same, deducting therefrom five per centum as a compensation for their
trouble; and in case of failure, the same shall be recoverable by action
of debt or information, in any court of the United States, of the
district in which such fines shall be levied, having cognizance thereof,
to be sued for, prosecuted, and recovered, in the name of the supervisor
of the district, with interest and costs.
SEC. 9. That the marshals of the several districts, and their deputies,
shall have the same powers, in executing the laws of the United States,
as sheriffs, and their deputies, in the several states, have by law in
executing the laws of the respective states.
SEC. 10. That the act entitled "An act to provide for calling forth the
militia to execute the laws of the Union, suppress insurrections, and
repel invasions;" passed the 2d day of May, 1792, shall be, and the same
is hereby, repealed.
[Approved, February 28, 1795.]
EXHIBIT 10
Militia Act of 1808, April 23, 1808, �An Act Making Provision for Arming
and Equipping the Whole Body of the Militia of the United States�
EXHIBIT 11
Militia Act of 1862, (12 Stat. 597, enacted July 17, 1862), which
allowed African-Americans to serve in the militias of the United States.
The Militia Act of 1862
CHAP. CCI.�An Act to amend the Act calling forth the Militia to execute
the Laws of the Union, suppress Insurrections, and repel Invasions,
approved February twenty-eight, seventeen hundred and ninety-five, and
the Acts amendatory thereof, and for other Purposes.
. . . .
SEC. 12. And be it further enacted, That the President be, and he is
hereby, authorized to receive into the service of the United States, for
the purpose of constructing intrenchments, or performing camp service or
any other labor, or any military or naval service for which they may be
found competent, persons of African descent, and such persons shall be
enrolled and organized under such regulations, not inconsistent with the
Constitution and laws, as the President may prescribe.
SEC. 13. And be it further enacted, That when any man or boy of African
descent, who by the laws of any State shall owe service or labor to any
person who, during the present rebellion, has levied war or has borne
arms against the United States, or adhered to their enemies by giving
them aid and comfort, shall render any such service as is provided for
in this act, he, his mother and his wife and children, shall forever
thereafter be free, any law, usage, or custom whatsoever to the contrary
notwithstanding: Provided, That the mother, wife and children of such
man or boy of African descent shall not be made free by the operation of
this act except where such mother, wife or children owe serv
ice or labor to some person who, during the present rebellion, has borne
arms against the United States or adhered to their enemies by giving
them aid and comfort.
SEC. 14. And be it further enacted, That the expenses incurred to carry
this act into effect shall be paid out of the general appropriation for
the army and volunteers.
SEC. 15. And be it further enacted, That all persons who have been or
shall be hereafter enrolled in the service of the United States under
this act shall receive the pay and rations now allowed by law to
soldiers, according to their respective grades: Provided, That persons
of African descent, who under this law shall be employed, shall receive
ten dollars per month and one ration, three dollars of which monthly pay
may be in clothing.
APPROVED, July 17, 1862.
EXHIBIT 12
From the advisory opinion of the Massachusetts Supreme Court, Opinions
of the Justices 80 Massachusett 614, 80 Gray 614.
The opinion says that states cannot change the membership of the militia
so as to let blacks serve in the militia. It also provides an excellent
legal history of the militia from colonial times to the eve of the Civil
War, as seen by non-historians in 1859.
Many of the issues raised about the historical and modern day status of
the militia are discussed. For example, this Court clearly viewed that
there was only one institution of the militia, that the militia had
always acted under government control, and it discusses (yet again) the
meaning of the 'provide for the organizing, arming and disciplining'
clause of the Constitution and how that clause allows the federal
government to say that members of the militia are between 18 and 45
years of age and not 20 and 50 years of age.
"Interrogatories [Questions] Propounded by order of the Governor and
Council to the Supreme Judicial Court:
"Whether the Legislature of this Commonwealth can constitutionally
provide for the enrollment in the militia of any persons other than
those enumerated in the Act of Congress, approved May 8, 1792, entitled,
'An Act more effectually to provide for the national defence, by
establishing an uniform militia throughout the United States'?
"Whether the aforesaid Act of Congress, as to all matters therein
provided for, and except as amended by subsequent Acts, has such force
in this Commonwealth, independently of or notwithstanding any State
legislation, that all officers under the State government, civil and
military, are bound by its provisions? ...
"We are first, as preliminary to any direct answer to the inquisitions,
to consider what the militia was, as understood in the Constitution and
laws, both of this commonwealth [Massachusetts] and of the United
States. It was an institution, not only theoretically known, but
practically adopted and carried into effect, in all the colonies and
provinces before the Revolution, and even before the formation of a
congress for any purpose. The utility and capabilities of this
institution for military purposes had been put to a severe test by the
events of the Revolution, and were well understood before either of
these constitutions was adopted.
"Prior to the Revolution, the establishment and control of this
institution was within the jurisdiction of the respective colonial and
provincial governments, because these were the only local governments,
acting directly upon the rights and interests of the inhabitants, within
their respective territorial limits. It was constituted by designating,
setting apart, and putting in military array, under suitable military
officers, all the able-bodied male inhabitants of the province, with
certain specified exceptions, and was held in readiness upon certain
exigencies, and in the manner provided by law, to act under military
orders as a military armed force. It was the constitution of a citizen
soldiery, in contradistinction to a regular or standing army. Such
having been the jurisdiction of the several provincial governments, it
naturally devolved upon the respective state governments after the
Declaration of Independence, and during the early years of the
revolutionary war. During that period, all were acting under the
articles of confederation, which was rather a league between the states
for mutual defence, than a government acting directly upon the people of
these states.
[The Court discusses the adoption of the U.S. Constitution and its
creation of two level of governments and then turns to discuss the power
over the militia under the Constitution.]
"...The establishment of a militia was manifestly intended to be
effected by arranging the ablebodied men in each and all the states in
military array, arming and placing then under suitable officers, but
without forming them into a regular standing army, to be ready as
exigency should require, to defend and protect the rights of all,
whether placed under the administration of the local [state] or general
[federal] government, to be called out by either in the manner and for
the purposes determined by the Constitution and laws of either. It was
one and the same militia, for both purposes, under one uniform
organization and discipline, and to be commanded by the same officers.
Were it otherwise, were the general and the state governments to have
their own militia, the results would have been that there would be,
within the bosom of each state, a large embodied military force, not by
its organization amenable to the laws or subject to the orders of the
state government; and also a similar force, one which the general
government would have no right to call for aid, to repel invasion,
suppress insurrection, or execute the laws; a state of things, not only
rendering each to a great extent inefficient and powerless, but also
entirely destructive of that harmony and union which were intended to
characterize the combined actions of both governments. We find therefore
that the functions of both are called into activity, in constituting
this military force and carrying it into practical operation.
"The Constitution of the United States having charged the general
government with the administration of the foreign relations of the whole
Union, and the military defence of the whole, provides, [article 1,
section 8) 'That Congress shall have the power to provide for calling
forth the militia to execute the laws of the Union, suppress
insurrection, 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.'
"Organizing' obviously includes the power of determining who shall
compose the body known as the militia. The general principle is, that a
militia shall consist of the able-bodied male citizens. But this
description is too vague and indefinite to be laid down as a practical
rule; it requires a provision of positive law to ascertain the exact
age, which shall be deemed neither too young nor too old to come within
the description. One body of legislators might think the suitable ages
to be from 18 to 19, others from 16 to 30 or 40, others from 20 to 50.
Here the power is given to the general government to fix the age
precisely, and thereby to put an end to doubt and uncertainty; and the
power to determine who shall compose the militia, when executed, equally
determines who shall not be embraced in it, because all not selected are
necessarily excluded.
"The question upon the construction of this provision of the
Constitution is, whether this power to determine who shall compose the
militia is exclusive. And we are of opinion that it is. A power when
vested in the general government is not only exclusive when it is so
declared in terms, or when the State is prohibited from the exercise of
the like power, but also when the exercise of the same power by the
State is superceded, and necessarily impracticable and impossible after
its exercise by the general government. For instance, when the general
government have exercised their power to establish a uniform system of
bankruptcy, that is, laws for sequestering and administering the estate
of a living insolvent debtor; when one set of commissioners and
assignees of such estate have taken possession of property, with power
to sell and dispose of it, and distribute the proceeds, another set of
officers, under another law, cannot take and dispose of the same
property. The one power is necessarily repugnant to the other; if one is
paramount, the other is void. We think the present case is similar. The
general government having authority to determine who all and who may not
compose the militia, and having so determined the State government has
no legal authority to prescribe a different enrollment.
"This power was carried into execution by the act of Congress of May,
1792, being an 'Act more effectually to provide for the national
defence, by establishing an uniform militia throughout the United
States'. This act specially directs who shall be, and by necessary
implication, who may not be enrolled in the militia. This is
strengthened by a provision, that each State may by law exempt persons
embraced in the class for enrollment, according as the peculiar form and
particular organization of its separate government may require; but
there is no such provision for adding to the class to be enrolled.
"We are therefore of opinion that the Legislature of the Commonwealth
cannot constitutionally provide for the enrollment in the militia of any
persons other than those enumerated in the act of Congress of May, 1792,
hereinbefore cited.
"We do not intend, by the foregoing opinion, to exclude the existence of
a power in the State, to provide by law for arming and equipping other
bodies of men for special service of kee
ping guard, and making defence, under special exigencies or otherwise,
in any case not coming within the prohibition of that clause in the
Constitution, article 1, section 10, which withholds from the State the
power 'to keep troops;' but such bodies, however armed or organized
could not be deemed any part of 'The Militia,' as contemplated and
understood in the Constitution and laws of Massachusetts and of the
United States, and, as we understand, in the question propounded for our
consideration.
"Nor is this question, in our opinion, affected by the article 2 of the
Amendments of the Constitution of the following tenor: '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.'
"This, like similar provisions in our own declaration of rights,
declares a great general right, leaving it for other more specific
constitutional provision or to legislation to provide for the
preservation and practical security of such right, and for influencing
and governing the judgment and conscience of all legislators and
magistrates, who are thus required to recognize and respect such rights.
"In answer to the second question proposed, we are of opinion that the
Act of Congress above cited, as to all matters therein provided for,
except so far as it may have been changed by independent acts, has such
force in this Commonwealth, independently of and notwithstanding any
State legislation, that all officers under the State government, civil
and military, are bound by its provisions.
(signed)
Lemuel Shaw
Theron Metcalf
George T. Bigelow
Pliny Merrick
Ebenezer R. Hoar
Boston, December 23, 1859�
EXHIBIT 13
�Efficiency of Militia Bill H.R. 11654, of June 28, 1902�, also known as
the �Dick Act� and as the �Militia Act of 1903 (32 Stat. 775)�
January 21, 1903.
[Public, No. 83.]
[CHAPTER. 186]
AN ACT
To promote the efficiency of the militia, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That the militia shall consist
of every able-bodied male citizen of the respective States, Territories,
and the District of Columbia, and every able-bodied male of foreign
birth who has declared his intention to become a citizen, who is more
than eighteen and less than forty-five years of age, and shall be
divided into two classes�the organized militia, to be known as the
National Guard of the State, Territory, or District of Columbia, or by
such other designations as may be given them by the laws of the
respective States or Territories, and the remainder to be known as the
Reserve Militia.
Sec. 2. That the Vice-President of the United States, the officers,
judicial and executive, of the Government of the United States, the
members and officers of each House of Congress, persons in the military
or naval service of the United States, all custom-house officers, with
their clerks, postmasters and persons employed by the United States in
the transmission of the mail, ferrymen employed at any ferry on a
post-road, artificers and workmen employed in the armories and arsenals
of the United States, pilots, manners actually employed in the sea
service of any citizen or merchant within the United States, and all
persons who are exempted by the laws of the respective States or
Territories shall be exempted from militia duty, without regard to age:
Provided, That nothing in this Act shall be construed to require or
compel any member of any well-recognized religious sect or organization
at present organized and existing whose creed forbids its members to
participate in war in any form, and whose religious convictions are
against war or participation therein, in accordance with the creed of
said religious organization, to serve in the militia or any other armed
or volunteer force under the jurisdiction and authority of the United
States.
Sec. 3. That the regularly enlisted, organized, and uniformed active
militia in the several States and Territories and the District of
Columbia who have heretofore participated or shall hereafter participate
in the apportionment of the annual appropriation provided by section
sixteen hundred and sixty-one of the Revised Statutes of the United
States, as amended, whether known and designated as National Guard,
militia, or otherwise, shall constitute the organized militia. The
organization, armament, and discipline of the organized militia in the
several States and Territories and in the District of Columbia shall be
the same as that which is now or may hereafter be prescribed for the
Regular and Volunteer-Armies of the United States, within five years
from the date of the approval of this Act: Provided, That the President
of the United States, in time of peace, may by order fix the minimum
number of enlisted men in each company, troop, battery, signal corps,
engineer corps, and hospital corps: And provided further, That any corps
of artillery, cavalry and infantry existing in any of the States at the
passage of the Act of May eighth, seventeen hundred and ninety-two,
which, by the laws, customs or usages of the said States have been in
continuous existence since the passage of said Act under its provisions
and under the provisions of Section two hundred and thirty-two and
Sections sixteen hundred and twenty-five to sixteen hundred and sixty,
both inclusive, of Title sixteen of the Revised Statutes of the United
States relating to the Militia, shall be allowed to retain their
accustomed privileges, subject, nevertheless, to all other duties
required by law in like manner as the other Militia.
Sec. 4. That whenever the United States is invaded, or in danger of
invasion from any foreign nation, or of rebellion against the authority
of the Government of the United States, or the President is unable, with
the other forces at his command, to execute the laws of the Union in any
part thereof, it shall be lawful for the President to call forth, for a
period not exceeding nine months, such number of the militia of the
State or of the States or Territories or of the District of Columbia as
he may deem necessary to repel such invasion, suppress such rebellion,
or to enable him to execute such laws, and to issue his orders for that
purpose to such officers of the militia as he may think proper.
Sec. 5. That whenever the President calls forth the militia of any State
or Territory or of the District of Columbia to be employed in the
service of the United States, he may specify in his call the period for
which, such service is required, not exceeding nine months, and the
militia so called shall continue to serve during the term so specified,
unless sooner discharged by order of the President.
Sec. 6. That when the militia of more than one State is called into the
actual service of the United States by the President he may, in his
discretion, apportion them among such States or Territories or to the
District of Columbia according to representative population.
Sec. 7. That every officer and enlisted man of the militia who shall be
called forth in the manner hereinbefore prescribed and shall be found
fit for military service shall be mustered or accepted into the United
States service by a duly authorized mustering officer of the United
States: Provided, however, That any officer or enlisted man of the
militia who shall refuse or neglect to present himself to such mustering
officer upon being called forth as herein prescribed shall be subject to
trial by court-martial, and shall be punished as such court-martial may
direct.
Sec. 8. That courts-martial for the trial of officers or men of the
militia, when in the service of the United States, shall be composed of
militia officers only.
Sec. 9. That the militia, when called into the actual service of the
United States, shall be subject to the same Rules and Articles of War as
the regular troops of the United States.
Sec. 10. That the militia, when called into the actual service of the
United States, shall, during their time of service, be entitled to the
same pay and allowances as are or may be provided by law for the Regular
Army.
Sec. 11. That when the militia is called into the actual service of the
United States, or any portion of the militia is accepted under the
provisions of this Act, their pay shall commence from the day of their
appearing at the place of company rendezvous. But this provision shall
not be construed to authorize any species of expenditure previous to
arriving at such places of rendezvous which is not provided by existing
laws to be paid after their arrival at such places of rendezvous.
Sec. 12. That there shall be appointed in each State, Territory and
District of Columbia, an Adjutant-General, who shall perform such duties
as may be prescribed by the laws of such State, Territory, and District,
respectively, and make returns to the Secretary of War, at such times
and in such form as he shall from time to time prescribe, of the
strength of the organized militia, and also make such reports as may
from time to time be required by the Secretary of War. That the
Secretary of War shall, with his annual report of each year, transmit to
Congress an abstract of the returns and reports of the adjutants-
general of the States, Territories', and the District of Columbia, with
such observations thereon as he may deem necessary for the information
of Congress.
Sec. 13. That the Secretary of War is hereby authorized to issue, on the
requisitions of the governors of the several States and Territories, or
of the commanding general of the militia of the District of Columbia,
such number of the United States standard service magazine arms, with
bayonets, bayonet scabbards, gun slings, belts, and such other necessary
accoutrements and equipments as are required for the Army of the United
States, for arming all of the orga
nized militia in said States and Territories and District of Columbia,
without charging the cost or value thereof, or any which have been
issued since December first, nineteen hundred and one, or any expense
connected therewith, against the allotment to said State, Territory, or
District of Columbia, out of the annual appropriation provided by
section sixteen hundred and sixty-one of the Revised Statutes, as
amended, or requiring payment therefor, and to exchange, without
receiving any money credit therefor, ammunition, or parts thereof,
suitable to the new arms, round for round, for corresponding ammunition
suitable to the old arms theretofore issued to said State, Territory, or
District by the United States: Provided, That said rifles and carbines
and other property shall be receipted for and shall remain the property
of the United States and be annually accounted for by the governors of
the States and Territories as now required bylaw, and that each State,
Territory, and District shall, on receipt of the new arms, turn in to
the Ordnance Department of the United States Army, without receiving any
money credit therefor, and without expense for transportation, all
United States rifles and carbines now in its possession.
To provide means to carry into effect the provisions of this section,
the necessary money to coyer the cost of exchanging or issuing the new
arms, accoutrements, equipments, and ammunition to be exchanged or
issued hereunder is hereby appropriated out of any moneys in the
Treasury not otherwise appropriated.
Sec. 14. That whenever it shall appear by the report of inspections,
which it shall be the duty of the Secretary of War to cause to be made
at least once in each year by officers detailed by him for that purpose,
that the organized militia of a State or Territory or of the District of
Columbia is sufficiently armed, uniformed, and equipped for active duty
in the field, the Secretary of War is authorized, on the requisition of
the governor of such State or Territory, to pay to the
quartermaster-general thereof, or to such other officer of the militia
of said State as the said governor may designate and appoint for the
purpose, so much of its allotment out of the said annual appropriation
under section sixteen hundred and sixty-one of the Revised Statutes as
amended as shall be necessary for the payment, subsistence, and
transportation of such portion of said organized militia as shall engage
in actual field or camp service for instruction, and the officers and
enlisted men of such militia while so engaged shall be entitled to the
same pay, subsistence, and transportation or travel allowances as
officers and enlisted men of Corresponding grades of the Regular Army
are or may hereafter be entitled by law, and the officer so designated
and appointed shall be regarded as a disbursing officer of the United
States, and shall render his accounts through the War Department to the
proper accounting officers of the Treasury for settlement, and he shall
be required to give good and sufficient bonds to the United States, in
such sums as the Secretary of War may direct, faithfully to account for
the safe-keeping and payment of the public moneys so intrusted to him
for disbursement.
Sec. 15. That the Secretary of War is hereby authorized to provide for
participation by any part of the organized militia of any State or
Territory on the request of the governor thereof in the encampment,
maneuvers, and field instruction of any part of the Regular Army at or
near any military post or camp or lake or seacoast defenses of the
United States. In such case the organized militia so participating shall
receive the same pay, subsistence, and transportation as is provided by
law for the officers and men of the Regular Army, to be paid out of the
appropriation for the pay, subsistence, and transportation of the Army:
Provided, That the command of such military post or camp and of the
officers and troops of the United States there stationed shall remain
with the regular commander of the post without regard to the rank of the
commanding or other officers of the militia temporarily so encamped
within its limits or in its vicinity.
Sec. 16. That whenever any officer of the organized militia shall, upon
recommendation of the* governor of any State, Territory, or general
commanding the District of Columbia, and when authorized by the
President, attend and pursue a regular course of study at any military
school or college of the United States such officer shall receive from
the annual appropriation for the support of the Army the same travel
allowances, and quarters, or commutation of quarters, to which an
officer of the Regular Army would be entitled if attending such school
or college under orders from proper military authority, and shall also
receive commutation of subsistence at the rate of one dollar per day
while in actual attendance upon the course of instruction.
Sec. 17. That the annual appropriation made by section sixteen hundred
and sixty-one, Revised Statutes, as amended, shall be available for the
purpose of providing for issue to the organized militia any stores and
supplies or publications which are supplied to the Army by any
department. Any State, Territory, or the District of Columbia may, with
the approval of the Secretary of War, purchase for cash from the War
Department, for the use of its militia, stores, supplies, material of
war, or military publications, such as are furnished to the Army, in
addition to those issued under the provisions of this Act, at the price
at which they are listed for issue to the Army, with the cost of
transportation added, and funds received from such sales shall be
credited to the appropriations to which they belong and shall not be
covered into the Treasury, but shall be available until expended to
replace therewith the supplies sold to the States and Territories and to
the District of Columbia in the manner herein provided.
Sec. 18. That each State or Territory furnished with material of war
under the provisions of; this or former Acts of Congress shall, during
the year next preceding each annual allotment of funds, in accordance
with section sixteen hundred and sixty-one of the. Revised Statutes as
amended, have required every company, troop, and battery in its
organized militia not excused by the governor of such State or Territory
to participate in practice marches or go into camp of instruction at
least five consecutive days, and to assemble for drill and instruction
at company, battalion, or regimental armories or rendez-vous or for
target practice not less than twenty-four times, and shall' also have
required during such year an inspection of each such company, troop, and
battery to be made by an officer of such militia or an officer of the
Regular Army.
Sec. 19. That upon the application of the governor of any State or
Territory furnished with material of war under the provisions of- this
Act or former laws of Congress, the Secretary of War may detail one or
more officers of the Army to attend any encampment of the organized
militia, and to give such instruction and information to the officers
and men assembled in such camp as may be requested by the governor. Such
officer or officers shall immediately make a report of such encampment
to the Secretary of War, who shall furnish a copy thereof to the
governor of the State or Territory.
Sec. 20. That upon application of the governor of any State or Territory
furnished with material of war under the provisions of this Act or
former laws of Congress, the Secretary of War may, in his discretion,
detail one or more officers of the Army to report to the governor of
such State or Territory for duty in connection with the organized
militia. All such assignments may be revoked at the request of the
governor of such State or Territory or at the pleasure of the Secretary
of War.
Sec. 21. That the troops of the militia encamped at any military post or
camp of the United States may be furnished such amounts of ammunition
for instruction in firing and target practice as may be prescribed by
the Secretary of War, and such instruction in firing shall be carried on
under the direction of an officer selected for that purpose by the
proper military commander.
Sec. 22. That when any officer, noncommissioned officer, or private of
the militia is disabled by reason of wounds or disabilities received or
incurred in the service of the United States he shall be entitled to all
the benefits of the pension laws existing at the time of his service,
and in case such officer, noncommissioned officer, or private dies in
the service of the United States or in returning to his place of
residence after being mustered out of such service, or at any time, in
consequence of wounds or disabilities received in such service, his
widow and children, if any, shall be entitled to all the benefits of
such pension laws.
Sec. 23. That for the purpose of securing a list of persons specially
qualified to hold commissions in any volunteer force which may hereafter
be called for and organized under the authority of Congress, other than
a force composed of organized militia, the Secretary of War is
authorized from time to time to convene boards of officers at suitable
and convenient army posts in different parts of the United States, who
shall examine as to their qualifications for the command of troops or
for the performance, of staff duties all applicants who shall have
served in the Regular Army of the United States, in any of the volunteer
forces of the United States, or in the organized militia of any State or
Territory or District of Columbia, or who, being a citizen of the United
States, shall have attended or pursued a regular course of instruction
in any military school or college of the United States Army, or shall
have graduated from any educational institution to which an officer of the
Army or Navy has been detailed as superintendent or professor pursuant
to law after having creditably pursued the course of military
instruction therein provided. Such examinations shall be under rules and
regulations prescribed by the Secretary of War, and shall be especially
directed to ascertain the practical capacity of the applicant. The
record of previous service of the applicant shall be considered as a
part of the examination. Upon the conclusion of each examination the
board shall certify to the War Department its judgment as to the fitness
of the applicant, stating the office, if any, which it deems him
qualified to fill, and, upon approval by the President, the names of the
persons certified to be qualified shall be inscribed in a register to be
kept in the War Department for that purpose. The persons so certified
and registered snail, subject to a physical examination at the time,
constitute an eligible class for commissions pursuant to such
certificates in any volunteer force hereafter called for and organized
under the authority of Congress, other than a force composed of
organized militia, and the President may authorize persons from this
class, to attend and pursue a regular course of study at any military
school or college of the United States other than the Military Academy
at West Point and to receive from the annual appropriation for the
support of the Army the same allowances and commutations as provided in
this Act for officers of the organized militia: Provided, That no person
shall be entitled to receive a commission as a second lieutenant after
he shall have passed the age of thirty; as first lieutenant after he
shall have passed the age of thirty-five; as. captain after he shall
have passed the age of forty; as major after he shall have passed the
age of forty-five; as lieutenant-colonel after he shall have passed the
age of fifty, or as colonel after he shall have passed the age of
fifty-five: And provided further, That such appointments shall be
distributed proportionately, as near as may be, among the various States
contributing such volunteer force: And provided. That the appointments
in this section provided for shall not be deemed to include appointments
to any office in any company, troop, battery, battalion, or regiment of
the organized militia which volunteers as a body or the officers of
which are appointed by the governor of a State or Territory.
Sec. 24. That all the volunteer forces of the United States called for
by authority of Congress shall, except as hereinbefore provided, be
organized in the manner provided by the Act entitled "An Act to provide
for temporarily increasing the military establishment of the United
States in time of war, and for other purposes," approved April
twenty-second, eighteen hundred and ninety-eight.
Sec. 25. That sections sixteen hundred and twenty-five to sixteen
hundred and sixty, both included, of title sixteen of the Revised
Statutes, and section two hundred and thirty-two thereof, relating to
the militia, are hereby repealed.
Sec. 26. That this Act shall take effect upon the date of its approval.
Approved, January 21, 1903.
EXHIBIT 14
97th Congress
2d Session COMMITTEE PRINT
THE RIGHT TO KEEP AND BEAR ARMS
--------
R E P O R T
OF THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-SEVENTH CONGRESS
SECOND SESSION
FEBRUARY 1982
Printed for the use of the Committee on the Judiciary
----
U.S. GOVERNMENT PRINTING OFFICE
88-618 O WASHINGTON : 1982
For sale by the Superintendent of Documents, U. S. Government Printing
Office
Washington, D.C. 20402(p.II)
COMMITTEE ON THE JUDICIARY
STROM THURMOND, South Carolina, Chairman
CHARLES McC. MATHIAS, Jr., Maryland JOSEPH R. BIDEN, Jr., Delaware
PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts
ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia
ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio
ALAN K. SIMPSON, Wyoming DENNIS DeCONCINI, Arizona
JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana
JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama
ARLEN SPECTER, Pennsylvania
Vinton De Vane Lide, Chief Counsel
Quentin Crommelin, Jr., Staff Director
------
Subcommittee on the Constitution
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina DENNIS DeCONCINI, Arizona
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
Stephen J. Markman, Chief Counsel and Staff Director
Randall Rader, General Counsel
Peter E. Ornsby, Counsel
Robert Feidler, Minority Counsel(p.III)
C O N T E N T S
----------
Preface, by Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary Com-
mittee, Subcommittee on the Constitution, from the State of Utah
Preface, by Senator Dennis DeConcini, ranking minority member, U.S. Senate
Judiciary Committee, Subcommittee on the Constitution, from the State of
Arizona
History: Second amendment right to "keep and bear arms"
Appendix: Case law
Enforcement of Federal firearms laws from the perspective of the second
amendment
Other Views of the second amendment:
Does the Second Amendment mean what it says?, by David J. Steinberg,
executive director, National Council for a Responsible Firearms Policy
National Coalition to ban handguns, statement on the Second Amend-
ment, by Michael K. Beard, executive director, and Samuel S. Fields,
legal affairs coordinator, National Coalition to Ban Handguns
Historical Bases of the Right to Keep and Bear Arms, by David T.
Hardy, partner in the Law Firm Sando & Hardy
The Fourteenth Amendment and the Right To Keep and Bear Arms: The
Intent of the Framers, by Stephen P. Halbrook, Ph.D., attorney and
counselor at law
The Second Amendment to the United States Constitution Guarantees an
Individual Right To Keep and Bear Arms, by James J. Featherstone,
Esq., General Counsel, Richard E. Gardner, Esq., and Robert Dowlut,
Esq., Office of the General Counsel, National Rifle Association of Amer-
ica
The Right To Bear Arms: The Development of the American Experience,
by John Levin, assistant professor, Chicago-Kent College of Law, Illi-
nois Institute of Technology
Standing Armies and Armed Citizens: An Historical Analysis of The
Second Amendment, by Roy G. Weatherup, J.D., 1972 Stanford Univer-
sity; member of the California Bar
Gun control legislation, by the Committee on Federal Legislation, the
Association of the Bar of the city of New York (p.V)
PREFACE
"To preserve liberty, it is essential that the whole body of the people
always possess arms, and be taught alike, especially when young, how to
use them." (Richard Henry Lee, Virginia delegate to the Continental
Congress, initiator of the Declaration of Independence, and member of
the first Senate, which passed the Bill of Rights.)
"The great object is that every man be armed ... Everyone who is able
may have a gun." (Patrick Henry, in the Virginia Convention on the
ratification of the Constitution.)
"The advantage of being armed ... the Americans possess over the people
of all other nations ... Notwithstanding the military establishments in
the several Kingdoms of Europe, which are carried as far as the public
resources will bear, the governments are afraid to trust the people with
arms." (James Madison, author of the Bill of Rights, in his Federalist
Paper No. 26.)
"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." (Second Amendment to the Constitution.)
In my studies as an attorney and as a United States Senator, I have
constantly been amazed by the indifference or even hostility shown the
Second Amendment by courts, legislatures, and commentators. James
Madison would be startled to hear that his recognition of a right to
keep and bear arms, which passed the House by a voice vote without
objection and hardly a debate, has since been construed in but a single,
and most ambiguous, Supreme Court decision, whereas his proposals for
freedom of religion, which he made reluctantly out of fear that they
would be rejected or narrowed beyond use, and those for freedom of
assembly, which passed only after a lengthy and bitter debate, are the
subject of scores of detailed and favorable decisions. Thomas Jefferson,
who kept a veritable armory of pistols, rifles and shotguns at
Monticello, and advised his nephew to forsake other sports in favor of
hunting, would be astounded to hear supposed civil libertarians claim
firearm ownership should be restricted. Samuel Adams, a handgun owner
who pressed for an amendment stating that the "Constitution shall never
be construed ... to prevent the people of the United States who are
peaceable citizens from keeping their own arms," would be shocked to
hear that his native state today imposes a year's sentence, without
probation or parole, for carrying a firearm without a police permit.(p.VI)
This is not to imply that courts have totally ignored the impact of the
Second Amendment in the Bill of Rights. No fewer than twenty-one
decisions by the courts of our states have recognized an individual
right to keep and bear arms, and a majority of these have not only
recognized the right but invalidated laws or regulations which abridged
it. Yet in all too many instances, courts or commentators have sought,
for reasons only tangentially related to constitutional history, to
construe this right out of existence. They argue that the Second
Amendment's words "right of the people" mean "a right of the
state"--apparently overlooking the impact of those same words when used
in the First and Fourth Amendments. The "right of the people" to
assemble or to be free from unreasonable searches and seizures is not
contested as an individual guarantee. Still they ignore consistency and
claim that the right to "bear arms" relates only to military uses. This
not only violates a consistent constitutional reading of "right of the
people" but also ignores that the second amendmen
t protects a right to "keep" arms. These commentators contend instead
that the amendment's preamble regarding the necessity of a "well
regulated militia ... to a free state" means that the right to keep and
bear arms applies only to a National Guard. Such a reading fails to note
that the Framers used the term "militia" to relate to every citizen
capable of bearing arms, and that Congress has established the present
National Guard under its power to raise armies, expressly stating that
it was not doing so under its power to organize and arm the militia.
When the first Congress convened for the purpose of drafting a Bill of
Rights, it delegated the task to James Madison. Madison did not write
upon a blank tablet. Instead, he obtained a pamphlet listing the State
proposals for a bill of rights and sought to produce a briefer version
incorporating all the vital proposals of these. His purpose was to
incorporate, not distinguish by technical changes, proposals such as
that of the Pennsylvania minority, Sam Adams, or the New Hampshire
delegates. Madison proposed among other rights that "That right of the
people to keep and bear arms shall not be infringed; a well armed and
well regulated militia being the best security of a free country; but no
person religiously scrupulous of bearing arms shall be compelled to
render military service in person." In the House, this was initially
modified so that the militia clause came before the proposal recognizing
the right. The proposals for the Bill of Rights were then trimmed in the
interests of brevity. The conscientious objector clause was removed
following objections by Elbridge Gerry, who complained that future
Congresses might abuse the exemption to excuse everyone from military
service.
The proposal finally passed the House in its present form: "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.:" In
this form it was submitted into the Senate, which passed it the
following day. The Senate in the process indicated its intent that the
right be an individual one, for private purposes, by rejecting an
amendment which would have limited the keeping and bearing of arms to
bearing "For the common defense".
The earliest American constitutional commentators concurred in giving
this broad reading to the amendment. When St. George (p.VII)Tucker,
later Chief Justice of the Virginia Supreme Court, in 1803 published an
edition of Blackstone annotated to American law, he followed
Blackstone's citation of the right of the subject "of having arms
suitable to their condition and degree, and such as are allowed by law"
with a citation to the Second Amendment, "And this without any
qualification as to their condition or degree, as is the case in the
British government." William Rawle's "View of the Constitution"
published in Philadelphia in 1825 noted that under the Second Amendment:
"The prohibition is general. No clause in the Constitution could by a
rule of construction be conceived to give to Congress a power to disarm
the people. Such a flagitious attempt could only be made under some
general pretense by a state legislature. But if in blind pursuit of
inordinate power, either should attempt it, this amendment may be
appealed to as a restraint on both." The Jefferson papers in the Library
of Congress show that both Tucker and Rawle were friends of, and
corresponded with, Thomas Jefferson. Their views are those of
contemporaries of Jefferson, Madison and others, and are entitled to
special weight. A few years later, Joseph Story in his "Commentaries on
the Constitution" considered the right to keep and bear arms as "the
palladium of the liberties of the republic", which deterred tyranny and
enabled the citizenry at large to overthrow it should it come to pass.
Subsequent legislation in the second Congress likewise supports the
interpretation of the Second Amendment that creates an individual right.
In the Militia Act of 1792, the second Congress defined "militia of the
United States" to include almost every free adult male in the United
States. These persons were obligated by law to possess a firearm and a
minimum supply of ammunition and military equipment. This statute,
incidentally, remained in effect into the early years of the present
century as a legal requirement of gun ownership for most of the
population of the United States. There can be little doubt from this
that when the Congress and the people spoke of a "militia", they had
reference to the traditional concept of the entire populace capable of
bearing arms, and not to any formal group such as what is today called
the National Guard. The purpose was to create an armed citizenry, which
the political theorists at the time considered essential to ward off
tyranny. From this militia, appropriate measures might create a "well
regulated militia" of individuals trained in their duties and
responsibilities as citizens and owners of firearms.
If gun laws in fact worked, the sponsors of this type of legislation
should have no difficulty drawing upon long lists of examples of crime
rates reduced by such legislation. That they cannot do so after a
century and a half of trying--that they must sweep under the rug the
southern attempts at gun control in the 1870-1910 period, the
northeastern attempts in the 1920-1939 period, the attempts at both
Federal and State levels in 1965-1976--establishes the repeated,
complete and inevitable failure of gun laws to control serious crime.
Immediately upon assuming chairmanship of the Subcommittee on the
Constitution, I sponsored the report which follows as an effort to
study, rather than ignore, the history of the controversy over the right
to keep and bear arms. Utilizing the research capabilities (p.VIII)of
the Subcommittee on the Constitution, the resources of the Library of
Congress, and the assistance of constitutional scholars such as Mary
Kaaren Jolly, Steven Halbrook, and David T. Hardy, the subcommittee has
managed to uncover information on the right to keep and bear arms which
documents quite clearly its status as a major individual right of
American citizens. We did not guess at the purpose of the British 1689
Declaration of Rights; we located the Journals of the House of Commons
and private notes of the Declaration's sponsors, now dead for two
centuries. We did not make suppositions as to colonial interpretations
of that Declaration's right to keep arms; we examined colonial
newspapers which discussed it. We did not speculate as to the intent of
the framers of the second amendment; we examined James Madison's drafts
for it, his handwritten outlines of speeches upon the Bill of Rights,
and discussions of the second amendment by early scholars who were
personal friends of Madison, Jefferson, and Washington and wrote while
these still lived. What the Subcommittee on the Constitution uncovered
was clear--and long-lost--proof that the second amendment to our
Constitution was intended as an individual right of the American citizen
to keep and carry arms in a peaceful manner, for protection of himself,
his family, and his freedoms. The summary of our research and findings
forms the first portion of this report.
In the interest of fairness and the presentation of a complete picture,
we also invited groups which were likely to oppose this recognition of
freedoms to submit their views. The statements of two associations who
replied are reproduced here following the report of the Subcommittee.
The Subcommittee also invited statements by Messrs. Halbrook and Hardy,
and by the National Rifle Association, whose statements likewise follow
our report.
When I became chairman of the Subcommittee on the Constitution, I hoped
that I would be able to assist in the protection of the constitutional
rights of American citizens, rights which have too often been eroded in
the belief that government could be relied upon for quick solutions to
difficult problems.
Both as an American citizen and as a United States Senator I repudiate
this view. I likewise repudiate the approach of those who believe to
solve American problems you simply become something other than American.
To my mind, the uniqueness of our free institutions, the fact that an
American citizen can boast freedoms unknown in any other land, is all
the more reason to resist any erosion of our individual rights. When our
ancestors forged a land "conceived in liberty", they did so with musket
and rifle. When they reacted to attempts to dissolve their free
institutions, and established their identity as a free nation, they did
so as a nation of armed freemen. When they sought to record forever a
guarantee of their rights, they devoted one full amendment out of ten to
nothing but the protection of their right to keep and bear arms against
government interference. Under my chairmanship the Subcommittee on the
Constitution will concern itself with a proper recognition of, and
respect for, this right most valued by free men.
Orrin G. Hatch,
Chairman,
Subcommittee on the Constitution.
January 20, 1982.(p.IX)
The right to bear arms is a tradition with deep roots in American
society. Thomas Jefferson proposed that "no free man shall ever be
debarred the use of arms," and Samuel Adams called for an amendment
banning any law "to prevent the people of the United States who are
peaceable citizens from keeping their own arms." The Constitution of the
State of Arizona, for example, recognizes the "right of an individual
citizen to bear arms in defense of himself or the State."
Even though the tradition has deep roots, its application to modern
America is the subject of intense controversy. Indeed, it is a
controversy into which the Congress is beginning, once again, to immerse
itself. I have personally been disappointed that so important an issue
should have generally been so thinly researched and so minimally debated
both in Co
ngress and the courts. Our Supreme Court has but once touched on its
meaning at the Federal level and that decision, now nearly a
half-century old, is so ambiguous that any school of thought can find
some support in it. All Supreme Court decisions on the second
amendment's application to the States came in the last century, when
constitutional law was far different than it is today. As ranking
minority member of the Subcommittee on the Constitution, I, therefore,
welcome the effort which led to this report--a report based not only
upon the independent research of the subcommittee staff, but also upon
full and fair presentation of the cases by all interested groups and
individual scholars.
I personally believe that it is necessary for the Congress to amend the
Gun Control Act of 1968. I welcome the opportunity to introduce this
discussion of how best these amendments might be made.
The Constitution subcommittee staff has prepared this monograph bringing
together proponents of both sides of the debate over the 1968 Act. I
believe that the statements contained herein present the arguments
fairly and thoroughly. I commend Senator Hatch, chairman of the
subcommittee, for having this excellent reference work prepared. I am
sure that it will be of great assistance to the Congress as it debates
the second amendment and considers legislation to amend the Gun Control Act.
Dennis Deconcini,
Ranking Minority Member,
Subcommittee On the Constitution.
January 20, 1982.(p.1)
History: Second Amendment Right To "Keep and Bear Arms"
The right to keep and bear arms as a part of English and American law
antedates not only the Constitution, but also the discovery of firearms.
Under the laws of Alfred the Great, whose reign began in 872 A.D., all
English citizens from the nobility to the peasants were obliged to
privately purchase weapons and be available for military duty.[1] This
was in sharp contrast to the feudal system as it evolved in Europe,
under which armament and military duties were concentrated in the
nobility. The body of armed citizens were known as the "fyrd".
While a great many of the Saxon rights were abridged following the
Norman conquest, the right and duty of arms possession was retained.
Under the Assize of Arms of 1181, "the whole community of freemen"
between the ages of 15 and 40 were required by law to possess certain
arms, which were arranged in proportion to their possessions.[2] They
were required twice a year to demonstrate to Royal Officials that they
were appropriately armed. In 1253, another Assize of Arms expanded the
duty of armament to include not only freeman, but also villeins, who
were the English equivalent of serfs. Now all "citizens, burgesses, free
tenants, villeins and others from 15 to 60 years of age" were obliged to
be armed.[3] While on the Continent the villeins were regarded as little
more than animals hungering for rebellion, the English legal system not
only permitted, but affirmatively required them, to be armed.
The thirteenth century saw further definitions of this right as the long
bow, a formidable armor-piercing weapon, became increasingly the
mainstay of British national policy. In 1285, Edward I commanded that
all persons comply with the earlier Assizes and added that "anyone else
who can afford them shall keep bows and arrows".[4] The right of
armament was subject only to narrow limitations. In 1279, it was ordered
that those appearing in Parliament or other public assemblies "shall
come without all force and armor, well and peaceably".[5] In 1328, the
statute of Northampton ordered that no one use their arms in "affray of
the peace, nor to go nor ride armed by day or by night in fairs,
markets, nor in the presence of the justices or other ministers".[6]
English courts construed this ban consistently with the general right of
private armament as applying only to wearing of arms "accompanied with
such circumstances as are apt to terrify the people".[7] In 1369, the
King ordered that the sheriffs of London require all citizens "at
leisure time on holidays" to "use in their recreation bowes and arrows"
and to stop all other games which might distract them from this practice.[8]
The Tudor kings experimented with limits upon specialized
weapons--mainly crossbows and the then-new firearms. These measures were
not intended to disarm the citizenry, but on the contrary, to prevent
their being diverted from longbow practice by (p.2)sport with other
weapons which were considered less effective. Even these narrow measures
were shortlived. In 1503, Henry VII limited shooting (but not
possession) of crossbows to those with land worth 200 marks annual
rental, but provided an exception for those who "shote owt of a howse
for the lawefull defens of the same".[9] In 1511, Henry VIII increased
the property requirement to 300 marks. He also expanded the requirement
of longbow ownership, requiring all citizens to "use and exercyse
shootyng in longbowes, and also have a bowe and arrowes contynually" in
the house.[10] Fathers were required by law to purchase bows and arrows
for their sons between the age of 7 and 14 and to train them in longbow use.
In 1514 the ban on crossbows was extended to include firearms.[11] But
in 1533, Henry reduced the property qualification to 100 pounds per
year; in 1541 he limited it to possession of small firearms ("of the
length of one hole yard" for some firearms and "thre quarters of a
yarde" for others)[12] and eventually he repealed the entire statute by
proclamation.[13] The later Tudor monarchs continued the system and
Elizabeth added to it by creating what came to be known as "train
bands", selected portions of the citizenry chosen for special training.
These trained bands were distinguished from the "militia", which term
was first used during the Spanish Armada crisis to designate the entire
of the armed citizenry.[14]
The militia continued to be a pivotal force in the English political
system. The British historian Charles Oman considers the existence of
the armed citizenry to be a major reason for the moderation of
monarchical rule in Great Britain; "More than once he [Henry VIII] had
to restrain himself, when he discovered that the general feeling of his
subjects was against him.... His 'gentlemen pensioners' and his yeomen
of the guard were but a handful, and bills or bows were in every farm
and cottage".[15]
When civil war broke out in 1642, the critical issue was whether the
King or Parliament had the right to control the militia.[16] The
aftermath of the civil war saw England in temporary control of a
military government, which repeatedly dissolved Parliament and
authorized its officers to "search for, and seize all arms" owned by
Catholics, opponents of the government, "or any other person whom the
commissioners had judged dangerous to the peace of this Commonwealth".[17]
The military government ended with the restoration of Charles II.
Charles in turn opened his reign with a variety of repressive
legislation, expanding the definition of treason, establishing press
censorship and ordering his supporters to form their own troops, "the
officers to be numerous, disaffected persons watched and not allowed to
assemble, and their arms seized".[18] In 1662, a Militia Act was enacted
empowering officials "to search for and seize all arms in the custody or
possession of any person or persons whom the said lieutenants or any two
or more of their deputies shall judge dangerous to the peace of the
kingdom".[19] Gunsmiths were ordered to deliver to the government lists
of all purchasers.[20] These confiscations were continued under James
II, who directed them particularly against the Irish population:
"Although the (p.3)country was infested by predatory bands, a Protestant
gentleman could scarcely obtain permission to keep a brace of pistols."[21]
In 1668, the government of James was overturned in a peaceful uprising
which came to be known as "The Glorious Revolution". Parliament resolved
that James had abdicated and promulgated a Declaration of Rights, later
enacted as the Bill of Rights. Before coronation, his successor William
of Orange, was required to swear to respect these rights. The debates in
the House of Commons over this Declaration of Rights focused largely
upon the disarmament under the 1662 Militia Act. One member complained
that "an act of Parliament was made to disarm all Englishmen, who the
lieutenant should suspect, by day or night, by force or otherwise--this
was done in Ireland for the sake of putting arms into Irish hands." The
speech of another is summarized as "militia bill--power to disarm all
England--now done in Ireland." A third complained "Arbitrary power
exercised by the ministry.... Militia--imprisoning without reason;
disarming--himself disarmed." Yet another summarized his complaints
"Militia Act--an abominable thing to disarm the nation...."[22]
The Bill of Rights, as drafted in the House of Commons, simply provided
that "the acts concerning the militia are grievous to the subject" and
that "it is necessary for the public Safety that the Subjects, which are
Protestants, should provide and keep arms for the common defense; And
that the Arms which have been seized, and taken from them, be
restored."[23] The House of Lords changed this to make it a more
positive declaration of an individual right under English law: "That the
subjects which are Protestant may have arms for their defense suitable
to their conditions and as allowed by law."[24] The only limitation was
on ownership by Catholics, who at that time composed only a few percent
of the British population and were subject to a wide variety of punitive
legislation. The Parliament subsequently made clear what it meant by
"suitable to their conditions and as allowed by law". The poorer
citizens had been restricted from owning firearms, as well as traps and
other commodities useful for hunting, by the 1671 Game Act. Following
the Bill of Rights, Parliament reenacted that statute, leaving its
operative parts unchanged with one exception--which removed the word
"guns" from the list of items forbidden to the poorer citizens.[25] The
right to keep and bear arms would henceforth belong to all English
subjects, rich and poor alike.
In the colonies, availability of hunting and need for defense led to
armament statues comparable to those of the early Saxon times. In 1623,
Virginia forbade its colonists to travel unless they were "well armed";
in 1631 it required colonists to engage in target practice on Sunday and
to "bring their peeces to church."[26] In 1658 it required every
householder to have a functioning firearm within his house and in 1673
its laws provided that a citizen who claimed he was too poor to purchase
a firearm would have one purchased for him by the government, which
would then require him to pay a reasonable price when able to do so.[27]
In Massachusetts, the first session of the legislature ordered that not
only freemen, but also indentured servants own firearms and in 1644 it
imposed a stern 6 shilling fine upon any citizen who was not armed.[28](p.4)
When the British government began to increase its military presence in
the colonies in the mid-eighteenth century, Massachusetts responded by
calling upon its citizens to arm themselves in defense. One colonial
newspaper argued that it was impossible to complain that this act was
illegal since they were "British subjects, to whom the privilege of
possessing arms is expressly recognized by the Bill of Rights" while
another argued that this "is a natural right which the people have
reserved to themselves, confirmed by the Bill of Rights, to keep arms
for their own defense".[29] The newspaper cited Blackstone's
commentaries on the laws of England, which had listed the "having and
using arms for self preservation and defense" among the "absolute rights
of individuals." The colonists felt they had an absolute right at common
law to own firearms.
Together with freedom of the press, the right to keep and bear arms
became one of the individual rights most prized by the colonists. When
British troops seized a militia arsenal in September, 1774, and
incorrect rumors that colonists had been killed spread through
Massachusetts, 60,000 citizens took up arms.[30] A few months later,
when Patrick Henry delivered his famed "Give me liberty or give me
death" speech, he spoke in support of a proposition "that a well
regulated militia, composed of gentlemen and freemen, is the natural
strength and only security of a free government...." Throughout the
following revolution, formal and informal units of armed citizens
obstructed British communication, cut off foraging parties, and harassed
the thinly stretched regular forces. When seven states adopted state
"bills of rights" following the Declaration of Independence, each of
those bills of rights provided either for protection of the concept of a
militia or for an express right to keep and bear arms.[31]
Following the revolution but previous to the adoption of the
Constitution, debates over militia proposals occupied a large part of
the political scene. A variety of plans were put forth by figures
ranging from George Washington to Baron von Steuben.[32] All of the
proposals called for a general duty of all citizens to be armed,
although some proposals (most notably von Steuben's) also emphasized a
"select militia" which would be paid for its services and given special
training. In this respect, this "select militia" was the successor of
the "trained bands" and the predecessor of what is today the "national
guard". In the debates over the Constitution, von Steubon's proposals
were criticized as undemocratic. In Connecticut one writer complained of
a proposal that "this looks too much like Baron von Steubon's militia,
by which a standing army was meant and intended."[33] In Pennsylvania, a
delegate argued "Congress may give us a select militia which will, in
fact, be a standing army--or Congress, afraid of a general militia, may
say there will be no militia at all. When a select militia is formed,
the people in general may be disarmed."[34] Richard Henry Lee, in his
widely read pamphlet "Letters from the Federal Farmer to the Republican"
worried that the people might be disarmed "by modelling the militia.
Should one fifth or one eighth part of the people capable of bearing
arms be made into a select militia, as has been proposed, and those the
young and ardent parts of the community, possessed of little or no
property, the former will answer all the purposes of an army, while the
latter will be defenseless." He (p.5)proposed that "the Constitution
ought to secure a genuine, and guard against a select militia," adding
that "to preserve liberty, it is essential that the whole body of the
people always possess arms and be taught alike, especially when young,
how to use them."[35]
The suspicion of select militia units expressed in these passages is a
clear indication that the framers of the Constitution did not seek to
guarantee a State right to maintain formed groups similar to the
National Guard, but rather to protect the right of individual citizens
to keep and bear arms. Lee, in particular, sat in the Senate which
approved the Bill of Rights. He would hardly have meant the second
amendment to apply only to the select militias he so feared and disliked.
Other figures of the period were of like mind. In the Virginia
convention, George Mason, drafter of the Virginia Bill of Rights,
accused the British of having plotted "to disarm the people--that was
the best and most effective way to enslave them", while Patrick Henry
observed that "The great object is that every man be armed" and
"everyone who is able may have a gun".[36]
Nor were the antifederalist, to whom we owe credit for a Bill of Rights,
alone on this account. Federalist arguments also provide a source of
support for an individual rights view. Their arguments in favor of the
proposed Constitution also relied heavily upon universal armament. The
proposed Constitution had been heavily criticized for its failure to ban
or even limit standing armies. Unable to deny this omission, the
Constitution's supporters frequently argued to the people that the
universal armament of Americans made such limitations unnecessary. A
pamphlet written by Noah Webster, aimed at swaying Pennsylvania toward
ratification, observed
Before a standing army can rule, the people must be disarmed; as they
are in almost every kingdom in Europe. The supreme power in America
cannot enforce unjust laws by the sword, because the whole body of the
people are armed, and constitute a force superior to any band of regular
troops that can be, on any pretense, raised in the United States.[37]
In the Massachusetts convention, Sedgwick echoed the same thought,
rhetorically asking if an oppressive army could be formed or "if raised,
whether they could subdue a Nation of freemen, who know how to prize
liberty, and who have arms in their hands?"[38] In Federalist Paper 46,
Madison, later author of the Second Amendment, mentioned "The advantage
of being armed, which the Americans possess over the people of all other
countries" and that "notwithstanding the military establishments in the
several kingdoms of Europe, which are carried as far as the public
resources will bear, the governments are afraid to trust the people with
arms."
A third and even more compelling case for an individual rights
perspective on the Second Amendment comes from the State demands for a
bill of rights. Numerous state ratifications called for adoption of a
Bill of Rights as a part of the Constitution. The first such call came
from a group of Pennsylvania delegates. Their proposals, which were not
adopted but had a critical effect on future debates, proposed among
other rights that "the people have (p.6)a right to bear arms for the
defense of themselves and their own state, or the United States, or for
the purpose of killing game; and no law shall be passed for disarming
the people or any of them, unless for crimes committed, or a real danger
of public injury from individuals."[39] In Massachusetts, Sam Adams
unsuccessfully pushed for a ratification conditioned on adoption of a
Bill of Rights, beginning with a guarantee "That the said Constitution
shall never be construed to authorize Congress to infringe the just
liberty of the press or the rights of conscience; or to prevent the
people of the United States who are peaceable citizens from keeping
their own arms...."[40] When New Hampshire gave the Constitution the
ninth vote needed for its passing into effect, it called for adoption of
a Bill of Rights which included the provision that "Congress shall never
disarm any citizen unless such as are or have been in actual
rebellion".[41] Virginia and North Carolina thereafter called for a
provision "that the people have the right to keep and bear arms; that a
well regulated militia composed of the body of the people trained to
arms is the proper, natural and safe defense of a free state."[42]
When the first Congress convened for the purpose of drafting a Bill of
Rights, it delegated the task to James Madison. Madison did not write
upon a blank tablet. Instead, he obtained a pamphlet listing the State
proposals for a Bill of Rights and sought to produce a briefer version
incorporating all the vital proposals of these. His purpose was to
incorporate, not distinguish by technical changes, proposals such as
that of the Pennsylvania minority, Sam Adams, and the New Hampshire
delegates. Madison proposed among other rights that:
"The right of the people to keep and bear arms shall not be infringed; a
well armed and well regulated militia being the best security of a free
country; but no person religiously scrupulous of bearing arms shall be
compelled to render military service in person."[43]
In the House, this was initially modified so that th
e militia clause came before the proposal recognizing the right. The
proposals for the Bill of Rights were then trimmed in the interests of
brevity. The conscientious objector clause was removed following
objections by Elbridge Gerry, who complained that future Congresses
might abuse the exemption for the scrupulous to excuse everyone from
militia service.
The proposal finally passed the House in its present form: "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." In
this form it was submitted into the Senate, which passed it the
following day. The Senate in the process indicated its intent that the
right be an individual one, for private purposes, by rejecting an
amendment which would have limited the keeping and bearing of arms to
bearing "for the common defense".
The earliest American constitutional commentators concurred in giving
this broad reading to the amendment. When St. George Tucker, later Chief
Justice of the Virginia Supreme Court, in 1803 published an edition of
Blackstone annotated to American law, he followed Blackstone's citation
of the right of the subject "of having (p.7)arms suitable to their
condition and degree, and such as are allowed by law" with a citation to
the Second Amendment, "And this without any qualification as to their
condition or degree, as is the case in the British government".[44]
William Rawle's "View of the Constitution" published in Philadelphia in
1825 noted that under the Second Amendment
The prohibition is general. No clause in the Constitution could by a
rule of construction be conceived to give to Congress a power to disarm
the people. Such a flagitious attempt could only be made under some
general pretense by a state legislature. But if in blind pursuit of
inordinate power, either should attempt it, this amendment may be
appealed to as a restraint on both."[45]
The Jefferson papers in the Library of Congress show that both Tucker
and Rawle were friends of, and corresponded with Thomas Jefferson. This
suggests that their assessment, as contemporaries of the Constitution's
drafters, should be afforded special consideration.
Later commentators agreed with Tucker and Rawle. For instance, Joseph
Story in his "Commentaries on the Constitution" considered the right to
keep and bear arms as "the palladium of the liberties of the republic",
which deterred tyranny and enabled the citizenry at large to overthrow
it should it come to pass.[46]
Subsequent legislation in the Second Congress likewise supports the
interpretation of the second amendment that creates an individual right.
In the Militia Act of 1792, the second Congress defined "militia of the
United States" to include almost every free adult male in the United
States. These persons were obliged by law to possess a firearm and a
minimum supply of ammunition and military equipment.[47] This statute,
incidentally remained in effect into the early years of the present
century as a legal requirement of gun ownership for most of the
population of the United States. There can be little doubt from this
that when the Congress and the people spoke of a "militia", they had
reference to the traditional concept of the entire populace capable of
bearing arms, and not to any formal group such as what is today called
the National Guard. The purpose was to create an armed citizenry, such
as the political theorists at the time considered essential to ward off
tyranny. From this militia, appropriate measures might create a "well
regulated militia" of individuals trained in their duties and
responsibilities as citizens and owners of firearms.
The Second Amendment as such was rarely litigated prior to the passage
of the Fourteenth Amendment. Prior to that time, most courts accepted
that the commands of the federal Bill of Rights did not apply to the
states. Since there was no federal firearms legislation at this time,
there was no legislation which was directly subject to the Second
Amendment, if the accepted interpretations were followed. However, a
broad variety of state legislation was struck down under state
guarantees of the right to keep and bear arms and even in a few cases,
under the Second Amendment, when it came before courts which considered
the federal protections applicable to the states. Kentucky in 1813
enacted the first carrying concealed weapon statute in the United
States; in 1822 the Kentucky (p.8)Court of Appeals struck down the law
as a violation of the state constitutional protection of the right to
keep and bear arms: "And can there be entertained a reasonable doubt but
the provisions of that act import a restraint on the right of the
citizen to bear arms? The court apprehends it not. The right existed at
the adoption of the Constitution; it then had no limit short of the
moral power of the citizens to exercise it, and in fact consisted of
nothing else but the liberty of the citizen to bear arms."[48] On the
other hand, a similar measure was sustained in Indiana, not upon the
grounds that a right to keep and bear arms did not apply, but rather
upon the notion that a statute banning only concealed carrying still
permitted the carrying of arms and merely regulated one possible way of
carrying them.[49] A few years later, the Supreme Court of Alabama
upheld a similar statute but added "We do not desire to be understood as
maintaining, that in regulating the manner of wearing arms, the
legislature has no other limit than its own discretion. A statute which,
under the pretense of regulation, amounts to a destruction of that
right, or which requires arms to be so borne as to render them wholly
useless for the purpose of defense, would be clearly
unconstitutional."[50] When the Arkansas Supreme Court in 1842 upheld a
carrying concealed weapons statute, the chief justice explained that the
statute would not "detract anything from the power of the people to
defend their free state and the established institutions of the country.
It prohibits only the wearing of certain arms concealed. This is simply
a regulation as to the manner of bearing such arms as are specified",
while the dissenting justice proclaimed "I deny that any just or free
government upon earth has the power to disarm its citizens.[51]
Sometimes courts went farther. When in 1837, Georgia totally banned the
sale of pistols (excepting the larger pistols "known and used as
horsemen's pistols") and other weapons, the Georgia Supreme Court in
Nunn v. State held the statute unconstitutional under the Second
Amendment to the federal Constitution. The court held that the Bill of
Rights protected natural rights which were fully as capable of
infringement by states as by the federal government and that the Second
Amendment provided "the right of the whole people, old and young, men,
women and boys, and not militia only, to keep and bear arms of every
description, and not merely such as are used by the militia, shall not
be infringed, curtailed, or broken in on, in the slightest degree; and
all this for the important end to be attained: the rearing up and
qualifying of a well regulated militia, so vitally necessary to the
security of a free state."[52] Prior to the Civil War, the Supreme Court
of the United States likewise indicated that the privileges of
citizenship included the individual right to own and carry firearms. In
the notorious Dred Scott case, the court held that black Americans were
not citizens and could not be made such by any state. This decision,
which by striking down the Missouri Compromise did so much to bring on
the Civil War, listed what the Supreme Court considered the rights of
American citizens by way of illustrating what rights would have to be
given to black Americans if the Court were to recognize them as full
fledged citizens:(p.9)
It would give to persons of the negro race, who are recognized as
citizens in any one state of the Union, the right to enter every other
state, whenever they pleased.... and it would give them full liberty of
speech in public and in private upon all subjects upon which its own
citizens might meet; to hold public meetings upon political affairs, and
to keep and carry arms wherever they went.[53]
Following the Civil War, the legislative efforts which gave us three
amendments to the Constitution and our earliest civil rights acts
likewise recognized the right to keep and bear arms as an existing
constitutional right of the individual citizen and as a right
specifically singled out as one protected by the civil rights acts and
by the Fourteenth Amendment to the Constitution, against infringement by
state authorities. Much of the reconstruction effort in the South had
been hinged upon the creation of "black militias" composed of the armed
and newly freed blacks, officered largely by black veterans of the Union
Army. In the months after the Civil War, the existing southern
governments struck at these units with the enactment of "black codes"
which either outlawed gun ownership by blacks entirely, or imposed
permit systems for them, and permitted the confiscation of firearms
owned by blacks. When the Civil Rights Act of 1866 was debated members
both of the Senate and the House referred to the disarmament of blacks
as a major consideration.[54] Senator Trumbull cited provisions
outlawing ownership of arms by blacks as among those which the Civil
Rights Act would prevent;[55] Senator Sulsbury complained on the other
hand that if the act were to be passed it would prevent his own state
from enforcing a law banning gun ownership by individual free
blacks.[56] Similar arguments were advanced during the debates over the
"anti-KKK act"; its sponsor at one point explained that a section making
it a federal crime to deprive a person of "arms or weapons he may have
in his house or possession for the defense of his person, family or
property" was "intended to enforce the well-known constitu
tional provisions guaranteeing the right in the citizen to 'keep and
bear arms'."[57] Likewise, the debates over the Fourteenth Amendment
Congress frequently referred to the Second Amendment as one of the
rights which it intended to guarantee against state action.[58]
Following adoption of the Fourteenth Amendment, however, the Supreme
Court held that that Amendment's prohibition against states depriving
any persons of their federal "privileges and immunities" was to be given
a narrow construction. In particular, the "privileges and immunities"
under the Constitution would refer only to those rights which were not
felt to exist as a process of natural right, but which were created
solely by the Constitution. These might refer to rights such as voting
in federal elections and of interstate travel, which would clearly not
exist except by virtue of the existence of a federal government and
which could not be said to be "natural rights".[59] This paradoxically
meant that the rights which most persons would accept as the most
important--those flowing from concepts of natural justice--were devalued
at the expense of more technical rights. Thus when individuals were
charged with having deprived black citizens of their right to freedom
(p.10)of assembly and to keep and bear arms, by violently breaking up a
peaceable assembly of black citizens, the Supreme Court in United States
v. Cruikshank[60] held that no indictment could be properly brought
since the right "of bearing arms for a lawful purpose" is "not a right
granted by the Constitution. Neither is it in any manner dependent upon
that instrument for its existence." Nor, in the view of the Court, was
the right to peacefully assemble a right protected by the Fourteenth
Amendment: "The right of the people peaceably to assemble for lawful
purposes existed long before the adoption of the Constitution of the
United States. In fact, it is and has always been one of the attributes
of citizenship under a free government.... It was not, therefore, a
right granted to the people by the Constitution." Thus the very
importance of the rights protected by the First and Second Amendment was
used as the basis for the argument that they did not apply to the states
under the Fourteenth Amendment. In later opinions, chiefly Presser v.
Illinois[61] and Miller v. Texas,[62] the Supreme Court adhered to the
view. Cruikshank has clearly been superseded by twentieth century
opinions which hold that portions of the Bill of Rights--and in
particular the right to assembly with which Cruikshank dealt in addition
to the Second Amendment--are binding upon the state governments. Given
the legislative history of the Civil Rights Acts and the Fourteenth
Amendment, and the more expanded views of incorporation which have
become accepted in our own century, it is clear that the right to keep
and bear arms was meant to be and should be protected under the civil
rights statutes and the Fourteenth Amendment against infringement by
officials acting under color of state law.
Within our own century, the only occasion upon which the Second
Amendment has reached the Supreme Court came in United States v.
Miller.[63] There, a prosecution for carrying a sawed off shotgun was
dismissed before trial on Second Amendment grounds. In doing so, the
court took no evidence as to the nature of the firearm or indeed any
other factual matter. The Supreme Court reversed on procedural grounds,
holding that the trial court could not take judicial notice of the
relationship between a firearm and the Second Amendment, but must
receive some manner of evidence. It did not formulate a test nor state
precisely what relationship might be required. The court's statement
that the amendment was adopted "to assure the continuation and render
possible the effectiveness of such [militia] forces" and "must be
interpreted and applied with that end in view", when combined with the
court's statement that all constitutional sources "show plainly enough
that the militia comprised all males physically capable of acting in
concert for the common defense.... these men were expected to appear
bearing arms supplied by themselves and of the kind in common use at the
time,"[64] suggests that at the very least private ownership by a person
capable of self defense and using an ordinary privately owned firearm
must be protected by the Second Amendment. What the Court did not do in
Miller is even more striking: It did not suggest that the lower court
take evidence on whether Miller belonged to the National Guard or a
similar group. The hearing was to be on the nature of the (p.11)firearm,
not on the nature of its use; nor is there a single suggestion that
National Guard status is relevant to the case.
The Second Amendment right to keep and bear arms therefore, is a right
of the individual citizen to privately posses and carry in a peaceful
manner firearms and similar arms. Such an "individual rights"
interpretation is in full accord with the history of the right to keep
and bear arms, as previously discussed. It is moreover in accord with
contemporaneous statements and formulations of the right by such
founders of this nation as Thomas Jefferson and Samuel Adams, and
accurately reflects the majority of the proposals which led up to the
Bill of Rights itself. A number of state constitutions, adopted prior to
or contemporaneously with the federal Constitution and Bill of Rights,
similarly provided for a right of the people to keep and bear arms. If
in fact this language creates a right protecting the states only, there
might be a reason for it to be inserted in the federal Constitution but
no reason for it to be inserted in state constitutions. State bills of
rights necessarily protect only against action by the state, and by
definition a state cannot infringe its own rights; to attempt to protect
a right belonging to the state by inserting it in a limitation of the
state's own powers would create an absurdity. The fact that the
contemporaries of the framers did insert these words into several state
constitutions would indicate clearly that they viewed the right as
belonging to the individual citizen, thereby making it a right which
could be infringed either by state or federal government and which must
be protected against infringement by both.
Finally, the individual rights interpretation gives full meaning to the
words chosen by the first Congress to reflect the right to keep and bear
arms. The framers of the Bill of Rights consistently used the words
"right of the people" to reflect individual rights--as when these words
were used to recognize the "right of the people" to peaceably assemble,
and the "right of the people" against unreasonable searches and
seizures. They distinguished between the rights of the people and of the
state in the Tenth Amendment. As discussed earlier, the "militia" itself
referred to a concept of a universally armed people, not to any
specifically organized unit. When the framers referred to the equivalent
of our National Guard, they uniformly used the term "select militia" and
distinguished this from "militia". Indeed, the debates over the
Constitution constantly referred to organized militia units as a threat
to freedom comparable to that of a standing army, and stressed that such
organized units did not constitute, and indeed were philosophically
opposed to, the concept of a militia.
That the National Guard is not the "Militia" referred to in the second
amendment is even clearer today. Congress has organized the National
Guard under its power to "raise and support armies" and not its power to
"Provide for organizing, arming and disciplining the Militia".[65] This
Congress chose to do in the interests of organizing reserve military
units which were not limited in deployment by the strictures of our
power over the constitutional militia, which can be called forth only
"to execute the laws of the Union, suppress insurrections and repel
invasions." The modern National Guard was specifically intended to avoid
status as the constitutional militia, a distinction recognized by 10
U.S.C. Sec 311(a).(p.12)
The conclusion is thus inescapable that the history, concept, and
wording of the second amendment to the Constitution of the United
States, as well as its interpretation by every major commentator and
court in the first half-century after its ratification, indicates that
what is protected is an individual right of a private citizen to own and
carry firearms in a peaceful manner.
References
[1] Charles Hollister, Anglo-Saxon Military Institutions 11-42 (Oxford
University Press 1962); Francis Grose, Military Antiquities Respecting a
History of the British Army, Vol. I at 1-2 (London, 1812).
[2] Grose, supra, at 9-11; Bruce Lyon, A Constitutional and Legal
History of Medieval England 273 (2d. ed. New York 1980).
[3] J. J. Bagley and P. B. Rowley, A Documentary History of England
1066-1540, Vol. 1 at 155-56 (New York 1965).
[4] Statute of Winchester (13 Edw. I c. 6). See also Bagley and Rowley,
supra at 158.
[5] 7 Ed. I c. 2 (1279).
[6] Statute of Northampton (2 Edw. III c. 3).
[7] Rex v. Knight, 90 Eng. Rep. 330; 87 Eng. Rep. 75 (King's Bench, 1686).
[8] E. G. Heath, The Grey Goose Wing 109 (London, 1971).
[9] 19 Hen. VII c. 4 (1503).
[10] 3 Hen. VIII c. 13 (1511).
[11] 64 Hen. VIII c. 13 (1514).
[12] 33 Hen. VIII c. 6 (1514).
[13] Noel Perrin, Giving Up the Gun 59-60 (Boston, 1979).
[14] Jim Hill, The Minuteman in War and Peace 26-27 (Harrisburg, 1968).
[15] Charles Oman, A History of the Art of War in the Sixteenth Century
288 (New York, 1937).
[16] William Blackstone, Commentaries, Vol. 2 at 412 (St. George Tucker,
ed., Philadelphia 1803).
[17] "An Act for Settling the Militia," Ordinances and Acts of the
Interregnum, Vol. 2 1320 (London, HMSO 1911).
[18] 8 Calendar of State Papers (Domestic), Charles II, No. 188, p. 150.
[19] 14 Car. II c. 3 (1662).
[20] Joyce Malcolm, Disarmed: The L
oss of the Right to Bear Arms in Restoration England, at 11 (Mary
Ingraham Bunting Institute, Radcliffe College 1980).
[21] Thomas Macaulay, The History of England from the Accession of
Charles II, Vol. II at 137 (London, 1856).
[22] Phillip, Earl of Hardwicke, Miscellaneous State Papers from
1501-1726, vol. 2 at 407-17 (London, 1778).
[23] J. R. Western, Monarchy and Revolution: The English State in the
1680's, at 339 (Totowa, N.J., 1972).
[24] Journal of the House of Commons from December 26, 1688, to October
26, 1693, at 29. (London, 1742). The Bill of Rights was ultimately
enacted in this form. 1 Gul. and Mar., Sess. 2, c. 2 (1689).
[25] Joyce Malcolm, supra, at 16.
[26] William Hening, The Statutes at Large: Being a Collection of All
the Laws of Virginia from the First Session of the Legislature in 1619,
at pp. 127, 173-74 (New York, 1823).
[27] Id.
[28] William Brigham, The Compact with the Charter and Laws of the
Colony of New Plymouth, 31, 76 (Boston, 1836).
[29] Oliver Dickerson, ed., Boston Under Military Rule, 61, 79, (Boston,
1936).
[30] Steven Patterson, Political Parties in Revolutionary Massachusetts,
at 103 (Univ. of Wisconsin Press, 1973).
[31] See Sprecher, The Lost Amendment, 51 A.B.A.J. 554, 665 (1965).
[32] The most extensive studies of these militia proposals are John
McAuley Palmer, Washington, Lincoln, Wilson: Three War Statesmen (New
York, 1930); Frederick Stern, Citizen Army (New York, 1957); John Mahon,
The American Militia: Decade of Decision 1789-1800 (Univ of Florida, 1960).
[33] Merrill Jensen, ed., The Documentary of History of the Ratification
of the Constitution, vol. 3 at 378 (Madison, Wisc.).
[34] Id., vol. 2 at 508.(p.13)
[35] Walter Bennett, ed., Letters from the Federal Farmer to the
Republican, at 21, 22, 124 (Univ. of Alabama Press, 1975).
[36] Debates and other Proceedings of the Convention of Virginia, ...
taken in shorthand by David Robertson of Petersburg, at 271, 275 (2d ed.
Richmond, 1805).
[37] Noah Webster, "An Examination into the Leading Principles of the
Federal Constitution ...", in Paul Ford, ed., Pamphlets on the
Constitution of the United States, at 56 (New York, 1888).
[38] Johnathan Elliott, ed., Debates in the Several State Conventions on
the Adoption of the Federal Constitution, vol. 2 at 97 (2d ed., 1888).
[39] Merrill Jensen, supra, vol. 2 at 597-98.
[40] Debates and Proceedings in the Convention of the Commonwealth of
Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850); 2 B.
Schwartz, the Bill of Rights 675 (1971).
[41] Documents Illustrative of the Formation of the Union of the
American States, at 1026 (Washington, D.C.: GPO, 1927).
[42] Id. at 1030.
[43] Annals of Congress 434 (1789).
[44] St. George Tucker, ed., Blackstone's Commentaries, Volume 1 at 143
n. 40, 41 (Philadelphia, 1803).
[45] William Rawle, A View of the Constitution 125-6 (2d ed.,
Philadelphia, 1803).
[46] Joseph Story, Commentaries on the Constitution, vol. 2 at 746 (1833).
[47] Act of May 8, 1792; Second Cong., First Session, ch. 33.
[48] Bliss v. Commonwealth, 12 Ken. (2 Litt.) 90, 92 (1822).
[49] State v. Mitchell, (3 Black.) 229.
[50] State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840).
[51] State v. Buzzard, 4 Ark. 18, 27, 36 (1842). The Arkansas
Constitutional provision at issue was narrower than the second
amendment, as it protected keeping and bearing arms "for the common
defense." Id. at 34.
[52] Nunn v. State, 1 Ga. 243, 251 (1846).
[53] Dred Scott v. Sandford, 60 U.S. 691, 705.
[54] The most comprehensive work in this field of constitutional law is
Steven Halbrook, the Jurisprudence of the Second and Fourteenth
Amendments (Institute for Humane Studies, Menlo Park, California, 1979),
reprinted in 4 George Mason L. Rev. 1 (1981).
[55] Cong. Globe, 39th Congress, 1st Sess., pt. 1, p. 474 (Jan. 29, 1866).
[56] Id. at 478.
[57] H.R. Rep. No. 37, 41st Cong., 3d sess., p. 3 (1871).
[58] See generally Halbrook, supra, at 42-62.
[59] Slaughterhouse Cases, 83 U.S. 36 (L873).
[60] United States v. Cruikshank, 92 U.S. 542 (1876).
[61] Presser v. Illinois, 116 U.S. 252 (1886).
[62] Miller v. Texas, 153 U.S. 535 (1894).
[63] United States v. Miller, 307 U.S. 175 (1939).
[64] Id. at 178, 179.
[65] H.R. Report No. 141, 73d Cong., 1st sess. at 2-5 (1933).(p.14)
Appendix
case law
The United States Supreme Court has only three times commented upon the
meaning of the second amendment to our constitution. The first comment,
in Dred Scott, indicated strongly that the right to keep and bear arms
was an individual right; the Court noted that, were it to hold free
blacks to be entitled to equality of citizenship, they would be entitled
to keep and carry arms wherever they went. The second, in Miller,
indicated that a court cannot take judicial notice that a
short-barrelled shotgun is covered by the second amendment--but the
Court did not indicate that National Guard status is in any way required
for protection by that amendment, and indeed defined "militia" to
include all citizens able to bear arms. The third, a footnote in Lewis
v. United States, indicated only that "these legislative restrictions on
the use of firearms"--a ban on possession by felons--were permissable.
But since felons may constitutionally be deprived of many of the rights
of citizens, including that of voting, this dicta reveals little. These
three comments constitute all significant explanations of the scope of
the second amendment advanced by our Supreme Court. The case of Adam v.
Williams has been cited as contrary to the principle that the second
amendment is an individual right. In fact, that reading of the opinion
comes only in Justice Douglas's dissent from the majority ruling of the
Court.
The appendix which follows represents a listing of twenty-one American
decisions, spanning the period from 1822 to 1981, which have analysed
right to keep and bear arms provisions in the light of statutes ranging
from complete bans on handgun sales to bans on carrying of weapons to
regulation of carrying by permit systems. Those decisions not only
explained the nature of such a right, but also struck down legislative
restrictions as violative of it, are designated by asterisks.
20th century cases
1. * State v. Blocker, 291 Or. 255, -- -- -- P.2d -- -- -- (1981).
"The statute is written as a total proscription of the mere possession
of certain weapons, and that mere possession, insofar as a billy is
concerned, is constitutionally protected."
"In these circumstances, we conclude that it is proper for us to
consider defendant's 'overbreadth' attack to mean that the statute swept
so broadly as to infringe rights that it could not reach, which in this
setting means the right to possess arms guaranteed by sec 27."
2. * State v. Kessler, 289 Or. 359, 614 P.2d 94, at 95, at 98 (1980).
"We are not unmindful that there is current controversy over the wisdom
of a right to bear arms, and that the original motivations for such a
provision might not seem compelling if debated as (p.15)a new issue. Our
task, however, in construing a constitutional provision is to respect
the principles given the status of constitutional guarantees and
limitations by the drafters; it is not to abandon these principles when
this fits the needs of the moment."
"Therefore, the term 'arms' as used by the drafters of the constitutions
probably was intended to include those weapons used by settlers for both
personal and military defense. The term 'arms' was not limited to
firearms, but included several handcarried weapons commonly used for
defense. The term 'arms' would not have included cannon or other heavy
ordnance not kept by militia-men or private citizens."
3. Motley v. Kellogg, 409 N.E.2d 1207, at 1210 (Ind. App. 1980) (motion
to transfer denied 1-27-1981).
"[N]ot making applications available at the chief's office effectively
denied members of the community the opportunity to obtain a gun permit
and bear arms for their self-defense."
4. Schubert v. DeBard, 398 N.E.2d 1339, at 1341 (Ind. App. 1980) (motion
to transfer denied 8-28-1980).
"We think it clear that our constitution provides our citizenry the
right to bear arms for their self-defense."
5. Taylor v. McNeal, 523 S.W.2d 148, at 150 (Mo. App. 1975).
"The pistols in question are not contraband. * * * Under Art. I, sec 23,
Mo. Const. 1945, V.A.M.S., every citizen has the right to keep and bear
arms in defense of his home, person and property, with the limitation
that this section shall not justify the wearing of concealed arms."
6. * City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744, at 745 (en
banc 1972).
"As an example, we note that this ordinance would prohibit gunsmiths,
pawnbrokers and sporting goods stores from carrying on a substantial
part of their business. Also, the ordinance appears to prohibit
individuals from transporting guns to and from such places of business.
Furthermore, it makes it unlawful for a person to possess a firearm in a
vehicle or in a place of business for the purpose of self-defense.
Several of these activities are constitutionally protected. Colo. Const.
art. II, sec 13."
7. * City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737, at 738
(N.M. App. 1971).
"It is our opinion that an ordinance may not deny the people the
constitutionally guaranteed right to bear arms, and to that extent the
ordinance under consideration is void."
8. State v. Nickerson, 126 Mt. 157, 247 P.2d 188, at 192 (1952).
"The law of this jurisdiction accords to the defendant the right to keep
and bear arms and to use same in defense of his own home, his person and
property."
9. People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 (1950).
"The second amendment to the constitution of the United States provides
the right of the people to keep and bear arms shall not be infringed.
This of course does not prevent the enactment of a law against carrying
concealed weapons, but it does indicate it should be kept in mind, in
the construction of a statute of such char
acter, that it is aimed at persons of criminal instincts, and for the
prevention of crime, and not against use in the protection of person or
property."(p.16)
10. * People v. Nakamura, 99 Colo. 262, at 264, 62 P.2d 246 (en banc 1936).
"It is equally clear that the act wholly disarms aliens for all
purposes. The state ... cannot disarm any class of persons or deprive
them of the right guaranteed under section 13, article II of the
Constitution, to bear arms in defense of home, person and property. The
guaranty thus extended is meaningless if any person is denied the right
to posses arms for such protection."
11. * Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11 S.W.
2d 678 (1928).
"There is no qualifications of the prohibition against the carrying of a
pistol in the city ordinance before us but it is made unlawful 'to carry
on or about the person any pistol,' that is, any sort of pistol in any
sort of manner. *** [W]e must accordingly hold the provision of this
ordinance as to the carrying of a pistol invalid."
12. * People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922).
"The provision in the Constitution granting the right to all persons to
bear arms is a limitation upon the power of the Legislature to enact any
law to the contrary. The exercise of a right guaranteed by the
Constitution cannot be made subject to the will of the sheriff."
13 * State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921).
"We are of the opinion, however, that 'pistol' ex vi termini is properly
included within the word 'arms,' and that the right to bear such arms
cannot be infringed. The historical use of pistols as 'arms' of offense
and defense is beyond controversy."
"The maintenance of the right to bear arms is a most essential one to
every free people and should not be whittled down by technical
constructions."
14. * State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903).
"The people of the state have a right to bear arms for the defense of
themselves and the state. *** The result is that Ordinance No. 10, so
far as it relates to the carrying of a pistol, is inconsistent with and
repugnant to the Constitution and the laws of the state, and it is
therefore to that extent, void."
15. * In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902).
"The second amendment to the federal constitution is in the following
language: '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.' The language of section 11, article I of the constitution
of Idaho, is as follows: 'The people have the right to bear arms for
their security and defense, but the legislature shall regulate the
exercise of this right by law.' Under these constitutional provisions,
the legislature has no power to prohibit a citizen from bearing arms in
any portion of the state of Idaho, whether within or without the
corporate limits of cities, towns, and villages."
19th century cases
16. * Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878).
"If cowardly and dishonorable men sometimes shoot unarmed men with army
pistols or guns, the evil must be prevented by the (p.17)penitentiary
and gallows, and not by a general deprivation of constitutional privilege."
17. * Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878).
"We believe that portion of the act which provides that, in case of
conviction, the defendant shall forfeit to the county the weapon or
weapons so found on or about his person is not within the scope of
legislative authority. * * * One of his most sacred rights is that of
having arms for his own defence and that of the State. This right is one
of the surest safeguards of liberty and self-preservation."
18. * Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871).
"The passage from Story shows clearly that this right was intended, as
we have maintained in this opinion, and was guaranteed to and to be
exercised and enjoyed by the citizen as such, and not by him as a
soldier, or in defense solely of his political rights."
19. * Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846).
"'The right of the people to bear arms shall not be infringed.' The
right of the whole people, old and young, men, women and boys, and not
militia only, to keep and bear arms of every description, and not such
merely as are used by the militia, shall not be infringed, curtailed, or
broken in upon, in the smallest degree; and all this for the important
end to be attained: the rearing up and qualifying a well-regulated
militia, so vitally necessary to the security of a free State."
20. Simpson v. State, 13 Tenn. 356, at 359-60 (1833).
"But suppose it to be assumed on any ground, that our ancestors adopted
and brought over with them this English statute, [the statute of
Northampton,] or portion of the common law, our constitution has
completely abrogated it; it says, 'that the freemen of this State have a
right to keep and bear arms for their common defence.' Article II, sec.
26. * * * By this clause of the constitution, an express power is given
and secured to all the free citizens of the State to keep and bear arms
for their defence, without any qualification whatever as to their kind
or nature; and it is conceived, that it would be going much too far, to
impair by construction or abridgement a constitutional privilege, which
is so declared; neither, after so solumn an instrument hath said the
people may carry arms, can we be permitted to impute to the acts thus
licensed, such a necessarily consequent operation as terror to the
people to be incurred thereby; we must attribute to the framers of it,
the absence of such a view."
21. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am.
Dec. 251 (1822).
"For, in principle, there is no difference between a law prohibiting the
wearing concealed arms, and a law forbidding the wearing such as are
exposed; and if the former be unconstitutional, the latter must be so
likewise."
"But it should not be forgotten, that it is not only a part of the right
that is secured by the constitution; it is the right entire and
complete, as it existed at the adoption of the constitution; and if any
portion of that right be impaired, immaterial how small the part may be,
and immaterial the order of time at which it be done, it is equally
forbidden by the constitution."(p.18)
The following represents a list of twelve scholarly articles which have
dealt with the subject of the right to keep and bear arms as reflected
in the second amendment to the Constitution of the United States. The
scholars who have undertaken this research range from professors of law,
history and philosophy to a United States Senator. All have concluded
that the second amendment is an individual right protecting American
citizens in their peaceful use of firearms.
Bibliography
Hays, THE RIGHT TO BEAR ARMS, A STUDY IN JUDICIAL MISINTERPRETATION, 2
Wm. & Mary L. R. 381 (1960)
Sprecher, THE LOST AMENDMENT, 51 Am. Bar Assn. J. 554 & 665 (2 parts) (1965)
Comment, THE RIGHT TO KEEP AND BEAR ARMS; A NECESSARY CONSTITUTIONAL
GUARANTEE OR AN OUTMODED PROVISION OF THE BILL OF RIGHTS? 31 Albany L.
R. 74 (1967)
Levine & Saxe, THE SECOND AMENDMENT: THE RIGHT TO BEAR ARMS, 7 Houston
L. R. 1 (1969)
McClure, FIREARMS AND FEDERALISM, 7 Idaho L. R. 197 (1970)
Hardy & Stompoly, OF ARMS AND THE LAW, 51 Chi.-Kent L. R. 62 (1974)
Weiss, A REPLY TO ADVOCATES OF GUN CONTROL LAW, 52 Jour. Urban Law 577
(1974)
Whisker, HISTORICAL DEVELOPMENT AND SUBSEQUENT EROSION OF THE RIGHT TO
KEEP AND BEAR ARMS, 78 W. Va. L. R. 171 (1976)
Caplan, RESTORING THE BALANCE: THE SECOND AMENDMENT REVISITED, 5 Fordham
Urban L. J. 31 (1976)
Caplan, HANDGUN CONTROL: CONSTITUTIONAL OR UNCONSTITUTIONAL?, 10 N.C.
Central L. J. 53 (1979)
Cantrell, THE RIGHT TO BEAR ARMS, 53 Wis. Bar Bull. 21 (Oct. 1980)
Halbrook, THE JURISPRUDENCE OF THE SECOND AND FOURTEENTH AMENDMENTS, 4
Geo. Mason L. Rev. 1 (1981)(p.19)
Enforcement of Federal Firearms Laws From the
Perspective of the Second Amendment
Federal involvement in firearms possession and transfer was not
significant prior to 1934, when the National Firearms Act was adopted.
The National Firearms Act as adopted covered only fully automatic
weapons (machine guns and submachine guns) and rifles and shotguns whose
barrel length or overall length fell below certain limits. Since the Act
was adopted under the revenue power, sale of these firearms was not made
subject to a ban or permit system. Instead, each transfer was made
subject to a $200 excise tax, which must be paid prior to transfer; the
identification of the parties to the transfer indirectly accomplished a
registration purpose.
The 1934 Act was followed by the Federal Firearms Act of 1938, which
placed some limitations upon sale of ordinary firearms. Persons engaged
in the business of selling those firearms in interstate commerce were
required to obtain a Federal Firearms License, at an annual cost of $1,
and to maintain records of the name and address of persons to whom they
sold firearms. Sales to persons convicted of violent felonies were
prohibited, as were interstate shipments to persons who lacked the
permits required by the law of their state.
Thirty years after adoption of the Federal Firearms Act, the Gun Control
Act of 1968 worked a major revision of federal law. The Gun Control Act
was actually a composite of two statutes. The first of these, adopted as
portions of the Omnibus Crime and Safe Streets Act, imposed limitations
upon imported firearms, expanded the requirement of dealer licensing to
cover anyone "engaged in the business of dealing" in firearms, whether
in interstate or local commerce, and expanded the recordkeeping
obligations for dealers. It also imposed a variety of direct limitations
upon sales of handguns. No transfers were to be permitted between
residents of different states (unless the recipient was a federally
licensed dealer), even where the transfer was by gift rather than sale
and even where the recipient was subject to no state law which could
have been evaded. The category of persons to whom dealers could not sell
was expanded to cover persons convicted of any felony (other than
certain business-related felonies such as antitrust violations), persons
subject to a mental commitment order or finding of mental incompetence,
persons who were users of marijuana and other drugs, and a number of
other categories. Another title of the Act defined persons who were
banned from possessing firearms. Paradoxically, these classes were not
identical with the list of classes prohibited from purchasing or
receiving firearms.
The Omnibus Crime and Safe Streets Act was passed on June 5, 1968, and
set to take effect in December of that year. Barely two weeks after its
passage, Senator Robert F. Kennedy was assassinated while campaigning
for the presidency. Less than a week after (p.20)his death, the second
bill which would form part of the Gun Control Act of 1968 was introduced
in the House. It was reported out of Judiciary ten days later, out of
Rules Committee two weeks after that, and was on the floor barely a
month after its introduction. the second bill worked a variety of
changes upon the original Gun Control Act. Most significantly, it
extended to rifles and shotguns the controls which had been imposed
solely on handguns, extended the class of persons prohibited from
possessing firearms to include those who were users of marijuana and
certain other drugs, expanded judicial review of dealer license
revocations by mandating a de novo hearing once an appeal was taken, and
permitted interstate sales of rifles and shotguns only where the parties
resided in contiguous states, both of which had enacted legislation
permitting such sales. Similar legislation was passed by the Senate and
a conference of the Houses produced a bill which was essentially a
modification of the House statute. This became law before the Omnibus
Crime Control and Safe Streets Act, and was therefore set for the same
effective date.
Enforcement of the 1968 Act was delegated to the Department of the
Treasury, which had been responsible for enforcing the earlier gun
legislation. This responsibility was in turn given to the Alcohol and
Tobacco Tax Division of the Internal Revenu Service. This division had
traditionally devoted itself to the pursuit of illegal producers of
alcohol; at the time of enactment of the Gun Control Act, only 8.3
percent of its arrests were for firearms violations. Following enactment
of the Gun Control Act the Alcohol and Tobacco Tax Division was retitled
the Alcohol, Tobacco and Firearms Division of the IRS. By July, 1972 it
had nearly doubled in size and became a complete Treasury bureau under
the name of Bureau of Alcohol, Tobacco and Firearms.
The mid-1970's saw rapid increases in sugar prices, and these in turn
drove the bulk of the "moonshiners" out of business. Over 15,000 illegal
distilleries had been raided in 1956; but by 1976 this had fallen to a
mere 609. The BATF thus began to devote the bulk of its efforts to the
area of firearms law enforcement.
Complaints regarding the techniques used by the Bureau in an effort to
generate firearms cases led to hearings before the Subcommittee on
Treasury, Post Office, and General Appropriations of the Senate
Appropriations Committee in July 1979 and April 1980, and before the
Subcommittee on the Constitution of the Senate Judiciary Committee in
October 1980. At these hearings evidence was received from various
citizens who had been charged by BATF, from experts who had studied the
BATF, and from officials of the Bureau itself.
Based upon these hearings, it is apparent that enforcement tactics made
possible by current federal firearms laws are constitutionally, legally,
and practically reprehensible. Although Congress adopted the Gun Control
Act with the primary object of limiting access of felons and high-risk
groups to firearms, the overbreadth of the law has led to neglect of
precisely this area of enforcement. For example the Subcommittee on the
Constitution received correspondence from two members of the Illinois
Judiciary, dated in 1980, indicating that they had been totally unable
to persuade BATF to accept cases against felons who were in possession
of (p.21)firearms including sawed-off shotguns. The Bureau's own figures
demonstrate that in recent years the percentage of its arrests devoted
to felons in possession and persons knowingly selling to them have
dropped from 14 percent down to 10 percent of their firearms cases. To
be sure, genuine criminals are sometimes prosecuted under other sections
of the law. Yet, subsequent to these hearings, BATF stated that 55
percent of its gun law prosecutions overall involve persons with no
record of a felony conviction, and a third involve citizens with no
prior police contact at all.
The Subcommittee received evidence that BATF has primarily devoted its
firearms enforcement efforts to the apprehension, upon technical malum
prohibitum charges, of individuals who lack all criminal intent and
knowledge. Agents anxious to generate an impressive arrest and gun
confiscation quota have repeatedly enticed gun collectors into making a
small number of sales--often as few as four--from their personal
collections. Although each of the sales was completely legal under state
and federal law, the agents then charged the collector with having
"engaged in the business" of dealing in guns without the required
license. Since existing law permits a felony conviction upon these
charges even where the individual has no criminal knowledge or intent
numerous collectors have been ruined by a felony record carrying a
potential sentence of five years in federal prison. Even in cases where
the collectors secured acquittal, or grand juries failed to indict, or
prosecutors refused to file criminal charges, agents of the Bureau have
generally confiscated the entire collection of the potential defendant
upon the ground that he intended to use it in that violation of the law.
In several cases, the agents have refused to return the collection even
after acquittal by jury.
The defendant, under existing law is not entitled to an award of
attorney's fees, therefore, should he secure return of his collection,
an individual who has already spent thousands of dollars establishing
his innocence of the criminal charges is required to spend thousands
more to civilly prove his innocence of the same acts, without hope of
securing any redress. This, of course, has given the enforcing agency
enormous bargaining power in refusing to return confiscated firearms.
Evidence received by the Subcommittee on the Constitution demonstrated
that Bureau agents have tended to concentrate upon collector's items
rather than "criminal street guns". One witness appearing before the
Subcommittee related the confiscation of a shotgun valued at $7,000.
Even the Bureau's own valuations indicate that the value of firearms
confiscated by their agents is over twice the value which the Bureau has
claimed is typical of "street guns" used in crime. In recent months, the
average value has increased rather than decreased, indicating that the
reforms announced by the Bureau have not in fact redirected their agents
away from collector's items and toward guns used in crime.
The Subcommittee on the Constitution has also obtained evidence of a
variety of other misdirected conduct by agents and supervisors of the
Bureau. In several cases, the Bureau has sought conviction for supposed
technical violations based upon policies and interpretations of law
which the Bureau had not published in the Federal Register, as required
by 5 U.S.C. � 552. For instance, beginning in 1975, Bureau officials
apparently reached a judgment that (p.22)a dealer who sells to a
legitimate purchaser may nonetheless be subject to prosecution or
license revocation if he knows that that individual intends to transfer
the firearm to a nonresident or other unqualified purchaser. This
position was never published in the Federal Register and is indeed
contrary to indications which Bureau officials had given Congress, that
such sales were not in violation of existing law. Moreover, BATF had
informed dealers that an adult purchaser could legally buy for a minor,
barred by his age from purchasing a gun on his own. BATF made no effort
to suggest that this was applicable only where the barrier was one of
age. Rather than informing the dealers of this distinction, Bureau
agents set out to produce mass arrests upon these "straw man" sale
charges, sending out undercover agents to entice dealers into transfers
of this type. The first major use of these charges, in South Carolina in
1975, led to 37 dealers being driven from business, many convicted on
felony charges. When one of the judges informed Bureau officials that he
felt dealers had not been fairly treated and given information of the
policies they were expected to follow, and refused to permit further
prosecutions until they were informed, Bureau officials were careful to
inform only the dealers in that one state and even then complained in
internal memoranda that this was interfering with the creation of the
cases. When BATF was later requested to place a warning to dealers on
the front of the Form 4473, which each dealer executes when a sale is
made, it instead chose to place the warning in fine print upon the back
of the form, thus further concealing it from the dealer's sight.
The Constitution Subcommittee also received evidence that the Bureau has
formulated a requirement, of which dealers were not informed that
requires a dealer to keep official records of sales even from his
private collection. BATF has gone farther than merely failing to publish
this requirement. At one point, even as it was prosecuting a dealer on
this charge (admitting that he had no criminal intent), the Direct
or of the Bureau wrote Senator S. I. Hayakawa to indicate that there was
no such legal requirement and it was completely lawful for a dealer to
sell from his collection without recording it. Since that date, the
Director of the Bureau has stated that that is not the Bureau's position
and that such sales are completely illegal; after making that statement,
however, he was quoted in an interview for a magazine read primarily by
licensed firearms dealers as stating that such sales were in fact legal
and permitted by the Bureau. In these and similar areas, the Bureau has
violated not only the dictates of common sense, but of 5 U.S.C. � 552,
which was intended to prevent "secret lawmaking" by administrative bodies.
These practices, amply documented in hearings before this Subcommittee,
leave little doubt that the Bureau has disregarded rights guaranteed by
the constitution and laws of the United States.
It has trampled upon the second amendment by chilling exercise of the
right to keep and bear arms by law-abiding citizens.
It has offended the fourth amendment by unreasonably searching and
seizing private property.(p.23)
It has ignored the Fifth Amendment by taking private property without
just compensation and by entrapping honest citizens without regard for
their right to due process of law.
The rebuttal presented to the Subcommittee by the Bureau was utterly
unconvincing. Richard Davis, speaking on behalf of the Treasury
Department, asserted vaguely that the Bureau's priorities were aimed at
prosecuting willful violators, particularly felons illegally in
possession, and at confiscating only guns actually likely to be used in
crime. He also asserted that the Bureau has recently made great strides
toward achieving these priorities. No documentation was offered for
either of these assertions. In hearings before BATF's Appropriations
Subcommittee, however, expert evidence was submitted establishing that
approximately 75 percent of BATF gun prosecutions were aimed at ordinary
citizens who had neither criminal intent nor knowledge, but were enticed
by agents into unknowing technical violations. (In one case, in fact,
the individual was being prosecuted for an act which the Bureau's acting
director had stated was perfectly lawful.) In those hearings, moreover,
BATF conceded that in fact (1) only 9.8 percent of their firearm arrests
were brought on felons in illicit possession charges; (2) the average
value of guns seized was $116, whereas BATF had claimed that "crime
guns" were priced at less than half that figure; (3) in the months
following the announcement of their new "priorities", the percentage of
gun prosecutions aimed at felons had in fact fallen by a third, and the
value of confiscated guns had risen. All this indicates that the
Bureau's vague claims, both of focus upon gun-using criminals and of
recent reforms, are empty words.
In light of this evidence, reform of federal firearm laws is necessary
to protect the most vital rights of American citizens. Such legislation
is embodied in S. 1030. That legislation would require proof of a
willful violation as an element of a federal gun prosecution, forcing
enforcing agencies to ignore the easier technical cases and aim solely
at the intentional breaches. It would restrict confiscation of firearms
to those actually used in an offense, and require their return should
the owner be acquitted of the charges. By providing for award of
attorney's fees in confiscation cases, or in other cases if the judge
finds charges were brought without just basis or from improper motives,
this proposal would be largely self-enforcing. S. 1030 would enhance
vital protection of constitutional and civil liberties of those
Americans who choose to exercise their Second Amendment right to keep
and bear arms.
EXHIBIT 15
MASSACHUSETTS MILITIA ROOTS:
A BIBLIOGRAPHIC STUDY
Captain Robert K. Wright, Jr. 116th Military History Detachment Virginia
Army National Guard
19 July 1986
Departments of the Army and the Air Force Historical Services Branch
Office of Public Affairs National Guard Bureau Washington, D.C. 20310
MASSACHUSETTS MILITIA ROOTS
New England's political and social evolution during the seventeenth
century did not occur under tight centralized control. Vague grants and
charters, lack of British supervision, caused in part by a civil war,
and an essentially independent attitude on the part of the various
colonizing groups all contributed to haphazard growth. Territorial
boundaries of the various governmental jurisdictions underwent
substantial change. The first entity to emerge was Plymouth Colony
(1620) which exercised control over what is today the southeastern
portion of Massachusetts. The second was the Massachusetts Bay Colony
which established an outpost in Salem in 1628, and began its main
settlement sequence in 1630. This colony established the largest
territorial claim and backed it up with the most substantial population.
Throughout the early portion of the century it- exercised control over
all of Massachusetts (excluding Plymouth Colony), Maine (which became a
separate governing entity only in 1820), and New Hampshire. Offshoot
colonies which were derived from, but independent of, Massachusetts
followed in Connecticut and Rhode Island. New Haven Colony existed
briefly as a separate entity before being annexed by Connecticut in the
rechartering process following the 1660 Restoration of Charles II; New
Hampshire separated from Massachusetts as a colony shortly thereafter.
Individual towns changed colonies into the early years of the eighteenth
century as commissions finally settled precise intercolonial boundaries.
Prior to the capture of New Netherlands (New York) from the Dutch,
Connecticut and New Haven also exercised jurisdiction over various
settlements in eastern Long Island, and a number of New Englanders moved
to Dutch-sponsored settlements in western Long Island and present-day
Westchester County, further complicating issues.
To properly assess the evolution of the New England militias' force
structure, it is necessary to keep these various changes in mind, and to
track units through the records of various colonies. It is also
important to carefully study the histories of individual communities to
determine the evolution of the town governmental structure, since towns
changed names and often were subdividied, splitting existing companies.
Note well that each colony followed slightly different patterns within
an overall regional context.
Also bear in mind that contemporary records for the New England
jurisdictions of the 17th Century follow the Julian Calendar (old style,
or o.s.), not the Gregorian Calendar (new style, or n.s.) in use today.
The British Empire formally changed systems in September of 1752; the
date 2 September was followed by 14 September. To convert o.s. dates to
n.s., one adds ten (10) days when dealing with the 17th Century, eleven
(11) for the 18th. Also note that New Year's Day in o.s. came on 25
March; in n.s. on 1 January. Therefore, o s. dates falling between 1
January and 25 March give two years, erg. 1628/9, which means on that
date the year was considered to be still 1628, but by modern accounting
it would be 1629. This usage occurred during the 17th Century as
Englishmen realized that most of the rest of Europe had already shifted
to the Gregorian Calendar, and a concession to practical commerce and
diplomacy was necessary. All dates given below are given as they occur
in the records, which is to say in old style.
Bay Colony- 17th Century
GENERAL
On 4 March 1628/9 the Bay Colony received its charter, which included
total control over internal military and political organization. The
governing body (then still located in England) issued its "First General
Letter" of instructions on 17 April of that same year (ref. Records
Mass. 1:37i-39, 386-398) to CPT John Endecott appointing him governor"
of the "plantation" at Naumkeag (Salem) and directing him to undertake
the military organization of the trading post and settlement, which had
been established the previous year. Endecott had travelled to Salem in
1628. At his request weapons and uniforms for 100 men were shipped over
in 1629 to outfit a company organization which corresponded to
contemporary European norms and included 1 captain, 1 lieutenant, 1
ensign, 3 sergeants, 3 drummers, possibly 1 corporal, and 90 or 91
privates. Uniforms were extensive, and included most noticably 100 green
coats bound with red tape, deliberately copying a pattern common in
contemporary operations in Ireland where a form of camouflage was
required. Weapons for the company included 8 cannon for the defensive
fortification; 100 firearms (80 snaphances which were primitive
flintlocks; 10 long fowling pieces; and 10 larger caliber
matchlocks?again an arms mix of very modern content); 100 swords; 83
pole arms (3 halberds for the sergeants; 60 pikes; and 20 half-pikes);
plus 60 corselets (upper torso body armor) (ref. Records Mass. 1:23-6,
31). No exact date for implementation of this organizational table is
preserved, but the absence of detail implies strongly that it was
adopted in 1629, and, since the instructions from internal evidence
indicated that they were merely approving Endecott's recommendations,
the date 17 April 1629 can be considered acceptable as a starting date
for the Salem Company. Note here that Rutmants suggestion that the
company organized in England prior to departure is incorrect; like all
initial ventures of commercial nature, a commercial company organization
was in place prior to shipment, but not a military company.
The General Court moved with the charter to the Bay area in the summer
of 1630 as large migration started. The first General Court (legislative
session) in the New World took place on 25 August 1630 (ref. Records
Mass. 1:73-4; Johnson, Wonder Working Providence, p. 37). On 22 March
1630/1 the General Court establi
shed the first military legislation?a simple requirment for universal
military service phrased as a requirement for all adult males (except
ministers and magistrates) to possess arms; towns were to furnish arms
(and later collect the costs) to indigents (ref. Records Mass. 1:84).
This law implemented a concept fundamental in England since the Assize
of Arms (1185), and marked the first of a long series of laws attempting
to enforce this requirement (for ex. on 12 April 1631 a basic load of
ammunition was specified; see Records Mass. 1:85). Two military veterans
from Europe were hired to train the colony's militia ? Captains Daniel
Patrick and John Underhill (ref. Records Mass. 1:99, 103). Other 1630
residents of the colony with prior service in Europe included Endecott,
Robert Weldon, and William Southcot.
The initial 1630 migration established several different towns in the
Bay proper to go along with the original Salem settlement. Militia
organization followed almost as rapidly. The first explicit reference
which appears in the records, and which therefore is used as a start
date for the original companies is the 12 April 1631 (ref. Records Mass.
1:85) General Court directive "It is ordered, that every captains shall
traine his companie on Saterday in everie weeke". On 7 November 1632
training was cut back to once a month, and on 3 September 1634 to once a
month excluding the agricultural months of July and August, although
captains had the right to require additional individual training up to
three days a week for persons not judged proficient (ref. Records Mass.
1:102, 124). Note that initially some companies were split between
several towns (ref. Records Mass. 1:127), that captains appointed their
noncommissioned officers (ref. Records Ma. 1:109), and that by 1635/6
each company had its own colors which were carried by the ensign (ref.
Records Mass. 1:169).
Significant "firsts" include the 26 July 1631 initial commissioning of
junior officers by the General Court (ref. Records Mass. 1:90); the
first reference to split training (which included reference to the fact
that drill started at 1300 hours) by Captain John Underhill's company
which was spread between Boston, Roxbury, Charlestown, Mystick, and New
Town (ref. Records Mass. 1:90); John Finch and Henry Lynn being the
first men fined, on 7 November 1632, for missing drill (ref. Records
Mass. 1:102); Sergeant Perkins being fined on 1 October 1633 for being
drunk at drill (ref. Records Mass. 1:108); the first integration on 3
September 1634 when an Indian who was residing in Dorchester was allowed
to train with the company there (ref. Records Mass. 1:127); and the
first release of three individuals from the requirement to train because
of their age, although they were still required to keep arms (ref.
Records Mass. 1:133). On 4 March 1634/5 (ref. Records Mass. 1:137) the
Court directed that militia fines be used by the individual companies to
purchase arms and equipment, and on 3 September 1634 it specified (ref.
Records Mass. 1:125) that no one was to fire a weapon on training day
unless under the orders of an officer during marksmanship practice.
Beginning on 14 May 1634 (ref. Records Mass. 1:117, 138) the General
Court asserted its right to appoint all military officers down to the
rank of ensign, although on 4 March 1634/5 it did delegate appointment
authority to a military committee when the court was in recess. This
latter provision accounts for the fact that throughout the seventeenth
century a roster of officers based solely on the Records Mass. will be
incomplete. The Bay Colony's first "combat" came in 1632 (ref. Johnson,
Wonder- Working, 50-51) when Richard Walker was ambushed near Lynn
during a changing of the guard; he was not injured, but was struck twice
by arrows before firing his weapon and scaring the Indians off. (Walker
later became a militia lieutenant, and Johnson applies the title
prematurely in his brief account.)
Colony population grew rapidly during the first decade to an estimated
level of about 20,000 persons. Towns began proliferating, a process
which the General Court controlled carefully. Normally, a group of
citizens would obtain a permit to settle an area, would be granted a
"plantation" with certain conditions attached (such as achieving a fixed
number of resident families within a specified time limit), and
eventually would be granted full township status. Militia organization
followed town evolution. According to the pattern revealed in the
Records Mass. (for ex. 1:160) and other sources, normally the male
inhabitants would first be grouped for mandatory training under an
appointed non-commissioned officer, and then would begin growth towards
full company status under one captain, one lieutenant, and one ensign.
On the other hand, "out-migration" to Connecticut began in 1635,
producing some immediate changes in company organization, with new
arrivals in the colony buying out the improved homesteads of the
departing individuals and communities. This had a particular impact on
Dorchester and Cambridge.
Subsequent to December 1636 (when regiments were created?see next
section) several pieces of legislation were passed to deal with issues
of rank and status. On 9 March 1636/7 (ref. Mass. Records 1:188) the
General Court ruled that although only freemen (a political term meaning
full citizenship individuals) could be elected as officers, all members
of the trained band (i.e. those males required to both own weapons and
to attend the musters) could vote in the company elections provided that
they had taken the oath of loyalty to the General Court known as the
"residents' oath." Voting fraud (balloting was by either colored beans
or names on slips of paper) immediately became a problem, and the first
law punishing it was passed on 17 October 1643 (ref. Records Mass.
2:48). A further clarification issued on 26 May 1647 (ref. Records Mass.
2:191; 3:108) opened the voting process to include other freemen in the
town who were exempted from the requirement to train with the company.
Formats for commissions for the various offices from general officer to
company clerk and statements of their duties were formalized during the
early 1640's, and subsequently refined (ref. Records Mass. 1: 355-6; 2:
63-65, 76-78, 117-20; 3:2-3, 14, 32-36).
On 2 June 1641 (ref. Mass. Records 1:329, 355-6; 2:42-43, 49-50, 267;
3:156, 236; 4 part 1:56) overall command was vested in "Sergeant Major
General" John Humphrey (an English term; the rank was in the process
during the century of being shortened to Major General, and
Massachusetts references use the two interchangeably). On 14 May 1642 a
select committee was established (ref. Records Mass. 2:3) by the General
Court to "putt the countrey in a poture of warre." This started a
procedure of having experts develop new laws to upgrade the defensive
potential of the colony to deal primarily with threats posed by
conditions in England, and only secondarily with threats from the
Indians. Initially, laws on 8 and 27 September 1642 (ref. Records Mass.
2:2026, 2~29, 31) tightened up various topics. A census of all male
inhabitants aged 16 to 60 was ordered on 10 May 1643 and another in 1646
(ref. Records Mass. 2:37, 151; 3:74) to provide better data for decision
makers. Political organization of the colony changed on that same day
with the subdivision of the colony into four counties or shires (ref.
Rewords Mass. 2:38). It contributed to a new approach to the militia
discussed below.
The colony's first comprehensive militia law was passed on 7 September
1643 (ref. Mass. Records 2.42-43). It consisted of ten sections which
confirmed or reworked the earlier piecemeal legislation, and was
intended to parallel many of the features of English shire system of
militia organization. One Sergeant Major General for the colony was
permitted, along with one Shire Lieutenant per shire, and one Sergeant
Major (again an English term which was in the process of being shortened
to Major; Massachusetts used both interchangeably) per shire. The Shire
Lieutenant was an administrative official (also known in English usage
as the Lord Lieutenant; in other colonies in America as the County
Lieutenant); the Sergeant Major the operational leader of the armed
force of the county. The law provided for the Sergeant Major to assume
the duties of the Shire Lieutenant in his absence, and in fact
Massachusetts never appointed any Shire Lieutenants. The Sergeant Major
replaced both the colonel and lieutenant colonel in a regiment. Each
shire or regiment (a usage which indicates that, like the English would
shortly after, Massachusetts assumed that each county would have a
single regiment) was to be divided into companies (by the military
authorities) with several small towns being joined to form a single
company if necessary. As an afterthought, an amendment (ref. Records
Mass. 2:45) said that in such a case one individual in each town was to
be named to supervise training for the town's soldiers. Regiments were
to conduct an annual assembly as a regiment for large-unit training. The
1643 law also relaxed the requirement to own firearms for men who were
training as pikemen, and a reference by the General Court on 18 June
1645 (ref. Records Mass. 3:32-36) indicated that 2/3 of the force would
train with firearms, 1/3 with pikes, a ratio in keeping with
contemporary European professional armies. The September law caused some
confusion, for clarifications were issued on 17 October 1643 and 7 March
1643/4 (ref. Records Mass. 2: 49-50, 56, 62) dealing with electoral
procedures for the new officers. Implied in the laws and the phrasing of
the commissions, and explicitly stated by Johnson (ref. Wonder-Working,
p. 207), was one key point about officers: other than the Major General
who was elected annually at the same time as the Governor and other
colony-wide civil officials, all officers held thei
r commissions until removed for cause by the General Court, until they
petitioned the General Court for a discharge and had the petition
granted, or until they died. Another law passed on 12 August 1645 (ref.
Records Mass. 2:122; 3:41) is the first Massachusetts "minuteman" law,
for it required every company commander to have 30% of his unit ready
with full packs, ammunition, etc., and capable of turning out for active
duty on a halfhour's notice. Other men in the frontier towns were to be
paid to serve as "scouts for ye rainging of ye woods upon ye borders of
their several! towns" (ref. Records Mass. 3:40). Boys aged 10-16, with
their parents' permission, could receive basic training from an officer
or veteran solider on training day beginning in 1645 (ref. Records Mass.
2:99, 3:12).
Additional laws were passed on the 11 November 1647 session of the
General Court. One (ref. Records Mass. 2:221-224) amended and remodified
provisions of the 1645 law to allow each company to set its own dates
for training provided that they trained eight days a year and that they
did not train during the agricultural months of July and August. it also
clarified requirements for which weapons would meet legal standards,
which individuals were required to own weapons but exempted from
training, and company officer election procedures, but restated a
requirement for a court to certify the election results. The second law
(ref. Records Mass. 2:216) stated that time spent marching to and from a
regimental assembly counted in the eight-day training requirement. A law
of 27 October 1648 reduced the regimental drill from an annual
requirement to every third year in regimental rotation (ref. Records
Mass. 2:256; 3:137). A law of 10 May 1648 provided for the organization
of cavalry units, called troops of horse, whose members were exempted
from infantry training and given certain other benefits in exchange for
the expense of furnishing their own horses and more complex equipment.
The law was enacted for a three-year trial period, with minor
modifications on 4 May 1649 and 14 October 1651?the latter extending to
the troops the same election rights enjoyed by the infantry companies
(ref. Mass. 2: 243-4; 3:127-8, 154, 236; 4 part 1: 56).
Yet another comprehensive militia law was enacted on 26 May 1652 to
codify the various features which had crept in through amendments and
special purpose laws (ref. Records Mass. 3:267-70; 4 part 1:86-88). This
one furnished new forms of commissions for the regimental officers;
specified that a company would be entitled to a full set of three
officers only if it had at least 64 members, otherwise it would have
proportional reductions and be commanded by an individual of lieutenant
or lesser rank. Majors had the right to order several small towns
combined to form a single company, but were not required to do so. When
a company reached a strength of 200 or more men, it was to be split into
two or more companies (ideally 100 men each). This law required for the
first time that all minorities (defined in the act as Scotsmen, Negroes
and Indians) living in a town either as settlers or servants of settlers
participate in training as members of companies. The law allowed a
company commander to authorize separate training for groups of men who
lived too far from the center of town to conveniently join with the main
body on training days (the ancestor of a current ARNG concept called
"split training"). It also specified that a major could not march his
regiment outside of his county without the express orders of the General
Court or the Major General, but gave him the right to mobilize the
regiment without orders if under actual attack, and stated that whenever
a regiment had a vacancy in the major's position, the senior captain
would assume acting command. A companion law (ref. Record Mass. 3:265,
286-7; 4 part 1:80, 108) with clarification on 19 October 1652 included
the horse troops (which had to have a minimal strength of 30 men) in the
same general guidelines. Procedures for determining seniority among
officers, and for ruling that an individual could not hold simultaneous
commissions in both the infantry and cavalry were also passed on 19
October, when directions were issued to the company in Boston to divide
itself into four separate companies, a "first" (ref. Records Mass.
3:284-6; 4 part 1: 106-7). A ruling on 3 May 1654 (ref. Records Ma.
3:344; 4 part 1: 183, 186) clarified a question by stating categorically
that horse troops were part of the regiment in whose geographical bounds
they fell.
Benefits to the cavalrymen were reduced somewhat on 14 May 1656, at the
same time that Indians and Negroes were excluded from participating in
the militia and the franchise in company elections was reduced to
freemen and householders who took the oath of residency, although
current unit members were "grandfathered" and allowed to retain their
voting rights (ref. Records Mass. 3:397; 4 part 1:257-8). Lesser
procedural amendments came on 30 August 1653, 11 May 1659, 21 October
1663, 29 April 1668, 19 May 1669, 15 May 1672, 2 October 1678, 28 May
and 15 October 1679, 4 February 1679/8G, and 19 May 1680 (ref. Records
MOOR. 3:320-1; 4 part 1:155-6, 366; 4 part 2:97, 368, 422, 510-1; 5:194,
211-3, 242-3, 261, 266, 290-1, 306). Key among these steps was the one
in 1668 to reassert complete control over commissions (but not to the
initial election) by the General Court. Training was cut back to six
days a year on 31 May 1660 and to four (with a commander at his
discretion allowed up to two additional days) on 28 May 1679 (ref.
Records Mass. 4 part 1:420; 5:211-13). A war scare with the Dutch led to
23 May 1666 amendments to stiffen weapons-owning requirements, and to
clarify (restated on 7 October 1674) that the Major General was
responsible for supervising non-regimental companies (ref. Records Mass.
4 part 2:295; 5:16). The modernization of weaponry continued on 10
October 1666 when body armor for pikemen was ruled unnecessary, and, in
a key step which placed the colony well ahead of contemporary European
armies, on 24 May 1677, after the bloody experience of King Philip's
War, when every soldier was required to own a flintlock firearm (ref
Records Mass. 4 part 2:319; 5:135).
The colony's first offensive military operation came in 1635 when a
force of 120 men, drawn out from the militia but not by the mobilization
of intact units, under CPT John Endicott, assisted by CPTs Underhill and
Turner, sailed to Block Island to punish local Indians for the murder of
a trading group (unrelated to the Bay Colony). In 1637, as a result of
escalating tensions, full warfare erupted between the New Englanders
(Connecticut, the separate trading outpost at Saybrook, Plymouth, and
the Bay Colony) and Narragansett and Mohegan allies on the one side, and
the Pequot tribe on the other. The Pequots, the most powerful southern
New England tribe, were centered in present-day New London County,
Connecticut. All colonies used provisional forces rather than mobilizing
intact militia units to carry out the two offensive operations required
to destroy the Pequots as a military entity. In the initial action ("the
fort fight") CPT Underhill was present as an individual volunteer and 40
Bay Colony men under CPT Patrick covered the withdrawal of the main
party (Connecticut, Saybrook, and allied Indians). In the second ("the
swamp fight"), the Bay furnished 120 men under CPTs Israel Stoughton,
Patrick and Trask, ENS Davenport, and SGTs Palmer, Davis, and Jeffries
(ref. esp. Mason; Orr; Vaughan; and Records Mass. 1: 191-197). Similar
procedures were followed in much smaller expeditions to the
Narragansetts in 1650 and 1654 (ref. Records Mass. 3:218-9, 359; 4 part
1:35, 207), and in large planned, but never executed, attacks on the
Dutch in Manhattan in 1664 and 1673 (ref. Records Mass. 4 part 2:12~3,
167, 572-5). King Philip's War (1675-77) was a total war for survival,
and involved extensive operations by both provisional and standing
militia units which are documented best in Records Mass. 5 and Bodge,
Soldiery. Numerous secondary sources cover the war from both a broad
perspective and a town-study view.
FORCE STRUCTURE
The Bay Colony's original company organizations are slightly vague,
since the men of the colony trained and carried out guard duty from the
day the ships anchored. The following dates of organization for the
original town trained bands are therefore somewhat arbitrary, and
reflect the first legal reference (which in every case is worded in such
a way as to make clear that a unit was in fact in being).
Salem dates from 17 April 1629 under Captain John Endecott. This date is
based on the letter of general instructions. By 1634 Endecott had been
succeeded as company commander by Captain William Trask. (Ref. Records
Mass., 1:386-98, 85, 93, 95, 120; Johnson, Wonder - Working, 19-22;
Shelley, Underhill, 133-4.)
The companies in the Bay proper, covering the 1630 settlements, are all
ruled to have an organization date of 12 April 1631, based on the law
requiring training passed by the General Court. These companies were:
Captain John Underhill's (Boston and Roxbury); Daniel Patrick's
(Watertown, Medford and Newtown); Richard Southcot's (Dorchester); and
John Endecott's (Salem). Note that Underhill and Patrick had dual status
as both company commanders and as hired "technicians." By 1635 the force
had grown to 800 or so men in at least five companies: Underhill's
(Boston); Patrick's (Newtown); CPT John Mason's (Dorchester); CPT
William Trask's (Salem) and CPT Nathanial Turner's (Saugus).
In December 1636, with the colony facing war with the Pequots, a
regimental organization was adopted for the colony's approximately 1,500
men. Under the overall command of the Governor as "chiefe general!"
three geographically-based permanent regiments were set up, each
commanded by a colonel and a lieutenant colonel, an
d each with a paid training officer (mustermaster). All regiments and
companies were directed by the General Court to hold elections of
officers prior to the next Court session and to report the results. Note
that these units predate by six years the regiments of England. The act
to execute this organization was passed on 13 December 1636 (ref.
Records Mass. 1:186-187). The organization of 13 December 1636 with the
results of commissions issued on 9 March 1636/7 (ref. Records Mass.
1:186-187) was as follows:
[Charts and Tables Ommited]
Accounts of exactly what was accomplished by this act tend to be
misleading and reflect unfamiliarity with force structuring concepts.
The law, like other Bay Colony organizational laws during the century,
lists the towns contributing manpower to the regiment, not the
companies. The most frequently cited modern source for this information
is Rutman's dissertation (pp. 675-678); the older secondary source is
G.M. Bodge's Soldiers of King Philip's War (reprinted 1896 from a long
series of articles in the New England Historical and Genealogical
Register), pp. 471-472. Note that Rutman incorrectly switches the
regimental names; Bodge, on the other hand, assigns numerical
designations to the regiments without any justification. Accurate
reconstruction of the nature of the internal organization of the
regiments requires a full review of all six volumes of Records Mass.,
combined with the other primary and secondary (biographical) sources
listed below. The most illuminating of these accounts is the 1654 London
publication (reprinted at Andover in 1867) of Captain Edward Johnson's
Wonder-Working Providence, since Johnson was a company commander in the
1640's. It must be used with some caution, however, for he uses military
terminology in both technical and theological contexts, and applies rank
titles that men held in 1650 to earlier points in their lives. The
listing of officers given above is based on all the sources.
The three existing regiments changed names when the shires (counties)
were created as political entities. Most secondary sources have
incorrectly stated that the redesignation was effective on 10 May 1643
(o.s.) when the political law passed (ref. Mass Records 2:38); actually
a separate law was passed on 7 September 1643 (o.s.) to bring the
regiments into conformity (ref. Mass. Records 2:42-3). This
interpretation is verified by the subsequent actions of the General
Court on 17 October 1643 and 7 March 1643/4 (ref. Mass Records 2:49-50,
56) which directed the vacating of old regimental commissions to allow
new elections. Therefore, on 7 September 1643 the South Regiment became
the Suffolk Regiment, the East the Essex Regiment, and the North the
Middlesex Regiment.
Secondary sources have had the most organizational trouble with the
remaining geographical areas of the colony, misidentifying regimental
organization and missing key facts and dates. The fourth shire, Norfolk
County, created on 10 May 1643 was specifically exempted from regimental
organization by the 7 September 1643 act. Inhabitants of the towns
forming Norfolk continued in a separate, non-regimental status under the
general supervision of the commander of the Essex Regiment
(geographically the closest senior officer) for nearly three decades
(ref. Mass. Records 2:226; 4pt2:295; Johnson, Wonder-Working, 190-195).
On 31 May 1670 (ref. Mass. Records 4pt2:452) the General Court ruled
that the population of Norfolk and the adjacent Piscataqua region had
achieved sufficient density to justify establishment of a regimental
organization and therefore created the Norfolk Regiment, appointing CPT
Robert Pike as its Sergeant Major. The Norfolk Regiment was disbanded on
4 February 1679/80 when Norfolk County was "extinguished" (ref. Mass.
Records 5:263-4) and its territory (except for a few towns transferred
into Essex County) recognized as a separate colony (New Hampshire).
The fifth shire, York County, was created on 18 May 1653 for the tract
beyond (i.e. north and east of) the Piscataqua River (ref. Mass. Records
4pt1:124-6). The towns comprising this shire were similarly left in
unregimented status under the supervision of a designated individual
(ref. Mass. Records 3:409; 4pt1:273; 4pt2:75-76,295,370-3,452). As in
the case of Norfolk, population density had to reach a critical mass
before higher echelon military organization was permitted. On 31 May
1671 the York Regiment came into being (ref. Mass. Records 4pt2:486 --
note that this is one year to the day after Norfolk gained regimental
status). York during this period included the area that today is the
state of Maine.
On 7 May 1662 a sixth shire, Hampshire County, was created (ref. Mass.
Records 4pt2:52) extending intermediate governmental organization to
towns in the western part of the colony previously directly subordinate
to the General Court. Once again the companies from these towns were
explicitly left outside of any regimental organization until population
density grew (ref. Mass. Records 4pt2:295). On 31 May 1671 the Hampshire
Regiment was established by law under John Pynchon as Sergeant Major
(ref. Mass Records 4pt2: 486,488). This date is the correct organization
date of the 104th Infantry.
The seventh early shire was created as Devonshire County on 7 October
1674 (ref. Mass Records 5:16-20, 236) at the request of the inhabitants
of the "eastern parts" of present-day Maine living in the vicinity of
Kennebec, Pemaquid, Saggedehock, Damerill Cove, and the vicinity. It
never received regimental status during the period under consideration.
Troops of Horse were authorized as distinct companies within regiments
by legislation passed on 10 May 1648 (ref. Mass. Records 2:243-4;
3:127-8, 344; 4pt1:183, 186; also see discussion in first section.) The
first subdivision of companies within a single town took place on 19
October 1652, when the Boston company was split into four companies in
implementation of a 26 May 1652 change in the law (ref. Mass. Records
3:285; 4pt1:106).
The colony's confidence in and understanding of its military capability
was contained in a report furnished to authorities in London on 16 May
1665 (ref. Mass. Records 4pt2:203):
"Our militia is ordered into three regiments of foote, besides some
supernumary companies, under three majors & one major generall, together
with our troopes, consisting of about fower thousand ffoote & ffower
hundred horse, tho possibly more may be in the lists, our orders
requiring all men to be armed & listed."
Marginal notes in the record book kept by the General Court indicate
that the horse were organized in four troops at this time.
A major reorganization of the colony's armed forces took place on 13
October 1680 (o.s.), incorporating lessons-learned during King Philip's
War and reacting to the population changes caused by that conflict. The
act of the General Court (ref. Mass. Records, 5:294-296) has caused
secondary source authors considerable trouble, largely because it left
two regiments (Hampshire and York) untouched, and made no reference to
the recently disbanded Norfolk Regiment. The colony's total force under
the reorganization consisted of
Devonshire's separate companies and eight regiments: Hampshire (104th
Inf); York; and two each formed by the division of Suffolk (MAJ Thomas
Clark), Essex (MG Dennison), and Middlesex (MAJ Daniel Gookin). The new
organization (based on towns) was as follows:
Boston Regiment (MAJ Thomas Clark) (101st FA)?Boston (8 companies) and a
Troop of Horse (CPT Thomas Brattle; from Suffolk Regiment)
Suffolk Regiment (MAJ William Stoughton)?Dorchester; Roxbury; Weymouth;
Hingham; Dedham; Braintree; Medfield; Hull; Milton; Other small villages
in the rest of the county (NOTE: especially in all probability
Wrentham); and a Troop of Horse at Hingham (lately raised)
1st (Lower, eastern) Middlesex Regiment (MAJ Daniel Gookin) (182d
Inf)?Watertown; Charlestown (2 companies); Cambridge; Cambridge Village
and Woburn (probably typo; are same place); Reading; Malden; and a Troop
of Horse (CPT Thomas Prentice)?(NOTE: Medford, org. as town 1630 is missing)
2d (Upper, western) Middlesex Regiment (MAJ Peter Bulkley) (181st
Inf)?Concord; Sudbury; Lancaster; Groton; Billerica; Chelmsford;
Marlborough; Dunstable; and a Troop of Horse (CPT Thomas
Hinchman)?(NOTE: Missing Natick organized 1650; Mendon 1667; Brookfield
1673; Sherborn 1674; and Framingham 1675)
1st (south) Essex Regiment (MG Dennison) (101st Egr Bn)?Salem; Lynn;
Marblehead; Ipswich (3 companies); Gloucester; Wenham; Salem Village
(i.e. a second company in Salem); Beverly; and any troop of horse from
this geographical area
2d (or north) Essex Regiment (MAJ Nathanael Saltonstall) (101st Egr
Bn)?Newbury (2 companies); Rowley; Salisbury; Haverhill; Andover;
Topsfield; Amesbury; Bradford; and anv troop of horse from this
geographical area?(NOTE: Missing Manchester organized 1645)
In 1689 (per mss. copy in 101st Engineer jacket) Essex was regoranized
into three regiments: 1st (Salem, Lynn, Marblehead, Beverly,
Manchester); 2d (Ipswich, Gloucester, Rowley, Wenham, Topsfield,
Boxford); and 3d (Newbury, Salisbury, Haverhill, Andover, Amesbury,
Bradford).
This study does not include information on the Plymouth Colony, whose
records were separately edited by Shurtleff; research in those materials
is required to adequately deal with claims by the 211th Field Artillery
to early history. Data on individual companies is arranged in the
following section. However, note that in addition to the militia
organization, there were several other formations of a military nature.
One was the permanent fortification system based upon the "Castle" in
Boston Harbor. A paid staff (both full and part-time) was authorized for
it beginning on 1 March 1630/1, with the officer in charge being
eventually referred to as the "Captain of the Castle." (Refs. Records
Mass. 1:83, 105, 123-5, 165, 332; 2:107-
8; 3:1; 4 part 2:276-8 and numerous other citations throughout). The
second consisted of a prototype volunteer militia organization which was
established on the model of the London Artillery Company, and which was
originally called the "Military Company of the Massachusetts" although
it is more commonly known as the "Ancient and Honorable Artillery
Company." The "artillery" is a seventeenth century military technical
term and refers to training rather than to cannon. The company was
formed to provide for training for the elite within the colony who would
go on to (or who actually did) command within the militia system. It was
chartered on 13 March 1638/9 (ref. Records Mass. 1:250-1).
Basic Sources Consulted: Bodge, Soldiers in King Philip's War; Cook,
Counties, Cities and Towns in Massachusetts; Johnson, Wonder-Working
Providence; Mason, Brief History of the Pequot War; Millar,
"Independency and Militia" (Ph.D. Dissertation); Orr, editor, History of
the Pequot War; Rutman, "Militant New World" (Ph.D. Dissertation);
Shelley, John Underhill; Shurtleff, Records Colony Massachusetts Bay (5
vols. in 6); Vaughan, Puritans and Indians; Regimental histories at US
Army Center of Military History (DAMH-HSO) submitted in interwar years
?NB: Complete research would have required examination of all published
town and county histories
ROBERT K. WRIGHT, JR. ?CPT, AGC, VaARNG ?19 July 1986
EXHIBIT 16
George Washington Law Review
Note, 57 (1988): 328.
Posted for Educational use only. The printed edition remains canonical.
For citational use please visit the local law library or obtain a back
issue.
THE MILITIA CLAUSES, THE NATIONAL GUARD, AND FEDERALISM: A
CONSTITUTIONAL TUG OF WAR*
In June of 1987, Minnesota Governor Rudy Perpich filed suit in federal
district court challenging the federal government's power to send
members of the Minnesota National Guard to Honduras.[1] The district
court rejected Perpich's claims.[2] In February of 1988, Massachusetts
Governor Michael Dukakis filed a similar action that also failed.[3] The
Court of Appeals for the First Circuit affirmed the Massachusetts
district court in a one sentence opinion.[4] A panel on the Eighth
Circuit reversed the ruling of the Minnesota district court,[5] but that
decision was recently vacated and rehearing en banc was granted.[6]
This Note discusses the constitutional foundations of the modern
National Guard system, the current statutory scheme that governs the
Guard, and some of the problems presented by that scheme. This Note
examines Supreme Court decisions regarding the scope of constitutional
protections afforded state power in the federal system and suggests a
judicial solution to the friction between the states and the federal
government over the governance of the modern militia. Part I outlines
the history and current status of this federal-state militia.
Specifically, this Part Summarizes the militia's constitutional and
statutory history, about which a dearth of legal scholarship exists.[7]
It illustrates that there has been a steady erosion of the state role
over the last two hundred years, resulting in a current imbalance in the
distribution of power. Part II concludes [Page 329] that the current
imbalance might not be in the national security interest, and that,
contrary to the opinions of at least three federal courts, it might be
unconstitutional. Part III examines the Constitution and pertinent
Supreme Court decisions in which the Court has attempted to define the
delicate balance between federal and state power. The discussion centers
mainly on questions of federal jurisdiction and interpretation of the
constitutional language giving Congress the power to regulate interstate
commerce. It discusses the Perpich and Dukakis decisions and examines
the difficulties posed by states' assertions of sovereignty in light of
increasing federal power. Finally, this Note concludes that state
challenges to federal power over the National Guard are well- principled
and could provide the Supreme Court with an opportunity to make a
refreshingly clear statement on the meaning and constitutional
dimensions of state sovereignty in our federal system.
I. The Militia
Every state in the union has a militia.[8] Laypersons know the militia
as the 'National Guard,' an inaccurate and oversimplified rubric for an
institution that has several different personalities depending on the
laws under which it is operating.[9]
Theoretically, a state's militia is an independent military force. It is
a part of the executive department of the state and may be used for
police augmentation, civil disturbance control, natural disaster relief,
or any other lawful purpose pertaining to security of the state and its
citizens.[10] The governor is the commander-in-chief of the militia and
is generally responsible for its operations.[11]
The United States also has a militia.[12] With the exception of
exclusively federal reserve units,[13] the federal militia is composed
of the militia of the states when properly called into active federal
ser-[Page 330]vice in times of war or national emergency.[14] To
understand how this system has evolved requires an understanding of its
constitutional, legislative, and military history.
The militia[15] is an institution older than our Constitution.[16] Prior
to 1787, it was a product of English common law and colonial and
military custom.[17] Since 1787, and increasingly in modern times, the
militia has been a product of federal and state statutes enacted
pursuant to a division of powers and responsibilities embodied in
Article I of the Constitution.[18] Although the modern militia system is
a product of the Constitution and statutes, the federal courts have
rarely addressed the broad range of constitutional issues which it
presents.[19]
A. The History of the Militia Clauses
The constitutional basis for the modern militia system is found in
Article I, section 8, which states:
The Congress shall have Power . . .;
[(clause 15)] To provide for calling forth the Militia to execute the
Laws of the Union, suppress insurrections and repel Invasions;
[(clause 16)] 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 Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress;
. . .
To make all Laws which shall be necessary and proper for carrying [Page
331] into Execution the foregoing Powers.[20]
Serious negotiations over the Militia Clauses began at the
Constitutional Convention on August 8, 1787, two months after Alexander
Hamilton unsuccessfully urged complete federal control over the
militia.[21] Opponents searched for a compromise, reasoning that ' [i]f
[the states would] not give up the power over the whole, they probably
[would] over a part as a select militia.'[22]
The first compromise reserved from federal regulation the appointment of
officers. The Convention members agreed that officering would be the
exclusive province of the states.[23] This compromise was motivated by
the states' fear of federal power in the union. In assuring that the
officering provision would preserve state power, Hamilton wrote:
What reasonable cause of apprehension can be inferred from a power of
the Union to prescribe regulations for the militia and to command its
services when necessary, while the particular states are to have the
sole and exclusive appointment of officers? If it were possible
seriously to indulge a jealousy of the militia upon any conceivable
establishment under the federal government, the circumstance of the
officers being in the appointment of the states ought at once extinguish
it. There can be no doubt that this circumstance will always secure to
them a preponderating influence over the militia.[24]
It appears, however, that reserving to the states the appointment of
officers was not alone considered a sufficient safeguard against federal
domination. When the subject of militia training came before the
Convention, the draft language reserved authority over training to the
states.[25] This language ultimately prevailed, but not without some
opposition. Opponents moved to strike the provision, arguing that
because training authority was not specifically vested in the federal
government by means of the 'organize, arm, and discipline' language, the
provision was unnecessary.[26] The motions to strike the language failed
as the majority decided to be unequivocal: the federal government would
not have all power over militia mat-[Page 332]ters.[27] The Article I
language remains unchanged and is the constitutional basis for both
federal and state power over the militia.[28]
B. Federal Regulation of the Militia
The Organized Militia System of the United States is governed, in part,
by federal statute.[29] Since the beginning of the Union the system has
steadily evolved from one of almost no federal regulation to a modern
system of virtually complete federal regulation and control.[30]
Prior to the Revolutionary War, each colony had an organized militia
whose main purpose was to maintain the public peace and protect
colonists from Indian raids and other external security threats.[31] The
Revolutionary War saw the defection en masse of these militia, popularly
known as minutemen, to the Continental Army.[32] With independence won,
however, the Continental Army was disbanded; the only military forces
maintained thereafter were the independent militia of the several states
and a few federal guards maintained for essentially housekeeping details
at Fort Duquesne and West Point.[33]
The Act of September 29, 1789 (Act of 1789),[34] enacted by the First
Congress, recognized the need for 'the establishment for the troops in
the service of the United States.'[35] This legislation was the
statutory birth of the Regular Army, a completely federal, standing army
primarily designed to respond to serious military weaknesses of the
Confederation.[36] By implication from the language of Article I,
however, the states remained free to maintain their own militia.[37]
[Page 333]
Not until the Federal Militia Act of 1792[38] did Congress attempt to
codify a national policy regarding the militia. In effect, this Act did
little more than establish a continuing military census to provide a
role of ready reserves that could be called into federal service should
the need arise.[39] This Act, for the first time, created a uniform age
of military obligation[40] and presumed that each state would establish
company-sized districts.[41] District Captains were to be responsible
for enrolling all obligated males and were to provide for the annual
muster.[42] This system resulted primarily in implementing a massive
military manpower bookkeeping system rather than establishing a true,
in-place and nationwide reserve force.[43]
As to the relationship between the militia and the Regular Army, the Act
of 1789 authorized the President to draft the militia into federal
service.[44] In practice this provision proved unnecessary because great
numbers of state units volunteered to enlist in the federal service when
needed.[45] Militiamen simply came forward and were placed in the
federal ranks.[46] The bureaucratic strictures of the modern recruiting
and personnel management systems were nonexistent. Units ranging from
single companies to entire regiments were employed in the federal
service for combat in various conflicts, from the War of 1812 through
the Spanish-American War in 1898. This system remained relatively
undisturbed until 1903.[47]
In 1903, Congress enacted the Dick Act,[48] which for the first time
codified certain aspects of the system that had developed in rather
haphazard fashion under state law.[49] Viewed by many as the birth
certificate to the modern system, the Dick Act represented the first
real exercise of Congress's long-dormant power to organize the
militia.[50] Moreover, this Act signified the beginning of the demise of
the old, essentially state- controlled, system.[51]
The Dick Act labeled the state militia 'National Guards,' the first
[Page 334] statutory usage of that term.[52] This Act also authorized
federal funds for equipment and training[53] and provided the states
with training by federal regulars.[54] Further, it required the states
to drill their units a specified number of days per year, to open their
account and property books to federal auditors, to subject training and
encampments to federal inspection, and to obtain prior approval for the
expenditure of federal grants-in-aid.[55]
The Dick Act was followed by the Militia Act of 1908,[56] which provided
that the National Guard be available for federal use in the United
States as well as outside its borders.[57] In 1912, however, the Judge
Advocate General of the U.S. Army held that, given the limiting language
of Article I, section 8, clause 15,[58] there was no constitutional
authority for overseas use of the militia.[59] In the same year, the
United States Attorney General concurred in this opinion.[60]
The significance of these events was undercut, however, by Congress's
next major attempt to take control over the militia. In 1916, Congress
enacted the National Defense Act (NDA),[61] a legislative response to
the gathering storm of the First World War. Through the NDA, Congress
created a vehicle to circumvent the Attorney General's opinion that
deemed overseas use of the National Guard unconstitutional.[62] This Act
gave the President the authority to draft any member of the militia into
the federal service.[63] Accordingly, entire units were 'drafted.'[64]
The NDA further overhauled the system by authorizing additional
appropriations for state militia units.[65] Its enactment, however, was
attended by much acrimony from both the states and the Regular Army.
While the states would be burdened anew with increased federal
requirements and control, the Regular Army would be saddled with
administering the system.[66] The result was a dramatic [Page 335]
increase in federal control over the militia. The most dramatic aspect
of this increased control was the President's new power to draft state
Guard members as federal reserve troops, thereby relieving Congress of
the constraints imposed by clause 15.[67] In addition, the NDA
authorized the President, through the Secretary of War, to promulgate
rules (1) describing the number and kind of units each state would be
required to maintain,[68] and (2) establishing standards for
enlistment.[69] The NDA replaced the state codes with the National
Military Code,[70] and, perhaps most importantly, the NDA required units
receiving federal monies to acquire federal approval before any officer
could be commissioned.[71]
This last provision effectively wrested from the states control over
officer-appointment standards,[72] and has yet to be challenged on
constitutional grounds, perhaps because of its conditional spending
character.[73] The NDA further cemented federal control over state [Page
336] militia by providing that the states could not maintain any troops
other than those directed by the President.[74]
In 1918, the provision allowing the federal government to draft National
Guardsmen was challenged on constitutional grounds and was upheld in the
Selective Draft Law Cases.[75] In these cases, consolidated for appeal,
several members of state National Guards challenged the draft law
asserting that insofar as the NDA permitted them to be drafted for
service overseas, it violated clause 15, which confers on Congress the
right to call 'forth the Militia to execute the Laws of the Union,
supress insurrections and repeal Invasions.'[76]
The Court began its opinion by noting that '[t]he highest duty of the
citizen is to bear arms at the call of the nation.'[77] The Court then
proceeded to discuss the history of Congress's use of the draft to carry
out its national defense responsibilities under the Army Clause.[78]
Reasoning that the Militia Clauses were not to be read as a limitation
on Congress's power when that power needs to be most expansive, the
Court held that the power of Congress 'was expressly granted by the
Constitution . . . in the power to declare war, which means a power to
carry on the war successfully, i.e., with the means necessary.'[79]
Interpreting clauses 15 and 16 in this way, the Court approved of
wartime drafting of citizens who were also members of the militia, even
though such a scheme came dangerously close to allowing Congress to use
the militia abroad in the face of clause 15. Thus, in order to allow
Congress to defend the nation in war, the Court gave birth to the legal
fiction of Guards qua Reserves. In later years this scheme would be
incorporated into federal statutory provisions.[80] [Page 337] The dual
status of the National Guard was imminent.[81]
More of the same heightened standards, combined with increased federal
appropriations, characterized the Army Reorganization Act of 1920.[82]
Under this Act the Militia Bureau (the Bureau), the federal agency
primarily responsible for executing militia policy, gained significantly
more control over the state guards.[83] The Bureau was empowered to
control the geographic location of units, to require annual physical
examinations of all personnel, and to dictate virtually every important
operational detail involved in running the units�from the specifications
of horsehoe sizes to the tactical and strategic doctrines of units.[84]
Further, it broadened the President's power, permitting him to activate
guardsmen in an 'emergency' declared by Congress.[85]
The Act of June 15, 1933[86] created the National Guard of the United
States composed of the portions of the state Guards in the service of
the United States. This enactment was the inception of the federal
militia as a statutory entity. As a practical matter, during peacetime
the National Guard was a fiction.[87] During war, this organization came
to life and became part of the modern army of the United States.[88]
This Act required all guardsmen to take a dual oath to both the federal
and relevant state governments,[89] and made, in essence, every state
guardsman a federal reservist as well.
C. The Modern Militia
The Armed Forces Reserve Act of 1952[90] codified the modern system.
This Act provided that guardsmen could be called out by the President
for fifteen days out of each year for any reason, subject to the consent
of the Governor.[91] This provision was the first incursion of the
federal government into peacetime mustering of the [Page 338] state
militia. Presumably, the gubernatorial veto provision ensured
consistency with the state powers described in the Militia Clauses.
Logically, there were only two circumstances under which the President
was authorized to call forth the militia. The militia could be used
either (1) for 'core militia' functions, that is, in a manner
contemplated by the language or structure of clause 15, such as
repelling invasions or during times of war or national emergency, or (2)
when a Governor expressly consents, thereby protecting the institutional
interests of the state.
A literal approach to the language of clauses 15 and 16 would have
prevented the national government from employing the militia in those
core functions�war and national emergency�for which it was intended by
the Farmers. On the other hand, completely overlooking the dual power
structure that the language subsumes would have vitiated state power
over the militia. This state of the law could have remained the solution
palatable to all parties, but it was not to last.
After the end of American involvement in Vietnam, President Nixon
decided to end the selective draft.[92] Throug
h a series of resolutions and appropriations, Congress began a program
of downsizing the standing military force.[93] An increased emphasis was
placed on the reserve components to provide for first line reserve
capabilities.[94] This approach was the genesis of the all-volunteer
army and the 'Total Force' concept.[95] The Total Force is composed of
the Regular Army,[96] the United States Army Reserve,[97] and the
National Guard of the United States.[98] This last entity is the
umbrella organization of all state militia or National Guards when on
active federal service.
The all-volunteer Army of the early 1970s greatly reduced the manpower
of the Regular Army portion of the Total Force.[99] The dynamics of the
United States' security interests and military requirements, however,
simultaneously expanded and changed over the last two decades. Increases
in terrorism, the escalation of civil and guerrilla wars in nations
important to U.S. security interests, and the increasing political
popularity of nuclear arms control and [Page 339] reduction have placed
expanding and varying demands on our readily deployable, conventional
military forces.[100]
These demands, in light of the increasing political and budgetary
constraints of the 1980s, have often been met by an increased emphasis
on the less costly reserve components of the Total Force.[101] In
particular, the resources of the state National Guards�which possess the
lion's share of the reserve component combat arms[102]�have been tapped.
The state Guards have steadily become a major building block of Pentagon
strategies, not only for protracted conventional and nuclear conflict
but also for nonconventional, low- intensity conflicts as might occur in
Central America or the Middle East.[103] Today, eighteen of the
twenty-four Army divisions available in the event of war are provided in
whole or in part by the state Guards.[104] Similarly, seventy-three
percent of the nation's air defense interceptor forces, thirty-four
percent of its tactical airlift capability, and twenty-five percent of
its tactical fighters are Air National Guard assets.[105] Today's
National Guards are no longer a reserve of units, personnel, and
equipment that, after a period of appropriate training, could provide
stand-by augmentation to active duty forces. They have become first line
defensive and offensive components of the Total Force.[106]
This fundamental change in our national defense strategy has not been
solely quantitative. As part of its program, Congress increased
readiness standards, expanded the qualitative requirements for troops
and units that each state is required to maintain, and augmented the
missions that these units would be required to perform.[107] Unable to
fund these requirements, and in some cases unwilling to administer these
programs themselves, many of the states have ceded virtually all of
their authority to federal control, a wholesale retreat from the
state-controlled character of the militia that had once prevailed.[108]
[Page 340]
II. Federal-State Tensions�Central America and the Montgomery Amendment
The natural result of this state of affairs is that, as the nation's
military needs have become less conventional, the military's role in
non-war foreign policy execution has enlarged. Relatedly, as the state
militia have become an increasingly larger component of the defense
structure, they have become involved in federal policy execution on both
a national and international scope.[109] The most recent federal
legislation, embodied in the Montgomery Amendment of 1986,[110] removes
the requirement of gubernatorial consent for federal training of the
National Guard and exemplifies the friction that has been inescapably
produced by this state of affairs. With one set of policy goals and a
particular philosophy on the use of military power, the federal
political branches have control over state military institutions whose
governments might disagree with either the federal policy goals or the
philosophy. The debate surrounding this legislation and the litigation
challenging it highlight some of the difficulties inherent to this scheme.
A. Montgomery Amendment and State Interests
In the early 1980s, the Reagan Administration federalized many Guard
units for training.[111] This event seems unremarkable on its face. This
'federalization' is, with the consent of the Governor, the normal
procedure for most Guard units' two week annual training. Some of these
training missions were conducted, however, in friendly nations that
bordered either unfriendly nations or nations involved in civil or
guerilla wars�wars in which the Administration had an interest in seeing
a particular side prevail.[112]
More than a few observers criticized these missions as imprudent use of
military force. Most notable among the objectionable missions were those
scheduled to take place in Honduras.[113] Honduras is a primary staging
area for the so-called 'Contras,' a military force actively seeking the
political and military demise of the Nicaraguan Sandinista government.
Disagreeing with the Administration's policy, several state governors
refused to permit their troops to be sent on this mission.[114] Other
governors, while not refusing to send [Page 341] their troops, expressed
their reservations about the policy.[115] In direct response to this
situation, Congress enacted the Montgomery Amendment,[116] which
effectively removed the provision in the federal law that required
gubernatorial approval for federalization for any purpose other than war
or national emergency.[117] The law did not literally remove the
provision, but stated that a governor could not withhold consent based
upon 'any objection to the location, purpose, type, or schedule of such
training.'[118]
To the casual observer, and to many not so casual federal policymakers,
this system seems to be an appropriate response to the military and
political realities of twentieth-century America. The nation needs a
strong defense, but few would argue that maintaining a large standing
army of full scale war capability is politically or economically
desirable. Each state has a reserve military force of its own growing
out of the historical need for police augmentation in internal security
and natural disaster situations. Because these assets are already in
place and because the states' day-to-day needs for these assets are
arguably less immediate and compelling when compared to the 'pioneer'
days of Indian wars and factional rebellions, why not integrate these
resources into the national defense? Short of abolishing the Guards by
constitutional amendment and creating one national federal reserve,
which seems politically unrealistic, federalizing these state
institutions seems the efficient and logical compromise. It strikes the
golden mean between two extremes�of a nation relying on the neutrality
and stability of its neighbors for security, and a nation whose growth
and prosperity is handicapped by the crushing weight of an enormous
military machine.
As with any compromise, however, some interests are ill-served. This
result is inevitable because compromise is inherent to decisionmaking.
Policymakers must weigh the possible harms of a compromise against the
benefits. Yet, the Constitution requires that some [Page 342] harms be
given greater weight than others. Although the harms incurred by
injuries to individual liberties protected by the Bill of Rights are
those most frequently requiring special consideration, the Constitution
also requires that harms to the institutions of government be given
special weight.[119] These harms necessarily include those to the
interests of the three coordinate branches of the federal government.
But they also include harms to the institutional interests of the states
as principal providers of those protections, services, and policies for
which all governments are constituted.[120]
A significant number of state interests are impinged by the current
National Guard system. One category of harm to state interests is
derived from the broad postulate of state sovereignty, and includes the
notion that states should not be coercively involved, and should not be
allowed to involve themselves, in U.S. foreign policy. This category of
harm is judicially recognized and has been the subject of the Dukakis
and Perpich litigation.[121] A second category of harm, perhaps more
subtle, stems from the contravention of basic efficiency, delegation,
and decentralization values of managerial and military science.[122] The
first category, in a very real way, might militate for judicial
correction. The second category of harm, although perhaps more
appropriately considered through legislative or executive process,
nonetheless provides additional material to be considered by the
judiciary. Judges might determine that those structural-managerial
interests are what really underlie a constitutional provision. Given
such a finding, few judges would ignore a holding that serves those
interests. In any event, federal legislators should reconsider these
harms in their oversight of the federal management of the Guards. Such
consideration might lead to legislative reforms that would make the
Guards more effective and efficient while also avoiding the
constitutional problems presented by the current scheme.
The trend toward plenary federal control arguably offends Article I,
section 8, clause 15, specifically with respect to training and
officering. The Supreme Court has held that with respect to personnel
status, political control, and for the purposes of jurisdiction, the
[Page 343] National Guard is the modern militia reserved to the
states.[123] Although in certain circumstances the Court has held that
the Guards are federal in nature, these decisions have generally
supported a dual power structure and have limited the federal character
to some very narrow circum
stances.[124]
The current system is characterized by federal control over almost all
facets of the Guards. There is almost no area of operation in which the
Guards are not constrained by federal control.[125] The Officering
Clause has been completely vitiated by the 'federal recognition' system:
no unit receiving federal funds or support may place an officer in its
table of organization unless that officer has been federally
recognized.[126] Federal recognition, which means the officer must meet
standards identical to federal active duty officers, must also be
'renewed' upon promotion in rank or position.[127] This scheme supplants
the state's role in choosing and installing state officers, for no
state's Guard can accomplish federally mandated missions without making
use of federal funding and support.
State control in administering matters such as training, personnel,
logistics, doctrine, and military justice has been eliminated by a
system of federal conditional spending.[128] This purse string has been
used to put the states in a 'catch-22' situation�retain autonomy and
lose funding or accept funding and submit to federal control. In
addition, legislation prohibiting the states from keeping 'troops'
except as directed by the President has been read to apply to the
militia.[129] Although the term 'Troops' in the Constitution was
probably intended to apply to standing armies,[130] this seemingly
unfounded application of the prohibition to the militia means that even
if the states could afford to maintain their militia in accordance with
federal standards without federal assistance, they would be forbidden to
do so. Moreover, today the state National Guards are organized into
federal divisional structures requiring the maintenance [Page 344] of
state units that have no purpose other than to support a national
defense strategy.[131] For example, what possible use could a state have
for a Military Intelligence Battalion whose primary mission is to
collect and analyze tactical and strategic battle information?
This state of the law ignores important interests of the states.
Specifically, it prevents states from independently, and some would say
effectively, administering a state institution to meet state
requirements. In addition, the states are now forced to participate in
and contribute to a foreign policy with which they may vehemently
disagree, and the development of which the Constitution denies them any
meaningful political mechanism to change. In a more general sense,
however, the current law prevents the states from legitimately acting as
states. It intrudes upon that zone of governmental activity presumably
reserved to the states in our federal system. Such harm to the states
becomes crucial when analyzing the constitutionality of the current
statutory scheme.
B. The Continuing Vitality of Policy Choices of the Farmers
The overarching problem is how far the National Guard system has strayed
from what the Framers originally intended for the militia. This
observation is not to say that all law should be bound by the Framers'
intentions.[132] The concern here is one of policy. The wisdom of the
policy underlying the state-federal military institution originally
envisioned by the Framers is as apparent today as it was two hundred
years ago.
The Framers intended that the militia would be governed by a dual system
of federal-state control during peacetime with the bulk of the power in
the hands of the state. The Federalist papers and the records of the
Federal Convention indicate that most Framers were wary of the dangers a
large standing army would pose to the rights of individuals and the
rights of the states as sovereigns.[133] They might also have been
concerned about the foreign relations problems that could attend a
militarily adventurous executive.
In response to those concerns, the Framers allowed the states to retain
almost complete control over the militia during peacetime. This control
included areas of military operations such as mustering, officering,
training, and maintaining logistical support for training
operations.[134] Indeed, it is plausible that the Framers never intended
that the state militia provide the front line defense of the [Page 345]
Republic, and they most certainly did not consider that the militia
would ever be sent abroad.[135]
Under the system contemplated by the Framers, Congress would regulate
the militia during peacetime only to the extent necessary to provide a
smooth transition into federal service if needed as a reserve in time of
war. This regulation would include devising plans for mobilization;
coordination for rapid arming and equipping for combat operations; a
unified system of standards for equipment, munitions, and discipline;
and a tactical doctrine that the states could use in their own planning
and training.[136] No evidence suggests that the Framers envisioned
federal control or administration over the day-to-day running of the
militia. Additionally, the Framers possibly intended that the militia
not be subject to extensive federal regulation prior to a declared war
or other national emergency, reasoning that the resulting delay in the
federal military build-up would serve as a deterrent to overly swift
entrance into wars of aggression or imperialism.[137] The essentially
defensive orientation of the militia would still provide adequate
defense at the nation's borders.
The Framers realized that under some limited circumstances it would be
necessary to have state military forces under federal command. Thus,
once the militia or a portion thereof was properly called into active
federal service, Congress would have plenary authority over the
militia.[138] By Article I mandate, the militia is properly called into
active federal service only to 'execute the Laws of the Union, suppress
insurrections, and repel Invasions.' Read in the broadest sense, this
language covers only those emergency situations posing imminent danger
to life or property, whether from [Page 346] some foreign power or from
some internal force uncontrolled or uncontrollable by the states. These
core militia functions remain the only legitimate use of state military
power by the federal government.
The system envisioned by the Framers reflects a balancing of equally
important interests. On the one hand, the Framers wished to ensure the
national security through a strong military system. Undeniably, there
exists a perpetual need for a strong national defense system for which
the militia system should serve as a dependable backup, and some measure
of federal control is necessary to ensure uniformity and readiness. On
the other hand, there is a need and a justification from an efficiency
standpoint to retain military forces at the state level. The Framers
believed in the efficacy of military units tied to the local
community.[139] Military forces controlled by local communities promote
esprit de corps and political stability in support for the military and
allow for the benefits of the English Regimental system in which
grandfathers, fathers, and sons served in the same units.[140] In
addition, a canon of military leadership, which has recently become
fashionable in business schools, is the 'power-down' theory that
mandates that as much responsibility and command discretion as possible
should be delegated to the lower levels in order to facilitate
initiative and self-sufficiency.[141] Finally, there are many occasions
when the states need a local force, controlled by the state with
well-exercised state chains-of-command, to aid police in carrying out
the police power function�a function deemed primarily within the
province of the states.[142]
From both a constitutional and a policy perspective, a problem exists.
To what degree the current legal doctrines governing federal-state
relations can provide a solution is the question that must be answered.
III. Current Federalism Doctrines and the Modern Militia
A recurring theme in constitutional decisionmaking is the balancing of
interests between the states as institutions and the federal government
as the supreme power in the Union. Thus far the states have generally
found little protection in the courts. Such protection should be
expanded because the increasing domination of the [Page 347] federal
government offends the federal structure embodied in the Constitution
and in many cases results in unresponsive and inefficient government action.
A. Problems in Constitutional Line-Drawing: Federal Jurisdiction and the
Commerce Clause
Questions regarding the proper division of power between the federal and
state courts provide perhaps the greatest challenge for the lawyer,
judge, and legal scholar. Theories of jurisdiction are, indeed, the
wellspring from which flow many of the Supreme Court's seminal cases on
power in the constitutional system.[143] The genesis of many of the
concepts underlying state sovereignty are also bound up in the
jurisdictional cases.
Marbury v. Madison[144] provided the Supreme Court's initial view of the
federal judicial power in relation to the acts of coordinate braches,
namely, the power to review congressional or executive acts and rule on
their constitutionality.[145] But the jurisdictional cases relevant to
the scope of federal power over the National Guard are those dealing
with the power of the federal judiciary over the states. State sovereign
immunity,[146] abstention,[147] exhaustion in federal habeas corpus
proceedings,[148] and the Erie doctrine[149] are [Page 348] all examples
of judicial doctrines that seek to draw a line between the powers of the
federal courts and state sovereigns. These lines have been drawn less
clearly than those drawn between the coordinate branches, reflecting the
more complex interests at stake.[150]
These cases deal with complex procedural and jurisdictional matters, but
through all of them runs a common theme
: respect is due the power of a state to control its own affairs and
citizens, unless important and overriding federal interests are
identified. This respect is necessary to allow the states to develop
policy independently and effectively and to provide the 'nuts and bolts'
of what the citizenry expects of 'government.'[151] In addition, even
when important federal interests are at stake, the Court has been
willing to engage in a balancing of interests that includes
consideration of such factors as equity, comity, and federalism.[152]
Although this theme has sometimes been boldly pronounced and at their
times only alluded to in dicta, it nevertheless pervades the Court's
approach to federal-state judicial relations.[153]
This seemingly amorphous doctrine finds its roots in the records of the
Convention[154] and in the Federalist papers.[155] The weaknesses
identified in numerous areas of government under the Confederation drove
the formation of the new Union.[156] Nonetheless, the disadvantages of a
large central government�to the rights of both individual and
states�still weighed heavily in the minds of many of the Framers.[157]
Today such fears might not be justified. The political power of the
states is great and indeed the federal courts, not [Page 349] the state
governments, are viewed as the vanguard protectors of individual
rights.[158]
So what justifies restraint of federal power in the face of state
rights? Perhaps the government closest to the people, most easy to
reach, and most accessible to the governed, should in some cases be
favored over the one farthest away, least accountable, and least
accessible. The American tradition of governing by town meeting and
petitioning city hall might not be a political reality at the state
level today, but the strictures of required fiscal responsibility,[159]
the policing responsibility, and the general mandate that state
government provide services for daily life while not overtaxing the
populace's resources are ever increasing realities. These realities
still justify respect for the state as a sovereign and maintenance of
constitutionally protected state rights.
These same arguments and policies find application in another line of
cases perhaps more applicable to the militia question. To a lesser
extent than in the jurisdictional cases, the domestic power of Congress
vis-a-vis the states has been the subject of much judicial inquiry.[160]
Although some litigation and legislation involving the taxing and
spending powers have generated theories of governmental power,[161]
through the Commerce Clause the Court has found a forum for examining
state sovereignty as a limitation on congressional power.[162] [Page 350]
The doctrines limiting the federal legislative power in favor of state
interests have been less striking than in the judicial sphere.[163]
Beginning with NLRB v. Jones & Laughlin Steel Corp.,[164] the
twentieth-century Court has accorded great deference to Congress's power
under the Commerce Clause. Under current Commerce Clause analysis, the
courts uphold congressional action if there is any rational basis upon
which Congress could find a relation between its action and interstate
commerce.[165] The conventional wisdom has been, at least between 1937
and 1976, that there were no external constitutional limitations on the
commerce power based on considerations of federalism.[166]
The Constitution places very few express limitations on congressional
power,[167] although the reservation to the states provided by the
Militia Training and Officering Clause is one example.[168] But it was
under just such a provision, the Tenth Amendment, that the Court was
willing, in 1976, to strike down a 1974 amendment to the Fair Labor
Standards Act in National League of Cities v. Usery.[169] Usery evidence
a search by the Court for a workable way to identify those acts of
Congress that treat the states in a manner inconsistent with their
presupposed status under the federal scheme. Although Usery was grounded
in the Tenth Amendment, it is instructive on the broader concepts of
state sovereignty and is the clearest recent statement on what has
become known as the 'New Federalism.'[170]
In striking down federally mandated minimum-wage-and-hour standards for
municipal transit workers, the Court held that Congress could not
exercise power in a fashion that impairs the States' 'ability to
function effectively in the federal system.'[171] This case was a
resurrection of the Tenth Amendment as an affirmative [Page 351]
limitation on federal power, an interpretation it had not generally
enjoyed in prior cases,[172] and one which would not survive.[173]
Subsequent cases in which the Court attempted to interpret Usery in
light of fifty years of expansive Commerce Clause jurisprudence resulted
in a 'traditional state functions' test.[174] The difficult application
of Usery and its ultimate demise lay in the Court's inability to develop
a principled way to distinguish between those functions that are
necessary for a state's independent and meaningful existence and those
that are not.[175]
Finding the search futile, the Court flatly overruled Usery in Garcia v.
San Antonio Metropolitan Transit Authority.[176] In Garcia, Justice
Blackmun, who had provided the crucial fifth vote in Usery, but who had
separately warned that he was 'not untroubled by certain possible
implications of the Court's opinion,'[177] joined the four Usery
dissenters in ruling that the exercise in line drawing presented by
Usery made it 'difficult, if not impossible, to identify an organizing
principle' by which traditional state functions could be distinguished
from those that are not.[178] Justice Blackmun's shifting position on
this issue reflects the Court's continuing search for the true meaning
of state sovereignty in the federal system.
In a case presenting a factual scenario more analogous to that posed by
federal control over the state militia, the Court in FERC v.
Mississippi[179] considered whether the federal government may condition
continued state regulation on the state's acceptance of federal
regulatory provisions.[180] In that case, Mississippi challenged a
system in which continued state regulation of an area under the Federal
Energy Regulatory Commission's (FERC's) jurisdiction was conditioned
upon a state's consideration of recommendations made by FERC.[181] The
Court declined to strike down the measure because, although it did
involve federal intervention in a state program [Page 352] essential to
the state's sovereign existence�regulation of the state's energy
utilities�it was also voluntary. The harms to the state were only
attendant to a regulatory scheme that was optional.[182] Because the
state could consider the federal policies and then proceed on its own
course, the interference with state sovereignty was minimal.[183] Such a
ruling allows Congress to accomplish through administrative pressure and
informal, yet powerful, institutional influence what presumably Congress
could not do through express statutory language.
In a case involving the Age Discrimination Employment Act's application
to state and local governments, the Court again expressed its concern
for state sovereignty. In EEOC v. Wyoming,[184] the Court considered the
independence of the 'state qua state.' The Court refused, however, to
strike down application of federal hiring standards to the state because
the state could still pursue its objectives merely by complying with
reasonable federal standards.[185] The federal regulation allegedly did
not affect the state's role in making employment policy decisions but
only prescribed the manner in which those policies were to be
achieved.[186] Thus, the states were allowed to pursue their own
interests while only minimally burdened by federal regulation. The Court
chose not, however, to specify the level of 'procedural requirements'
that would constitute a substantive interference meriting judicial
correction.
Many commentators point out that the theories of power and its division
that lie just beneath the surface of the Constitution indicate that no
affirmative restrictions on congressional power vis-a-vis the states are
contained in the Constitution.[187] Rather, implied limitations are
effected by internal political checks guaranteed by the power of the
states and their institutional interests within the federal
branches.[188] Opponents point out, however, that the interest of the
states might no longer be adequately represented in the federal
legislative process and that the judicial branch has a role in
protecting states' 'rights' that underlie the federal structure of the
Union.[189]
The federalism question is therefore reduced to its essential core and
is of compelling constitutional significance. State have an in-[Page
353]herent interest that is tied to every function that they perform.
This is the interest of the state to be free from the restraint of
intrusive federal control when attempting to meet the demands of its
citizenry in the very real and necessarily pragmatic world of local
government. This interest is most needful of protection in state
executive branch areas, such as the control over the militia. Professor
Tribe nicely summarizes the parameters of the problem as follows:
If the institutional interests of state governments in limiting federal
intrusion into hitherto local spheres of concern are ordinarily taken
into account in congressional actions, then the political process of
federal legislation may be counted on to incorporate a consistent check
against the full use of congressional power. Conversely, since
federalism is one of the postulates of the constitutional structure, if
state institutional interest prove to be inadequately represented in
Congress, then the Supreme Court's contemporary commerce clause doctrine
would have to be considered deficient to the extent that it leaves state
autonomy unprotected.[190]
A logical extension of this theory is that when state interests are
effectively disregarded by an act of Congress, as in the overseas
training debate,[191] and thus the interests are per se inadequately
represented, then the Court must step in to ensure that representation.
To date, the Court has not embraced such a theory.
To be sure, the Court has been searching for the proper forum for an
expression of some variation of this theory, to wit: FERC, EEOC, and
Usery. Apparently, however, these cases have lacked a certain mix of
factors that would find a majority of the Court comfortable with a
vindication of state power as over federal action. Although these cases
have implicated both state and federal interests, that seems to be
missing is a sufficient basis in the text of the Constitution, a
workable doctrinal approach to line-drawing, or an egregious enough harm
to a structural postulate of the Constitution to merit invalidation of a
federal act.
The Court would require, it seems, a specific recognition in the
Constitution itself of a function or power that is to be exercised by
the states in their role as sovereigns but that is nevertheless also
susceptible to federal regulation. Further, the Constitution would need
to indicate that this very scheme of dual control is an intended
objective of the system rather than some unwanted yet necessary
byproduct. The power over the state militia and the militia's role in
the national defense present just such a power relationship. [Page 354]
B. Constitutional Protection for the State Militia
Could challenges to the militia system present the right set of facts,
the right judicial chemistry to allow the Court to develop a sound
general theory of federal-state relations? Two federal district courts
and one court of appeals have declined to do so.[192] One court of
appeals, however, has accepted a challenge to federal regulation but on
a narrow ground that does not embrace the broad postulates of
federalism.[193] As more and perhaps higher courts grapple with such
challenges, perhaps that will change.[194]
The difficulties with the Court's prior attempts to develop a workable
theory of state sovereignty are legion. The Court's decision to overrule
Usery reflects a judicial discomfort in striking down a congressional
act based on the amorphous notion of a state's 'traditional governmental
functions.'[195] Similarly, financially coerced participation in a
federal program that is truly 'optional,' or regulatory schemes that
require states' compliance with only minimal procedural requirements,
are constitutionally permitted.[196] In addition, prudential doctrines,
such as standing and the political question doctrine, have also acted as
obstacles to the vindication of states' rights.[197]
The militia system and challenges to the training and officering schemes
imposed by the federal government rise above these problems. This
particular mix of competing interests provides an appropriate forum that
a majority of the Court could embrace to provide a clear statement that
the federal government in this area has encroached too far into state
government territory.
1. On the Merits
The Constitution's structural provisions regarding the militia describe
an institution of federal and state dimension. Specific textual
reference is made to both state and federal powers that are to be
exercised in governing this institution.[198] Both actors are to have a
[Page 355] role in its governance. Over time the federal government has
through various means increased its domain over the institution,
resulting in a proportional decrease in state power.[199] Serious and
judicially cognizable harms to state interests,[200] as well as to the
general efficacy of the militia,[201] have resulted from this imbalance.
Moreover, a group of litigants�the governors or state legislators of the
various states�has standing to raise challenges to specific aspects of
the system that go too far in intruding on state powers.[202]
The arguments available to these litigants appeal to a wide range of
judicial approaches to decisionmaking. For the textualist, there is
clear language in Article I defining the state's role against the
broader power of the federal government.[203] To appeal to the
structuralist, there is the notion that the national government is
responsible for foreign affairs and should not force the states to give
their imprimatur to a foreign policy in which they have no voice. Also,
for the structuralist there is the concept that the government may only
use the militia for its core functions. For the doctrinalist, there are
the notions of federalism and state sovereignty. Although unable alone
to provide the basis for prior affirmative vindications of states'
rights against Congress, these approaches to constitutional
interpretation might work in tandem to carry the day.
Two different federal courts of appeals have addressed the overseas
training issue. In 1987, Rudy Perpich, the Governor of Minnesota,
challenged the constitutionality of the Montgomery Amendment.[204] In
upholding the Amendment, the district court relied primarily on a
construction of the Constitution's militia provisions that narrowly
defined the state's power and expansively defined the federal role.[205]
The court reasoned that the gubernatorial consent provisions of prior
federal statutes covering federalization for training were merely
congressional niceties; they were not constitutionally mandated, and
what Congress had the power to give it could easily take away.[206] The
court did not, however, consider the broader approach that embraces
notions of federalism and state sovereignty. When the case eventually
reached a three judge panel of the Eighth Circuit, however, the district
court was re-[Page 356]versed.[207]
The panel made hardly any reference to the district court's opinion, but
instead analyzed the case as if before a court for the first time. The
opinion began with a comprehensive survey of the Framer's intent and
looked to the text of the Militia Clauses, interpreted by the Selective
Draft Law Cases. The panel found that in order for Congress to call
forth militia there must be a stated 'national exigency.' Because there
was no such statement made with the enactment of the Montgomery
Amendment, the panel held the Amendment unconstitutional.[208]
The panel also rested its conclusion on what it deemed a consistent
deference by Congress to the states' control over the militias prior to
the enactment of the Montgomery Amendment�a questionable proposition at
best.[209] Thus casting the Montgomery Amendment as an aberration, the
court avoided speaking to the untrammeled encroachment of the federal
government into this area of state power. Although the conclusion of the
Eighth Circuit panel's opinion is the preservation of the gubernatorial
consent provision, the analysis is devoid of any reference to state
interests or the notion of federalism as a constitutional protection
that might be applied to federal-state relations in a general way. In
this sense, the panel did not go far enough. On the other hand, perhaps
the panel acted appropriately. After all, it better suits the role of a
federal court of appeals to be conservative both in the instances and
the manner in which it strikes down federal legislation.[210]
Ultimately, it is the Supreme Court that should make broad
pronouncements with such great national ramifications as that called for
by this Note.
A Massachusetts federal district court took a slightly different
approach than the district court in Minnesota when Governor Michael
Dukakis challenged the Reagan Administration's plan to send state
guardsmen overseas.[211] In that case, Governor Dukakis primarily argued
that because the guardsmen never cease to be militiamen, the constraints
of the Militia Clauses always apply.[212] On its face, reasoned the
court, this logic renders unconstitutional the dual enlistment
system.[213] This system is clearly a vehicle for circumventing the
language of clause 15 delineating the circumstances under which the
President can call out the militia. Because the dual enlistment system's
constitutionality was upheld in the Selective Draft Law Cases,[214] the
court concluded that the Militia Clause could not work [Page 357] as an
independent check on federal power over the militia.[215] The First
Circuit affirmed stating merely that it adopted the reasoning of the
district court.[216]
The whole underlying context of the Selective Draft Law Cases was the
gathering storm of the First World War. This atmosphere fostered a
reading of clauses 15 and 16 that was strained, at best, in order to
further a general interest embodied in the structure of those clauses.
The United States' use of the militia in that conflict was of a
character similar to those core militia functions embodied in clause 15,
which the Framers conceived would be appropriate for federal use.[217]
No such statement can be made about the use of national guardsmen for
peacetime 'training' in politically and militarily sensitive overseas
areas. The Dukakis court declined to consider that while the dual
enlistment system ensures that Congress can make all laws necessary and
proper for the raising of armies and defense of the nation during
wartime�even to the extent of using the Guards overseas�gubernatorial
consent for peacetime training ensures that, short of national
emergency, a state's power over the Guard is not circumscribed.
Preserving this gubernatorial consent strikes the appropriate balance
and allows both the state and federal governments to act in ways
consistent with what the Framers conceived would be their proper powers
and duties.
2. Prudential Considerations
The difficulties in striking down a provision like the Montgomery
Amendment or the federal recognition system for officers are man
y.[218] The prudential doctrines that the Supreme Court has used to
avoid hurling constitutional thunderbolts, what Professor Bickel has
called the 'Passive Virtues,'[219] could very well work to prevent
judicial review of the merits. The opinions by the Dukakis and Perpich
courts did not raise these issues; it seems that their reliance on
narrow grounds to decide the merits allowed them to avoid making
sweeping constitutional pronouncements that would trigger such concerns.
As more and higher courts deal with these issues perhaps broad inquiries
into the federalism and structural concerns, as outlined above, will
become inevitable. First, the political question doctrine [Page 358]
might stand in the way of the Court getting involved in this struggle
between the states and the federal government.[220] Second, because
training overseas implicates the nation's foreign policy, states may not
have standing to challenge the federal law. Third, and perhaps most
importantly, the traditional deference shown Congress and the President
in the area of national defense is considerable; there is perhaps no
policy area over which the political branches are considered to have
such plenary control.[221]
The political question doctrine does not preclude judicial resolution of
the current controversy over the National Guard. This doctrine is
prudential and discretionary and is used by a court to preserve its own
institutional legitimacy.[222] The doctrine should not be construed to
impede the vindication of fundamental constitutional values. It has not
stood in the way of federal protection from encroachment on individual
rights by the state,[223] and similarly should not be used to allow
impermissible federal encroachment on state authority.[224] Although the
jurisprudence of states' rights is not settled, state sovereignty is a
recurring theme and the Court is aware that this area is sorely in need
of judicial attention.[225] Be-[Page 359]cause the standards defining
the institutional interests of the states under the Constitution are
unclear does not mean that the political question doctrine should be
used to prevent their clarification.
In a theory that finds its roots in those considerations that give rise
to the political question doctrine, Professor Wechsler dismisses the
concept of judicial vindication of states rights.[226] He argues that
those state interests that would be judicially considered are already
part of the decisionmaking process at the legislative level; whatever
protections are necessary for the state's maintenance of an independent
and meaningful existence are already in place and the states make
successful use of those protections.[227] However, because federal
legislators represent individuals, it does not necessarily follow that
Congress is the best forum for defining the constitutional rights of
individuals.[228] Similarly, because the states are represented by
individual members of Congress does not mean that courts should leave
that body to define the rights of the states.
Some critics argue that the states, in objecting to the overseas
training missions in politically sensitive countries, are impermissibly
meddling in the conduct of foreign affairs.[229] The states never have
and never could have the power to conduct the foreign affairs of the
nation. Does the federal government have the right, though, to force the
states to give their institutional imprimatur, indeed provide their most
basic executive resources, to a foreign policy program with which the
states may vehemently disagree?
Surely states are required to give full support to federal programs
under the Supremacy Clause[230] and for the preservation of the Union.
But the Framers, through the militia provisions and the Second
Amendment, sought to avoid the same situation that results when an
adventurous federal government is allowed to force the states to provide
its military resources for anything other than national defense or
emergency.[231] The constitutional structure tacitly postulates
limitations that prevent the maintenance of a standing [Page 360] army
in excess of true national security needs.[232] The state militia should
be reserved to the states consistent with those postulates. The states
should not be forced to commit their resources to foreign affairs or
national security policies with respect to which the federal government
cannot politically justify committing its own resources, and with regard
to the decision to involve American military forces the states have no
input.[233]
Perhaps most difficult to answer are the questions about the traditional
deference given the political branches when it comes to national
defense. Well settled is the principle that during times of war Congress
and the Executive may act in a way that would unquestionably be
unconstitutional under other circumstances.[234] The more difficult
question arises when the federal government acts in a way inconsistent
with its powers under the Constitution, during a time when the nation is
not at war but when the possibility or the threat of armed conflict is
the justification for the act. When the acts of Congress are aimed
towards arming, training, and supervising the armed forces, Congress is
acting in one of its most unbridled and unrestricted capacities. Still,
in the area of peacetime regulation no one would argue that there are no
affirmative limitations on Congress's power over what has come to be
known as national security issues.
The fact that we live in a dangerous world and that Congress has the
responsibility for keeping that world at bay cannot mean that the Court
should abdicate its duty to define the basic constitutional pillars that
support our national defense system. Congress has wide discretion but
not so wide that it may ignore the dictates of the document that is the
source of its power and which grants it that discretion. The structure
of our national military forces and those of the states is defined by
Article I,[235] and that article reserves powers to the states over
their respective militia, powers that Congress is today abridging.[236]
Federal discretion over national defense issues cannot go so far. [Page 361]
Conclusion
The National Guard is the modern militia reserved to the States.[237]
This principle is as valid today as two hundred years ago. The statutory
framework that attempts to make the state Guards into a standing federal
reserve force is out of step with that fundamental principle. Some
professional military personnel and those in the business of advising
them believe that the militia concept is an anachronism that is itself
out of step with the realities of the Nuclear Age.[238] Perhaps so.
Perhaps what is really needed is an abolition of the militia and an
all-federal reserve force in its place. Yet, given the multiplicity of
what many consider more pressing national issues meriting a
constitutional amendment, this is not a political or practical reality.
So what is left is a system that is by its very nature less than
optimal. In the language of statisticians, given these constitutional
and political constraints, how should the variables be arranged to
arrive at the optimal solution, and what role should the courts take in
this optimization?
The answer to the first question depends on the answer to the second.
The Court's role is to say what the constraints are and develop a theory
by which the political branches may predict before-hand what the
constraints in future situations will be.[239] Once the political
branches and the states know where the end of state control is and where
federal power begins, then these two actors can concentrate on making
their individual contributions to the ultimate defense solution as
effective as possible. If the states must maintain independent military
forces for their own purposes, but also must supplement the national
defense, then the courts and Congress should be ensuring that the states
are allowed to do what must be done to serve both of these ends.
Congress could begin by recognizing this truth and reforming the
National Guard system to give the states more independence in developing
and executing militia policy. Until such action occurs, however, the
courts could aid in this process by striking down fe-[Page 362]deral
provisions that overstep the bounds of federal power over this uniquely
state-federal institution.
Patrick Todd Mullins
* This Note was developed by Patrick Todd Mullins.
1. Perpich v. United States Dep't of Defense, 666 F. Supp. 1319, 1325
(D. Minn. 1987). Governor Perpich asserted that the Montgomery
Amendment, 10 U.S.C. � 672(f) (Supp. IV 1986), which removed the
requirement of gubernatorial consent for federal training of state
National Guard units, was unconstitutional. Perpich, 666 F. Supp. at 1325.
2. Perpich, 666 F. Supp. at 1325.
3. Dukakis v. United States Dep't of Defense, 686 F. Supp. 30, 38 (D.
Mass. 1988).
4. Dukakis v. United States Dep't of Defense, 859 F.2d 1066, 1066 (1st
Cir. 1988).
5. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. at 3
(8th Cir. Dec. 6, 1988).
6. Perpich v. United States Dep't of Defense, No. 87-5345, slip. op.
(8th Cir. Jan. 11, 1989).
7. See generally Hirsch, The Militia Clauses of the Constitution and the
National Guard, 56 U. CIN. L. REV. 919 (1986) (providing a recent
analysis of the constitutional issues involved with today's National
Guard system); Wiener, The Militia Clause of the Constitution, 54 HARV.
L. REV. 181 (1940) (providing a legal history of the Article I clauses
that describe the government's power over the militia as well as the
federal statutes enacted pursuant to those clauses). For a more in-depth
discussion of Hirsch's view of the system, see infra note 81.
8. See HEADQUARTERS, DEP'T OF THE ARMY, NATIONAL GUARD REGULATION 10-1
(1987) [hereinafter HQDA, NGR]; NATIONAL GUARD ALMANAC 77 (S. Gordon
& A. Ungerleider eds. 1988) [hereinafter ALMANAC].
9. See infra notes 12-13 and accompanying text. A distinction exists
between 'organized' militia, a regularly drilling unit of armed
citizens, and 'unorganized' militia, which consists of all able-bodied
men in the nation between the ages of 17 and 45. See 10 U.S.C. � 311
(1982). The distinction is not crucial to this discussion, and
consequently, reference to the National Guard in this Note relates only
to the concept of an 'organized' militia.
10. For a concise summary of the historical role of the militia in
British colonial North America, see J. HILL, THE MINUTE MAN IN PEACE AND
WAR: A HISTORY OF THE NATIONAL GUARD 1-31 (1964).
11. See, e.g., N.C. CONST. art. XII, � 1; PA. CONST. art. IV, � 7; VA.
CODE ANN. � 44-8 (1986).
12. See 32 U.S.C. � 101(5) (1982) (defining the 'Army National Guard of
the United States').
13. See 10 U.S.C. � 101 (1982) (defining the components of the U.S.
military forces).
14. See infra notes 86-88 and accompanying text.
15. Throughout this Note, 'the militia' refers to the general
institution or system rather than a specific statutory or juridical
entity. It is understood that 'the militia' are essentially state
organizations, and references to the federal militia will therefore
proceed the term 'national' or 'federal' when that distinction is desired.
16. See J. HILL, supra note 10. For a treatment of the history of the
militia in England and pre-Revolutionary America, see M. REID, IN
DEFIANCE OF THE LAW (1981). Reid details the role of militia during the
Revolution, the strengths and weaknesses of military forces at the local
level, and how they related to the controversy over whether to have a
standing army during the colonial period. Id. See generally J. MAHON,
THE HISTORY OF THE MILITIA AND THE NATIONAL GUARD (1983) (providing a
recent and comprehensive history of the militia); W. RIKER, SOLDIERS OF
THE STATES: THE ROLE OF THE NATIONAL GUARD IN AMERICAN DEMOCRACY (1957)
(detailing the history of the militia up until the Vietnam era).
17. See J. MAHON, supra note 16, at 9-13; W. RIKER, supra note 16, at 1-10.
18. See infra notes 38-74 and 82-89 and accompanying text.
19. For a few instances in which the Supreme Court has addressed such
broad constitutional issues, see Gilligan v. Morgan, 413 U.S. 1, 11-12
(1973) (holding that purely technical questions regarding the adequacy
of National Guard training presented nonjusticiable political
questions); United States v. Miller, 307 U.S. 174, 177-82 (1939)
(interpreting the Second Amendment as barring federal control over the
states in governance of the militia, but not barring federal regulation
of private conduct such as handgun ownership); Selective Draft Law
Cases, 245 U.S. 366, 387-88 (1918) (upholding Congress's power to draft
members of the state militia pursuant to a declaration of war).
20. U.S. CONST. art. I, � 8, cls. 15, 16, 18.
21. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 293 (M. Farrand
ed. 1911) [hereinafter FARRAND].
22. Id. at 326.
23. 2 FARRAND, supra note 21, at 330-33.
24. THE FEDERALIST NO. 29, at 172 (A. Hamilton) (H. Lodge ed. 1888)
(emphasis added).
25. The draft language read:
To make laws for organizing[,] arming and disciplining the militia, and
for governing such part of them as may be employed in the service of the
U.S., reserving to the States respectively, the appointment of the
officers, and the authority of training the Militia according to the
discipline prescribed by the United States.
1787 DRAFTING THE U.S. CONSTITUTION 913 (W. Benton ed. 1986)
[hereinafter BENTON].
26. 1 FARRAND, supra note 21, at 386.
27. Id. at 381.
28. The Second Amendment also mentions the militia, stating that '[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.'
U.S. CONST. amend. II. Although on its face this amendment appears to be
an affirmative protection of the people's right to bear arms in order to
maintain the militia, it has been read rather as an affirmation of the
importance the Framers placed on the local character of the military
forces belonging to the states. See United States v. Miller, 307 U.S.
174, 178 (1939).
29. See, e.g., 10 U.S.C. � 311, 32 U.S.C. �� 101-716 (1982 & Supp. IV 1986).
30. See infra notes 99-108 and accompanying text.
31. See E. COLBY, THE NATIONAL GUARD OF THE UNITED STATES I-5 (1977)
(detailing militia service in the French and Indian War between 1754 and
1763); J. MAHON, supra note 16, at 14-28 (noting that responding to
Indian threats was the main use of the militia).
32. The Contingental Army was the forerunner of the federal Regular
Army. M. REID, supra note 16, at 9. See generally L. SPAULDING, THE
UNITED STATES ARMY IN WAR AND PEACE (1937) (providing an authoritative
history of the U.S. Army prior to the Second World War).
33. See W. RIKER, supra note 16, at 11.
34. Ch. 25, 1 Stat. 95 (1789) (repealed 1790).
35. Id. � 1, 1 Stat. at 96.
36. James Madison's notes on the Constitutional Convention in 1787
capture the impetus to this legislation. In these notes he acknowledges
that one of the Convention's participants pointed out that '[t]he
existing Congress [was] so constructed that it [could not] of itself
maintain an army.' BENTON, supra note 25, at 155.
37. See W. RIKER, supra note 16, at 11-20.
38. Ch. 33, 1 Stat. 271 (1792).
39. Professor Wiener noted that under this regime the militia was
required to muster only once a year and that '[a]t these occasions, as
far as can now be ascertained, Mars was less in evidence than Bacchus.'
Wiener, supra note 7, at 187.
40. Federal Militia Act of 1792, � 1, 1 Stat. at 271.
41. Id.
42. Id.
43. See J. MAHON, supra note 16, at 53; W. RIKER, supra note 16, at 21- 61.
44. Act of Sept. 29, 1789, ch. 25, 1 Stat. 95, 96 (repealed 1790).
45. See J. MAHON, supra note 16, at 127.
46. See id.
47. See W. RIKER, supra note 16, at 60-61.
48. Ch. 196, 32 Stat. 775 (1903) (repealed 1956).
49. See J. HILL, supra note 10, at 186-89.
50. See Weiner, supra note 7, at 195.
51. The Dick Act was partly the result of intense lobbying efforts by
the National Guard Association (NGA), a private professional
organization representing members from the ranks of the state Guards.
The NGA was and continues to be the primary private lobbying group for
the state Guards. This association can be credited with much of the
political work resulting in improved support for the militia. See W.
RIKER, supra note 16, at 68-70.
52. See Dick Act, � 3, 32 Stat. at 775. The term was already in use in
some states, and is thought to have originated from a visit by Lafayette
in 1824 in which he remarked that a New York militia unit reminded him
of the Paris National Guards. E. COLBY, supra note 31, at I-1.
53. Dick Act, � 3, 32 Stat. at 775.
54. Id. � 20, 32 Stat. at 779.
55. Id. � 14, 32 Stat. at 777. See generally H.R. REP. NO. 1094, 57th
Cong., 1st Sess. (1902) (providing background on the Dick Act); S. REP.
NO. 2129, 57th Cong., 1st Sess. (1902) (same).
56. Ch. 204, 35 Stat. 390 (1908).
57. Id. � 4, 35 Stat. at 400.
58. See supra text accompanying note 20.
59. UNITED STATES WAR DEP'T, DIGEST OF OPINIONS OF THE JUDGE ADVOCATE
GENERAL OF THE ARMY: 1912-1940, at 644 (1942).
60. 29 Op. Att'y Gen. 322 (1912).
61. Ch. 134, 39 Stat. 166 (1916) (current version in scattered sections
of 10 U.S.C. and 32 U.S.C.).
62. See Hirsch, supra note 7, at 945-46.
63. Ch. 134, � 111, 39 Stat. at 211 (repealed).
64. See Weiner, supra note 7, at 203 & n.128.
65. Ch. 134, � 67, 39 Stat. at 199-200 (1916) (current version at 32
U.S.C. �� 106-107, 708 (1982)).
66. See H.R. REP. NO. 297, 64th Cong., 1st Sess. 9 (1916). Although this
and all subsequent legislation concerning militia did not create
mandatory obligations or procedures, the states had no choice but to
abide by it. No language required the states to do anything with their
militias. The laws did, however, increase the standards of readiness,
manpower, and equipment that the states had to meet pursuant to the
'standard to be determined by Congress' provision of the Militia
Training and Officering Clause of Article I. See U.S. CONST. art. I, �
8, cl. 16. A recurring fact pattern emerges: the states, faced with ever
more demanding standards but unable to pay for upgrading, are forced to
accept both federal funding and the resulting loss of control that goes
along with that funding. See infra note 73.
67. Ch. 134, � 111, 39 Stat. at 211 (repealed).
68. Id. � 60, 39 Stat. at 197 (current version at 32 U.S.C. � 104(d)-(f)
(1982)).
69. Id. � 69, 39 Stat. at 200 (current version at 32 U.S.C. � 302 (1982)).
70. Id. �� 102-108, 39 Stat. at 208-09 (current version at 32 U.S.C. ��
326-333 (1982)). The modern Uniform Code of Military Justice is
contained in 10 U.S.C.A. ch. 47 (West 1983 & Supp. 1988).
71. National Defense Act of 1916, �� 74-75, 39 Stat. at 201-02 (current
version at 32 U.S.C. �� 305, 307(a)-(c) (1982)).
72. See W. RIKER supra note 16, at 80-82.
73. As this Note's treatment of the development of the National Guard
system will reveal, the damages to state interests usually result from a
program of federal conditional spending. Although not all of the harms
result from such programs, those that do introduce a new aspect to the
analysis.
Questions concerning the validity of coercive federal spending are part
of a broader subject usually referred to as 'unconstitutional spending,'
a detailed analysis of which is beyond the scope of this Note. The
general question, however, strikingly resembles the queries involved in
the general state sovereignty versus federal power debate. Does the
power of the government to deny a privilege include the power to grant
it on any condition, including the surrender of
the state's constitutional right to maintain and protect its
institutional interests? For an interesting treatment of conditional
spending as it relates to the autonomy of the states, see La Pierre,
Political Accountability in the National Political Process�The
Alternative to Judicial Review of Federalism Issues, 80 NW. U.L. REV.
577, 591-96, 601 n.125 (1985).
In the case at hand, does the power of the federal government to deny
federal funding to state National Guard units include the power to grant
such funding on the condition that state Guards subject themselves to
regulatory control�a control so pervasive that it prevents the states
from maintaining the units for state purposes? In addition, may the
federal government conditionally spend in such a way as to involve
states in foreign policy issues without their permission or approval?
The questions admit of no categorical answer.
As with so many areas of constitutional law, the unconstitutional
conditions doctrine requires a balancing test. The Court has used a
case-by-case approach in conditional spending cases, and therefore, it
seems that the factors to be weighed are the same as those involved in
the general federalism debate. See generally Rosenthal, Conditional
Federal Spending and the Constitution, 39 STAN. L. REV. 1103 (187)
(providing a comprehensive discussion of conditional spending). How
well-established and important are the state interests impinged by the
conditions will be measured against Congress's power to legislate in the
area. See id. at 1106. In particular, Professor Rosenthal laments the
demise of National League of Cities v. Usery, 426 U.S. 833 (1976),
because it would have provided a baseline for comparison between direct
federal legislation and conditional spending. See Rosenthal, supra, at
1139. This issue leads inevitably back to the same questions posed at
the outset: (1) what are the state and federal interests at stake; (2)
are the state interests being harmed to an extent that a judicial
solution is justified; and (3) how can a judicial solution be crafted so
as to be consistent with a general theory of federal-state relations?
74. National Defense Act of 1916, � 61, 39 Stat. at 198 (current version
at 32 U.S.C. � 109 (1982)). The NDA also authorized the Regular Army to
form its own reserve forces. Id. � 30, 39 Stat. at 187 (repealed). This
mandate gave rise to the U.S. Army Reserve, the Officers' Reserve Corps,
and the Reserve Officers' Training Corps, thus providing the third leg
of the eventual tripartite 'Total Force' concept. See J. CARLTON & J.
SLINKMAN, THE RESERVE OFFICERS ASSOCIATION STORY 9-10 (1985); R.
CROSSLAND & J. CURRIE, TWICE THE CITIZEN 28-32 (1984); J. MAHON, supra
note 16, at 253. For a further discussion of the Total Force concept,
see infra note 95.
75. 245 U.S. 366, 368, 387-89 (1918).
76. U.S. CONST. art. I, � 8, cl. 15.
77. 245 U.S. at 368.
78. U.S. CONST. art. I, � 8, cl. 12.
79. 245 U.S. at 368.
80. See 10 U.S.C. � 101 (1982) (defining 'Army National Guard of the
United States' as 'the reserve component of the Army all of whose
members are members of the Army National Guard').
81. See Hirsch, supra note 7. Hirsch notes that this dual status is the
lynchpin of the modern federal militia system and the current system of
complete federal control. Hirsch sees the Selective Draft Law Cases as a
broad expansion of clause 15 powers, and therefore a carte blanche for
Congress's use of the militia as long as they are 'federalized.' See id.
at 959-61.
82. Ch. 227, 41 Stat. 759 (repealed 1950).
83. See supra text accompanying notes 51-55.
84. Ch. 227, �� 3a, 42, 44, 49, 41 Stat. at 759, 760, 782, 784.
85. Id. � 111, 41 Stat. at 784.
86. Ch. 87, 48 Stat. 153 (1933) (current version in scattered sections
of 10 U.S.C. and 32 U.S.C.).
87. See id. � 5, 48 Stat. at 156 (current version at 32 U.S.C. � 313
(1982)) (establishing that the National Guard may only be called upon in
accordance with the law).
88. See id. � 18, 48 Stat. at 160 (repealed) (declaring that the Guard
may be called up for active duty in time of war or national emergency).
89. Id. � 11, 48 Stat. at 156 (current version at 32 U.S.C. � 312 (1982)).
90. Pub. L. No. 82-476, 66 Stat. 481 (1952) (largely repealed).
91. Id. � 233(c), 66 Stat. at 489 (repealed).
92. Proclamation No. 4360, 40 Fed. Reg. 14,567 (1975).
93. Cf. BINKIN, U.S. RESERVE FORCES: THE PROBLEM OF THE WEEKEND WARRIOR
1-3 (1974) (providing a study of the reserve components and their status
throughout this period of reduction in forces).
94. See H.R. REP. NO. 1069, 94th Cong., 2d Sess. 3-5, reprinted in 1976
U.S. CODE CONG. & ADMIN. NEWS 517, 518.
95. The Total Force was first conceptualized by Pentagon planners in the
face of political and budgetary pressures to reduce the standing Army.
This concept is an integrated theory of a national conventional defense
and remains the basic organizing principle for United States land
forces. See J. MAHON, supra note 16, at 243; Hearings on the Department
of Defense Appropriations for 1987 Before the Subcomm. on the Department
of Defense of the House Comm. on Appropriations, 99th Cong., 2d Sess.,
pt. 7, at 623 (1986) [hereinafter 1986 House Hearings].
96. 10 U.S.C. � 101(4), (33) (1982) (defining 'Regular Army').
97. Id. � 101(4), (35) (defining 'Reserves').
98. See infra note 108.
99. See 1986 House Hearings, supra note 94 (statement of Lieutenant
General Emitt Walker, U.S. Army, Chief, National Guard Bureau).
100. See P. VAN SLYCK, STRATEGIES FOR THE 1980s, 17-32 (1981).
101. See Department of Defense Authorization for Appropriations for
Fiscal Year 1987: Hearings on S. 2199 Before the Senate Comm. on Armed
Services, 99th Cong., 2d Sess. 343 (1986) (Report of Secretary of
Defense to Congress, Feb. 5, 1986).
102. Id.
103. See Weinberger, The Defense Budget: Perspectives and Priorities, in
THE DEFENSE BUDGET 13 (1972); Sarkesian, The Myth of U.S. Capability in
Unconventional Conflicts, MILITARY REV., Sept. 1988, at 2, 10 (stating
that Reserves are part of the current United Special Operations Command).
104. See Hearings on Federal Authority over National Guard Training
Before the Subcomm. on Manpower and Personnel of the Senate Comm. on
Armed Services, 99th Cong., 2d Sess., pt. 7, at 571 (1986) [hereinafter
1986 Senate Hearings] (prepared statement of James H. Webb Jr.,
Assistant Secretary of Defense for Reserve Affairs).
105. See id.
106. See id. at 572.
107. See 10 U.S.C. � 673b (1982 & Supp. IV 1986).
108. Military experts, both on active duty and in the reserve
components, debate the military efficacy and soundness of this Total
Force strategy, but few debate that the Guards are no longer creatures
of the state first and reserves for the federal force second. See, e.g.,
R. KILLEBREW, CONVENTIONAL DEFENSE AND TOTAL DETERRENCE 85-140 (1986);
J. RECORD, REVISING U.S. MILITARY STRATEGY 91 (1984); 89 Budget Cuts
Active, Keeps Reserve Build-up, Army Times, Feb. 29, 1988, at 1-6.
109. See 11 States Seek Right to Restrict Guard's Training, N.Y. Times,
June 17, 1987, at A10, col. 3 [hereinafter 11 States]; Broder, Hands Off
National Guard, Governors Say, Wash. Post, Aug. 27, 1986, at A5, col. 1.
110. Pub. L. No. 99-661, � 522, 100 Stat. 3816 (1986) (codified at 10
U.S.C. � 672(f) (Supp. IV 1986)).
111. See The Guard in Honduras, NEWSWEEK, Feb. 17, 1986, at 36.
112. Id. (noting that the federal government commonly sends Guard troops
to places like Europe, the Middle East, and Southeast Asia).
113. See 11 States, supra note 108; Broder, supra note 108.
114. Among them were Michael Dukakis of Massachusetts, Richard Celeste
of Ohio, and George Deukmejian of California. See Hochberg,
Massachusetts Won't Invade Honduras, PROGRESSIVE, June 1986, at 17;
Peirce, Control of National Guard a Federalism Issue, 1987 NAT'L J. 388,
388. Commentators have attributed disagreement with Reagan foreign
policy in Central America as the motivation for the Governors'
opposition. See 1986 Senate Hearings, supra note 104. This allegation,
however, to the extent that is has any bearing on the merit of
constitutional issues in the debate, favors a gubernatorial consent
requirement as the Militia Clauses were meant as a check of federal
military power. See infra note 137 and accompanying text.
115. Broder, supra note 109, at A5, col. 2.
116. Pub. L. No. 99-661, � 522, 100 Stat. 3816 (1986) (codified at 10
U.S.C. � 672(f) (Supp. IV 1986)).
117. See 10 U.S.C. � 672(b), (d) (1982).
118. Id. � 672(f) (Supp. IV 1986). The Montgomery Amendment added a new
subsection to 10 U.S.C. � 672, subsection (f), stating: 'The consent of
a Governor described in subsections (b) and (d) may not be withheld (in
whole or in part) with regard to active duty outside the United States,
its territories, and its possessions, because of any objection to the
location, purpose, type, or schedule of such active duty.'
119. The model case illustrating this structural approach to
constitutional decisionmaking is McCulloch v. Maryland, 17 U.S. 316
(1819) (striking down Maryland's attempt to tax the Second Bank of the
United States). In McCulloch, Chief Justice Marshall looked to the
Necessary and Proper Clause and derived constitutional structures that
inhere in the words themselves. Id. at 407. These structures confer
rights to certain constitutional players�one of the three coordinate
branches, the states, or individuals. These rights are ancillary to
those explicit in the text. For a more thorough discussion of this
structural approach, see C. BLACK, JR., STRUCTURE AND RELATIONSHIP IN
CONSTITUTIONAL LAW (1969). For a more modern discussion, see P. BOBBITT,
CONSTITUTIONAL FATE 74-92 (1982).
120. See Redish & Drizin, Constitutional Federalism and Judicial Review,
The Role of Textual Analysis, 62 N.Y.U. L. REV. 1, 38-41 (1987).
121. See Dukakis v. United Stat
es Dep't of Defense, 686 F. Supp. 30, 30 (D. Mass.), aff'd, 859 F.2d
1066 (1st Cir. 1988); Perpich v. United States Dep't of Defense, 666 F.
Supp. 1319, 1319 (D. Minn. 1987), rev'd, No. 87-5345, slip op. (8th Cir.
Dec. 6, 1988), vacated and reh'g granted, No. 87-5345, slip op. (8th
Cir. Jan. 11, 1989).
122. See infra notes 139-41 and accompanying text.
123. See supra note 19 and accompanying text.
124. See supra note 19.
125. The Regulations of the National Guard Bureau fill several volumes,
cover many subjects, and effectively apply the panoply of federal
military standards to National Guard units and personnel. See HQDA, NGR,
supra note 8, at 1-10 to 870-20.
126. See supra note 71 and accompanying text.
127. HQDA, NGR, supra note 8, at 350-1, 1-19.
128. See supra notes 50-55 &61-73 and accompanying text.
129. 32 U.S.C. � 109(a) (1982). Congress has prohibited the states from
keeping any 'troops,' other than the 'National Guard' and so called
'defense Forces,' that are not subject to call to military duty.
Therefore, members of the National Guard and 'defense Forces' are not
'troops.' But cf. United States v. Miller, 307 U.S. 174, 178-79 (1939)
(noting the important distinction between '[t]he Militia which the
States [are] expected to maintain and train' and 'the Troops they [are]
forbidden to keep without the consent of Congress').
130. See THE FEDERALIST NOS. 25 & 28, at 209, 227 (A. Hamilton) (J.
Hamilton ed. 1866); 2 FARRAND, supra note 21, at 135.
131. See ALMANAC, supra note 8; NATIONAL GUARD ASS'N OF THE UNITED
STATES, ANNUAL REPORT TO THE GENERAL CONFERENCE 2 (1988).
132. This philosophy of judicial interpretation has enjoyed varying
degrees of popularity. Compare Perry, The Authority of Text, Tradition,
and Reason: A Theory of Constitutional 'Interpretation,' 58 S. CAL. L.
REV. 551, 597 (1985) (concluding that 'originalism' is a 'real option'
for judges faced with questions of constitutional interpretation) with
Brest, The Misconceived Quest for Original Understanding, 60 B.U.L. REV.
204, 234-37 (1980) (criticizing the theory of original intent as a
doctrine of constitutional interpretation).
133. See supra notes 21-27 and accompanying text.
134. The militia concept was a compromise that avoided the necessity of
a large standing army. Moreover, a standing army was unpopular because
of its potential threat to individual and state rights. L. SCHWOERER,
'NO STANDING ARMIES!' 198-99 (1974). One scholar has suggested that fear
of foreign service for the militia might have motivated this compromise.
Hirsch, supra note 7, at 940-42 & n.116.
135. See 29 Op. Att'y Gen. 322 (1912) (stating that the President did
not have the authority to send militia abroad for any purpose). Although
this opinion is not law today, it adds force to argument that this was
the understanding of the Framers. See also J. ORDRONAUX, CONSTITUTIONAL
LEGISLATION IN THE UNITED STATES 503 (1891) (stating that '[t]he militia
of the States restricted to domestic purposes alone, are to be
distinguished therefore from the army proper'); Hirsch, supra note 7, at
930-31 (arguing that the Framers could never have intended militia use
for foreign affairs operations).
136. See W. RIKER, supra note 16, at 18-20.
137. See W. REVELEY, WAR POWERS OF THE PRESIDENT AND CONGRESS 61 (1981).
Reveley notes that 'peace was to be the customary state of the new
nation. America [was to] avoid aggressive war abroad . . ..' More
importantly, he states that '[t]his placed view of foreign relations
precluded any explicit consideration of the use of American force
abroad.' Id.
138. The language of Article I, section 8 is clear: Congress shall have
the 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.' U.S. CONST. art. I, � 8, cl. 16 (emphasis
added). Clause 16 must, however, be read in conjunction with clause 15,
which confers to Congress the power 'for calling forth the Militia to
execute the Laws of the Union, suppress insurrections and repeal
Invasions.' Id. � 8, cl. 15.
139. See 2 FARRAND, supra note 21, at 330-55. For example, Farrand
reports that 'Mr. Sherman, took notice that the States might want their
Militia for defence agent [sic] invasions and insurrections, and for
enforcing obedience to their laws. They will not give up this point--In
giving up that of taxation, they retain a concurrent power of raising
money for their own use.' Id. at 332.
140. The view that such familial ties within military units promotes
spirit as well as a regular source of personnel remains pervasive today.
But cf. W. RIKER, supra note 16, at 11 (asserting that the American
colonies enacted draft laws modeled after the English militia system
because of the lack of professional soldiers).
141. See HEADQUARTERS, DEP'T OF THE ARMY, FIELD MANUAL 22-100, MILITARY
LEADERSHIP 22 (1988).
142. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)
(noting that 'the historic police powers of the state are not to be
overridden by statute absent clear congressional intent').
143. For two opposing viewpoints on the balancing of interests between
the state and federal judiciaries and the problems therein, compare
Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105, 1117 (1977)
(suggesting that federal constitutional litigation should be 'channeled'
to the federal courts because they are better suited for the task) with
Bator, The State Courts and Federal Constitutional Litigation, 22 WM. &
MARY L. REV. 605, 622 (1981) (concluding that both state and federal
courts must have a role and that neither should have a monopoly in
enforcing federal constitutional principles).
144. 5 U.S. (1 Cranch) 137 (1803).
145. Id. at 177.
146. State sovereign immunity was first announced in 1890 as a doctrine
of jurisdiction grounded in the Eleventh Amendment. Hans v. Louisiana,
134 U.S. 1, 10-20 (1890). In Hans, the Court held that citizens could
not bring an action against their home state in federal court. Id. at
19-20. The Eleventh Amendment states: 'The Judicial power of the United
States shall not be construed to extend to any suit in law or in equity,
commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.'
Sovereign immunity has been subject to some limiting doctrines over the
last three-quarters of a century, but still stands as a prime example of
judicial recognition of state interests in the federal system. See,
e.g., Parden v. Terminal Ry., 377 U.S. 184, 192 (1964) (permitting a
state to be sued in federal court if it waives sovereign immunity); Ex
Parte Young, 209 U.S. 123, 159-60 (1908) (allowing suits against state
officers who allegedly have violated federal law).
147. Abstention, first announced in Railroad Comm'n v. Pullman, 312 U.S.
496 (1941), requires that federal courts wait to decide cases that
involve unsettled issues of state law until the courts of that state
have had an opportunity to speak authorizatively. Pullman abstention
also stands for the proposition that, when possible, constitutional
questions are to be avoided. See id. at 500.
148. Exhaustion of state-level post-conviction remedies for state
prisoners seeking federal habeas corpus relief is a statutory
requirement. 28 U.S.C. � 2254(b) (1982). This doctrine originally
developed judicially, however, in Ex Parte Royall, 117 U.S. 241, 53
(1886). The courts have rigorously applied this requirement. See Note,
State Waiver of the Exhaustion Requirement in Habeas Corpus Cases, 52
GEO WASH. L. REV. 419, 420 n.11 (1984). Although traditionally regarded
as a doctrine of efficiency, the exhaustion requirement also allows
states to have a full opportunity to examine and administer each
criminal case through a full appeals process.
149. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The landmark
decision established the rule that the states are generally the prime
source of the common law and that the federal courts are not empowered
to create a general federal common law. Id. at 71. The Erie doctrine has
seen many developments since 1938, but still stands as an example of
respect for state interests in the balancing of federal and state
judicial powers.
150. See Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV.
1387, 1408-10 (1987).
151. These were the three justifications offered as the foundations of
'Our Federalism,' a Supreme Court doctrine first developed in Younger v.
Harris, 401 U.S. 37, 44 (1971). These doctrines buttress the general
rule limiting federal court interference with certain important state
functions.
[152]. See Michelman, States' Rights and States' Roles: Permutations of
'Sovereignty' in National League of Cities v. Usery, 86 YALE L.J. 1165,
1193 (1977) (citing Rizzo v. Goode, 423 U.S. 362, 379 (1976)).
153. For more elaborate treatment of the effects of federalism on the
shaping of federal judicial power, see M. REDISH, FEDERAL JURISDICTION:
TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 79-321 (1980).
154. 1 FARRAND, supra note 21, at 249-52, 337-38.
155. See THE FEDERALIST NOS. 29 & 39 (A. Hamilton & J. Madison).
156. See 3 FARRAND, supra note 21, at 548-49; Baucus & Kay, The Court
Stripping Bills: Their Impact on the Constitution, the Courts, and
Congress, 27 VILL. L. REV. 988, 997 (1982) (noting Hamilton's position
that the lack of a federal judiciary was a great weakness of the
Articles of Confederation). See generally THE FEDERALIST NOS. 41 & 42
(J. Madison) (noting several weaknesses in the government structure
under the Articles of Confederation as reasons why powers should be
transferred from the several states to a central government).
157. See 1 FARRAND, supra note 21, at 345-46, 355-57.
158. This recognition has taken both judicial and legislative form. In
Mitchem v. Foster, 407 U.S. 2
25 (1972), the Court commented favorably on the legislative history of
Congress' enactment of 42 U.S.C. � 1983, which allows citizens a private
right of action against any person, acting under color of state law, to
deprive them of their federal rights:
This legislative history [of � 1983] makes evident that Congress clearly
conceived that it was altering the relationship between the States and
the Nation with respect to the protection of federally created rights;
it was concerned that state instrumentalities could not protect those
rights; it realized that state officers, might, in fact, be antipathetic
to the vindication of those rights; and it believed that these failings
extended to the state courts. . . . The very purpose of � 1983 was to
interpose the federal courts between the states and the people, as
guardians of the people's federal rights�to protect the people from
unconstitutional action under color of state law, 'whether that action
be executive, legislative, or judicial.'
Id. at 242 (citing Ex parte Virginia, 100 U.S. 339, 346 (1879)).
159. Forty-nine states have constitutionally or statutorily mandated
balanced budgets. THE COUNCIL OF STATE GOV'TS, THE BOOK ON THE STATES
229, Table 6.3 (1988-89).
160. See Epstein, supra note 150.
161. See, e.g., New York v. United States, 326 U.S. 572, 583-84 (1946)
(denying New York immunity from federal taxation of revenues generated
by state sales of bottled mineral water); United States v. Butler, 297
U.S. 1, 65 (1936) (recognizing that congressional power to spend for the
general welfare extends beyond the items explicit in Article I, section
8); see also Monaghan, The Burger Court and 'Our Federalism,' 43 LAW &
CONTEMP. PROBS. 39, 41 (1979) (noting that the major reason behind the
transformation of the federal system was the modern federal role in
taxing, borrowing, and spending).
162. See infra notes 164-66 and accompanying text.
163. See Freilich, Francis & Popejoy, State and Local Government at the
Crossroads: A Bitterly Divided Supreme Court Reevaluates Federalism in
the Bicentennial Year of the Constitution, 19 URB. LAW. 791, 831 (1987).
164. 301 U.S. 1, 48 (1937) (upholding application of the National Labor
Relations Act to a large producer of steel to prevent unfair labor
practices).
165. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n,
452 U.S. 264, 275-83 (1981).
166. See, e.g., Maryland v. Wirtz, 392 U.S. 183, 195-96 (1968)
(upholding the Fair Labor Standards Act's minimum wage and overtime pay
requirements against the states and their municipalities and
specifically rejecting the notion that 'state interests' might outweigh
Congress's exercise of otherwise valid constitutional power). The Court
has held that other external limitations do, however, constrain the
scope of Congress's power under the Commerce Clause. See United States
v. Jackson, 390 U.S. 570, 582 (1968) (striking down Commerce Clause
legislation as violative of the Sixth Amendment right to trial by jury);
Leary v. United States, 395 U.S. 6, 52- 54 (1969) (finding an otherwise
permissible Commerce Clause act violative of the Due Process Clause of
the Fourteenth Amendment).
167. Congress is denied the power to lay any tax or duty 'on Articles
exported from any State,' U.S. CONST. art. I, � 9, cl. 5, to
discriminate among state ports in its regulation of commerce or revenue.
Id. � 9, cl. 6. Also, Congress may not join or divide states without
their consent. Id. art. IV, � 3.
168. Id. art. I, � 8, cl. 16.
169. 426 U.S. 833, 853 (1976).
170. See Redish & Drizin, supra note 120; see also Amar, Of Sovereignty
and Federalism, 96 YALE L.J. 1425, 1426 n.9 (1987) (discussing the
resurrection of federalism as a doctrine of constitutional significance).
171. 426 U.S. at 853 (quoting Fry v. United States, 421 U.S. 542, 547
n.7 (1975)).
172. Dee Darby v. United States, 312 U.S. 100, 124 (1941) (describing
the Tenth Amendment as stating 'but a truism that all is retained which
has not been surrendered'); Redish & Drizin, supra note 120, at 10-11
(noting the pre-Usery view that the Tenth Amendment meant that if a
'particular power has been given to the federal government, . . . then
that power is tautologically not reserved to the state').
173. See infra text accompanying note 176.
174. Although first announced in Usery, the traditional state functions
test was not fully elaborated until Hodel v. Virginia Surface Mining &
Reclamation Ass'n, 452 U.S. 264, 286-87 (1981).
175. Comment, Garcia v. San Antonio Metropolitan Transit Authority: Is
the Political Process a Sufficient safeguard to State Autonomy?, 13 W.
ST. L. REV. 261, 271 (1986).
176. 469 U.S. 528 (1985).
177. National League of Cities v. Usery, 426 U.S. 833, 856 (1976)
(Blackmun, J., concurring).
178. Garcia, 469 U.S. at 539.
179. 456 U.S. 742 (1982).
180. Id. at 747-48.
181. Id. at 761.
182. Id. at 765-66.
183. Id.
184. 460 U.S. 226 (1983).
185. Id. at 240.
186. Id.
187. This view is most often associated with Professor Herbert Wechsler.
See Wechsler, The Political Safeguards of Federalism: The Role of the
States in the Composition of the National Government, 54 COLUM. L. REV.
543, 559 (1954); see also J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL
POLITICAL PROCESS 176 (1980) (noting that the structural aspects of the
national political process adequately protect the states).
188. See Wechsler, supra note 187, at 558.
189. Aspects of this argument have been applied to interpretation of the
Eleventh Amendment. See Nowak, The Scope of Congressional Power to
Create Causes of Action Against State Governments and the History of the
Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413, 1441 (1975);
Tribe, International Immunities in Litigation, Taxation and Regulation:
Separation of Powers Issues in Controversies About Federalism, 89 HARV.
L. REV. 682, 696-97 (1976).
190. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 241 (1st Ed. 1978).
191. References in the Congressional Record on the House debate over the
Montgomery Amendment indicate that the amendment was considered for only
minutes. See 132 CONG. REC. H6266 (daily ed. Aug. 14, 1986).
192. See Dukakis v. United States Dep't of Defense, 686 F. Supp. 30 (D.
Mass.), aff'd, 859 F.2d 1066 (1st Cir. 1988); Perpich v. United States
Dep't of Defense, 666 F. Supp. 1319 (D. Minn. 1987), rev'd, No. 87-
5345, slip op. (8th Cir. Dec. 6, 1988), vacated and reh'g granted, No.
87- 5345, slip op. (8th Cir. Jan. 11, 1989).
193. See infra notes 207-09 and accompanying text.
194. Just prior to publication of this Note, the Eighth Circuit struck
down the Montgomery Amendment as unconstitutional. Perpich v. United
States Dep't of Defense, No. 87-5345, slip op. at 78 (8th Cir. Dec. 6,
1988). Consequently, a split between the First and Eighth Circuits
exists, and a writ of certiorari granted by the Supreme Court might
provide an opportunity to address federal-state relations.
195. See National League of Cities v. Usery, 426 U.S. 833, 852 (1976).
196. See EEOC v. Wyoming, 460 U.S. 226, 240 (1983); FERC v. Mississippi,
456 U.S. 742, 765-66 (1982).
197. See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966)
(dismissing South Carolina's challenge to the Voting Rights Act of 1965
because it did not have standing to invoke the Article I Bill of
Attainder Clause or the principle of separation of powers);
Massachusetts v. Mellon, 262 U.S. 447, 480, 483-86 (1923) (dismissing
challenges to the constitutionality of the Maternity Act and noting that
'the State of Massachusetts presents no justiciable controversy either
in its own behalf or as the representative of its citizens').
198. See supra text accompanying note 20.
199. See supra notes 48-55, 61-71 and accompanying text.
200. See supra notes 125-28 and accompanying text.
201. See supra notes 140-41 and accompanying text.
202. Modern standing doctrine requires an 'injury in fact' and some
causal nexus between the injury and the challenged action. Warth v.
Seldin, 422 U.S. 490, 498-508 (1975).
203. See supra text accompanying note 20.
204. Perpich v. United States Dep't of Defense, 666 F. Supp. 1319 (D.
Minn. 1987), rev'd, No. 87-5345, slip op. (8th Cir. Dec. 6, 1988).
205. Id. at 1323-24.
206. Id. at 1324.
207. Perpich v. United States Dep't of Defense, No. 87-5345, slip op.
(8th Cir. Dec. 6, 1988).
208. Id. at 66.
209. See supra notes 20-77 and accompanying text.
210. Just prior to publication of this Note, the Eighth Circuit vacated
the decision in Perpich and granted a rehearing en banc. Perpich v.
United States Dep't of Defense, No. 87-5345, slip op. (8th Cir. Jan. 11,
1989).
211. Dukakis v. United States Dep't of Defense, 686 F. Supp. 30, 35 (D.
Mass.), aff'd 859 F.2d 1066 (1st Cir. 1988).
212. Id.
213. Id.
214. See supra notes 75-79 and accompanying text.
215. Dukakis, 686 F. Supp. at 38.
216 Dukakis v. United States Dep't of Defense, 859 F.2d 1066, 1066 (1st
Cir. 1988).
217. See supra notes 133-37 and accompanying text.
218. Professor Weiner characterized the federal recognition system as
sharply curtailing '[t]he constitutional provision, 'reserving to the
States . . . the Appointment of the Officers.'' Weiner, supra note 7, at
201 (quoting U.S. CONST. art. I, � 8, cl. 16). A full discussion of this
issue is beyond the scope of this Note, however.
219. Bickel, The Supreme Court 1960 Term� Foreword: The Passive Virtues,
75 HARV. L. REV. 40, 42-47 (1961).
220. One of the most recent major cases in which the political question
doctrine was held to make a case non-justicable involved the Ohio
National Guard. Gilligan v. Morgan, 413 U.S. 1 (1973). In Morgan, the
Court concluded that federal courts could not decide cases brought
against Ohio over the deaths of students at the Kent State riots. Id. at
10-11. The deference to Congress in matters of defense�specifically over t
he training and disciplining of troops acting to quell civil
disturbances�was the main justification. Id. It would have been
interesting, for the purposes of this Note, had the Court reached the
merits because the troops were not in federal service but on state duty.
221. The Supreme Court has stated that 'the constitutional power of
Congress to raise and support armies and to make all laws necessary and
proper to that end is sweeping.' United States v. O'Brien, 391 U.S. 367,
377 (1968). When the action stems from 'congressional authority to raise
and support armies and make rules and regulations for their governance'
judicial deference is at its apogee. Rostker v. Goldberg, 453 U.S. 57,
70 (1981).
222. The Supreme Court has stated that 'it is error to suppose that
every case or controversy which touches foreign relations lies beyond
judicial cognizance.' Baker v. Carr, 369 U.S. 186, 211 (1962). Moreover,
in general
the courts cannot reject as 'no law suit' a bona fide controversy as to
whether some action denominated 'political' exceeds constitutional
authority. The cases we have reviewed show the necessity for
discriminating inquiry into the precise facts and posture of the
particular case, and the impossibility of resolution by any semantic
cataloguing.
Id. at 217; see also Bickel, supra text accompanying note 219.
223. Baker, 369 U.S. at 226 (1962).
224. Redish, Judicial Review and the Political Question, 79 NW. U.L.
REV. 1031, 1059 (1985). Professor Redish states:
That the states and the various branches can normally protect their own
interests means only that the number of instances in which serious
constitutional challenges . . . are presented will be relatively few. It
does not mean that if and when they do arise, the Supreme Court should
shirk its fundamental obligations as constitutional arbiter.
Id.
225. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528,
587-89 (1985) (O'Connor, J., dissenting). Additionally in a brief
dissent in Garcia, then Associate Justice, now Chief Justice, Rehnquist
predicated that Usery would rise again: '[T]he judgment in these cases
should be affirmed, and I do not think it incumbent on those of us in
dissent to spell out further the fine points of a principle that will, I
am confident, in time again command the support of a majority of this
Court.' Id. at 580 (Rehnquist, J., dissenting).
226. See Wechsler, supra note 187.
227. The Court adopted this approach in Garcia: '[W]e are convinced that
the fundamental limitation that the constitutional scheme imposes on the
Commerce Clause to protect the 'States as States' is one of process
rather than one of result.' 469 U.S. at 554.
228. See P. BATOR, P. MISHKIN, D. SHAPIRO, & H. WECHSLER, THE FEDERAL
COURTS AND THE FEDERAL SYSTEM 434-38 (2d ed. 1973) (noting that
congressional elimination of the lower federal courts and removal of
state court jurisdiction over federal questions would leave no judicial
forum for vindication of individual rights and would raise serious due
process problems).
229. This argument was made by the federal government in Perpich and
rejected by the Eighth Circuit. Perpich v. United States Dep't of
Defense, No. 87-5345, slip op. at 67-68 (8th Cir. Dec. 6, 1988).
230. U.S. CONST. art. VI, � 2.
231. See supra text accompanying note 20.
232. Cf. Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J.,
dissenting). In Hall, Justice Rehnquist noted that
when the Constitution is ambiguous or silent on a particular issue, this
Court has often relied on notions of constitutional plan�the implicit
ordering of relationships within the federal system necessary to make
the Constitution a workable governing charter and to give each provision
within that document the full effect intended by the Framers.
Id.
233. During the mid-1980s the Reagan Administration saw increasing
limitations on its ability to support the Contra forces in Nicaragua.
See Intelligence Authorization Act for Fiscal Year 1984, Pub. L. No.
98-215, � 108, 97 Stat. 1473, 1475; Act of Dec. 21, 1982, Pub.L. No.
97-377, � 793, 93 Stat. 1830, 1865.
234. Lichter v. United States, 334 U.S. 742, 746 (1948) (upholding the
Renegotiation Act's authorization for recovery of excess profits by
private parties on subcontracts for war goods in time of war); Woods v.
Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) (upholding post-war rent
controls); Yakus v. United States, 321 U.S. 414, 423 (1944) (upholding
World War II price controls).
235. See supra text accompanying note 20.
236. Id.
237. See, e.g., Mela v. Callaway, 378 F. Supp. 25, 28 (S.D.N.Y. 1974)
(noting that although the National Guard is 'something of a hybrid under
both state and federal control, [it] is basically a state organization').
238. See Derthick, Militia Lobby in the Missile Age�The Politics of the
National Guard, in CHANGING PATTERNS OF MILITARY POLITICS 192 (P.
Huntington ed. 1982); cf. Binkin, supra note 92, at 36-37 (detailing the
problems with relying on reserve capabilities).
239. See Bator, supra note 143, at 622. Professor Bator has suggested a
similar role for the courts in their function as the line drawer between
state and federal jurisdiction. Id. He argues that neither state nor
federal courts will gain a monopoly over enforcement of constitutional
principles, and therefore, the courts should exercise their stewardship
over both institutions in a way that optimizes constitutional
principles. Id. at 633-34.
EXHIBIT 17
New York State Division of Military and Naval Affairs
Union Blue And Militia Gray:
The Role Of The New York State Militia
In The Civil War -
Chapter 1
Antecedents And Organization
The militia forces of the United States have traditionally assumed three
roles in the service of the nation and their respective states. They
must first organize and prepare to conduct conventional military
operations against any external threat. Internally, the militia trained
to assist the appropriate authority to suppress riots, protests and
other forms of civil disobedience. Lastly, the militia mobilized to
control the effects of natural disasters and to assist their fellow
citizens. In the era of the Civil War the militia of New York State
performed all these duties besides shouldering the major burden of
raising the main war-time combat forces.
The militia owed its existence to conditions in the colonial period. The
Revolutionary War militia had a very varied experience and in the
Federalist period of the 1790s reforms were attempted to impose some
degree of uniformity and efficiency for all militia forces in the United
States.
During his first term as president, George Washington relied on
Secretary of War Henry Knox to prepare a comprehensive proposal for the
national use of the militia. The final result was "An Act more
effectively to provide for the National Defense by establishing Uniform
Militia throughout the United States" on 8 May 1792. This law gave the
militia whatever slight central direction it was to have for the next
111 years. It stated that all free able-bodied white men (blacks and
women were excluded), aged 18-45, owed military service to both state
and nation. It directed the eligible males to furnish themselves with
proper firearms and accoutrements. Certain categories of men were exempt
from service and the law authorized the states to expand further their
own list of exemptions. The law also directed that the militias were to
be divided into brigades and regiments "if convenient" and provided for
the existence of specialized infantry, including riflemen, light
infantry and grenadiers. Volunteers within brigades filled the cavalry
and artillery. [1]
Each state maintained an adjutant general, the key person among each
militia charged with upholding uniformity. He reported the condition of
his forces once per year to the governor and the president. The act did
create select corps but provided for the organizing, and training of all
able-bodied men. Since they numbered in the vicinity of half a million,
this provision proved unrealistic, made more so because there were no
penalties for failure to comply. The act therefore included no sanctions
against either states or individuals.
On 28 February 1795 Congress passed another statute vital to the future
of the militia. It was entitled "An Act to Provide to call Forth the
Militia to Execute the Laws of the Union, Suppress Insurrection and
Repel Invasions." Upon invasion or its threat, it empowered the
president to summon as many troops as he deemed necessary. Unlike the
Uniform Militia Act, this law provided sanctions for failure to answer a
summons from the president. The act confirmed long-standing custom in
limiting the compulsory term of all militiamen in Federal service to
three months in a year. [2]
The crisis of the first decade of the 19th Century left behind the Act
of April 1808 appropriating $200,000 annually for arming and organizing
"the whole body of the militia of the United State s.. .by and on
account of the United States." The assessment of the militia as well as
its organization, thus theoretically became a Federal responsibility.
Neither the constitutional nor the military consequences of this seemed
important at the time, but these three acts provided the framework on
which the militia and the war-time volunteers were to be raised and
administered in the 1860s. [3]
One of the popular ways of enforcing attendance at training periods was
by means of fines. A man could plan beforehand for an absence and pay a
sum for the privilege of so absenting himself. Placing fines and
commutation fees and collecting them proved to be two very different
matters. It seems that at no time within the period between 1846 and
1860 did the states succeed materially in collecting either. [4] In some
states the fines were exceedingly high for non-attendance. In New York
the fine amounted to twe
lve dollars, quite a sum for an average laborer.
After the War of 1812 New York State sought to collect fines from
militiamen who had dodged war service. State tribunals assessed fines of
$200,000 against 4000 militiamen, but so indifferent was the public that
collection costs exceeded income by $25,000. [5]
Commutation funds from those who did not wish to serve came in easier.
In 1850 New York collected over $41,000. [6] The availability, or lack
of commutation funds for the support of the state militia became a cause
celebre in the years before the Civil War.
In his 1858 Annual Report of the Adjutant General, Brigadier General
Frederick Townsend suggested:
The system known as the commuting system, were it enforced in accordance
with the spirit of the law, would, it can hardly be denied, provide a
sufficient organization, from the burdens under which it is at present
struggling. While it is not desired that the force should be wholly
sustained from this system, like a necessary one, it is nevertheless
consonant with reason and justice that men volunteering to perform a
duty which all, with few exceptions, are required by the laws of
Congress to discharge, should be at least assisted in some of their
expenses, as for music, armory rent and horses for guns, by those who
are thereby relieved of such duty. [7]
In financially strapped circumstances, commanders and staff officers at
all levels in the militia forces came to espouse the commutation system
for the support of their units. In the 15 April 1860 edition on the
(State) Military Gazette, the editor exclaimed:
The Legislature of 1846 reduced the commutation fee to fifty cents for
non-performance in hopes that the great bulk of eligibles would be glad
to rid themselves of this duty at so small a loss while there would
remain a sufficient number of citizens who from military zeal would go
to the expense and trouble to become effective soldiers. After thirteen
years however, this system was found to be a failure. [8]
It is impossible to set an exact date for the beginning of the decline
in interest in the militia but it is certain that the decline began many
years before the Mexican War. The causes for it were many - lack of
military necessity; rarity of drill days; expense and the commutation
fees and fines. As the memory of the War of 1812 faded gradually from
the public mind, the military spirit also declined. Militiamen in most
cases only drilled on one day each year, and that usually in April or
October. [9] In 1846 New York (and Connecticut) abolished compulsory
service. Five other states did likewise in the coming decade. In place
of the obligatory militia training, new laws provided for volunteer
companies. Some states collected a small commutation fee in lieu of
military duty and in New York this amounted to seventy-five cents. The
money thus collected supported the volunteer independent corps. The
Niles National Register became jubilant over the abolition of the
compulsory militia law in New York: "We congratulate the people of this
commonwealth warmly and heartily upon this emancipation from mock
military duty. The Bill which cuts up the miserable system of militia
oppression has become a law." [10]
As the compulsory system of universal military training waned,
volunteering waxed. In some people, the martial spirit combined with a
love of colorful uniforms, ceremonials and martial music, was ever
present. Affluent volunteers saw in volunteer units instruments by means
of which they could defend what they owned. The wealthier among them
joined the cavalry which was exclusive because it was expensive, while
clerks and shopkeepers enrolled in grenadier, light infantry and other
elite infantry companies. All volunteers had to be able to afford their
affiliation: as much as $72 for the uniform, an initial investment in
armament, and various levels of dues. [11] Despite costs, volunteer
units proliferated and as these volunteers became the only reliable part
of the militia system, the states began to offer them more support.
Festivals would have been drab without the volunteer militia, the units
of which were easy to involve in public appearances. They conducted
target shoots and marched with much ceremony to visit neighboring units.
The encampments occasioned by these visits involved themselves and the
host communities in gargantuan feasts, much fancy drill and sham battles.
The volunteer militiamen made themselves useful to state and local
officials in maintaining law and order. They guarded prisoners to
prevent lynchings and prisons where unpopular executions were being
carried out, and they enforced quarantines. Riot duty formed an integral
part of their service, for riots were endemic to the cities. During the
troubled election of 1834, the famous 7th Regiment of the New York State
Militia stood under a hail of bricks and stones, but managed to withhold
its fire. The following year, the city suffered a great fire and this
regiment policed the streets to stem looting. When stevedores rampaged
in 1836 the 7th helped to put them down, and at the height of the Panic
of 1837, with the streets full of hungry people demanding food, the 7th
took up its arms to protect property. [12]
On 10 May 1849 the 7th Regiment assembled to put down the Astor Place
Riots and this marked the first occasion in which militia forces fired
into a crowd. On that date a mob of Irishmen attacked the New York City
Opera House because a famous English actor was playing there. Before
order was restored, the casualties totaled 22 killed and 36 wounded with
the mob taking the greater punishment. [13] The city's Summer violence
in 1857 had its roots in a legislative measure placing the municipal
police under state control. The participants included discharged members
of the municipal police, Irish and German immigrants and members of
street gangs such as the Dead Rabbits, Blackbirds, Bowery Boys and the
Roach Guards. Apart from gang rivalry, the anger of the mobs seemed to
be directed against the new metropolitan police and the Sunday closing
of grog shops. The 8th and 71st Regiments were called in over a period
of two weeks to restore order in what had degenerated into guerrilla
warfare. [14] A small howitzer captured from the Dead Rabbits gang by
the 71st Regiment is on display at Camp Smith, New York to this day.
To the military reformer, Emory Upton, writing in the 1870s, the Mexican
War (1846-48) brought a revolution in the nation's military policy
because it marked the effective end of the enrolled militia system as a
serious reliance, even in theory, for major war, and the substitution of
the volunteer principle that was thereafter generally to rule. The
militia played little part in the struggle; with their three-month term
and their constitutional protection against foreign service, they were
of small help in a war of this character, while the great distances over
which operations had to be conducted ruled out the large armies and mass
mobilizations which the militia system was supposed to produce. Since
volunteers poured out with adventurous enthusiasm in quite adequate
numbers, the war could be safely left to them. Though summoned under
Federal authority, they retained their state designations and their
officers, when not elected by the men, were appointed by the governors.
Congress decreed that they were to serve for "twelve months or until the
end of the war." [15] In that conflict, New York provided two volunteer
regiments. [16]
With the successful conclusion of the Mexican War, steps were taken to
foster the professionalism of the volunteer units comprising the state
militia. As early as 1847 the adjutant general of New York suggested a
complete reorganization because so many of the companies of both
infantry and artillery had been reduced to small numbers.
The reorganization was immediately effected and there was a continued
change to larger units and less detail. [17] In 1848 the legislature
acted to provide the adjutant general with $1,000, "or part thereof as
needed" to furnish the commissioned officers with books is of tactics.
[18] By 1848 New York had organized a corps of engineers and brigade
inspectors were appointed in 1849. The legislature enacted new militia
laws in 1851; and in 1853 the laws were codified. [19] In 1849 the
adjutant general declared that "the legislature of this state has
enacted the best militia law of which any of the United States can
boast." [20]
In the latter 1850s the militia operated under the state Military
Regulations, promulgated under General Order No. 30 on 6 April 1858. The
governor, as commander-in-chief, supervised the whole military
establishment in all its various departments. He maintained
responsibility for ordering the various parades, encampments and drills
of the militia forces, and to meet any special exigencies of the state. [21]
The governor was assisted by a general staff of ten officers and their
respective departments. The adjutant general (brigadier general) acted
as the chief-of-staff to the commander-in-chief and he provided for the
day to day administration of the militia forces. He also supervised the
collection of commutation fees and fines and reported on an annual basis
to the legislature on the state of the forces to include strength,
weapons and equipment, and the readiness of the units He also prescribed
programs of training and instruction.
The Inspector General normally visited each unit and regimental district
every two years to inspect all types of state military property and to
report upon the qualifications of persons named to the governor for
appointment to military offices. [22] All money and property accounts
remained under the supervision of the inspector general until these
disbursements were placed under the direct control of United States
Officers in September and October 1861. He also audited claims and
accounted for sums du
e to regiments or members of the militia for clothing and equipment lost
or destroyed on active service.
The Commissary General and his assistants were specifically charged with
the preservation, issue and transport of arms, equipment and other
military property belonging to the state. By 1862 however, this office
was renamed the Commissary General for Ordnance, becoming responsible
for arms and equipment. The Commissary General of Subsistence thereafter
provided the troops with food. This administrative arrangement continued
for the remainder of the Civil War and for some years thereafter.
The Department of Engineers consisted of the Engineer-in-Chief, division
engineers, brigade and regimental engineers, and one sergeant and nine
sappers and miners to each regiment. Their duties consisted of
reconnoitering and surveying for military purposes and for the
superintending of defensive works, movement and operations of armies in
the field and the laying-out of camp grounds. [23]
The objective of the Quartermaster General's Department insured an
efficient system of supply for the troops and provided transport for the
movement and operations of the forces on active service. This department
also provided fuel, straw and forage for encampments, and for the
provision of tentage and camp equipage. Once hostilities began, this
department would shoulder the major burden in the raising of the
volunteer forces.
The Military Regulations of 1858 failed to discuss the Paymaster
General's responsibilities since during peacetime the position was nominal.
Although the Surgeon General's office had been in existence since 1818,
the position was honorary and without any real duties. Upon the outbreak
of war in April 1861 the office assumed several important additional
responsibilities. Besides conducting physical examinations for recruits,
qualifications for medical personnel had to be determined and certified.
In addition, hospitals were established for sick and disabled soldiers
in each of the receiving depots at Albany, New York City and Elmira, as
well as the vaccination of soldiers prior to their departure for active
service.
Besides a Judge Advocate General to advise and act on legal matters,
three aides-decamp and a military secretary assisted the governor in
administrative functions.
The Military Regulations provided direction for officers on the conduct
of operations and instruction in tactics. Guidance also provided for the
administration of prisoners of war.
Finally, detailed regulations prescribed the uniform and dress of the
militia forces. Generally, uniforms followed closely those of the
regular army of the United States except for insignia such as buttons,
badges and cap devices, which bore the arms of New York State. Infantry
regimental officers and men wore a dark blue frock coat, sky blue
trousers and a rigid blue shako, all with branch piping and pompon.
These regulations prescribed uniforms for those units of the militia
which had not adopted their own regimental uniform approved by the
commander-in-chief. [24] This provision (Para. 1544) allowed for the
profusion of unique, distinctive and often gaudy dress worn by militia
units in the early part of the war.
The Regulations did provide for a fatigue uniform consisting of a jacket
of cadet gray cloth, single breasted with standing collar, to extend
from 5-6 inches below the waist, trimmed and faced with black. Trousers
were to be sky-blue, as per the regular army, and the outfit was
complemented by a cadet gray cap (kepi) with a band of black cloth and
chin strap and flat visor of black leather. Numerous New York militia
regiments went on active service in a form of this uniform between
1861-63, and it will be seen how closely this outfit resembled the
regulation field uniform of the Confederate army.
It must also be stressed that in accordance with their role as
volunteers, militiamen were required to provide uniforms at their own
expense.
On 7 January 1862, Governor Edwin Morgan, in his Annual Message,
reported that he was forwarding
.. .a carefully prepared report, the result of systematic inquiry and
correspondence with the active military men of the State thru the
Adjutant General and the Judge Advocate General. It proposes to retain
the main features of the present Militia system; to abolish, with two
exceptions, the elective system; to return to the method of enrollment
prescribed by the Act of 1792, to require yearly drills and thus provide
a well-trained nucleus in every locality, to limit the durations of
commissions and to terminate, within a given period, those now in force,
to require candidates to be examined and the enactment of a series of
Articles of War, for the government of troops of the State in time of
war, based on those in force in the Army. [25]
The results of that inquiry and report later resulted in the passage of
the new "Militia Law" by the legislature on 23 April 1862 and remained
in effect throughout the remainder of the Civil War. It provided the
direction upon which the state militia was administered and operated
during this period.
The act delineated persons subject to military duty and allowed
exemptions. It also excused militia members from conscription for
Federal active duty. It provided for division of the enrolled militia
into two classes based on age, and still required an annual parade with
a fine of one dollar assessed for non-attendance.
Company strength was fixed at a minimum of 32 non-commissioned officers
and privates and a maximum of 100, however the commander-in-chief
received authorization in an emergency to draft men from the enrolled
militia of the first class to achieve required strength. Members were
still required to furnish their own uniforms.
In a throwback to much earlier times, elections for officers were still
retained. Companies elected their own officers and non-commissioned
officers. Field grade officers and especially regimental staff stood for
election whenever at least six uniformed companies could be assembled.
Brigadier generals and brigade inspectors were elected within their
brigade districts. The governor nominated all major generals and the
commissary general, with the consent of the Senate. The Law of 1862 gave
detailed instructions for the conduct of these elections and even
provided for an appeals process. The commander-in-chief did reserve the
right to appoint examining boards to determine the fitness and
competence of any commissioned officers.
Besides an annual parade for inspection to be held between May and
November each year, the Law provided for six drills or parades per year
by regiment or battalion and six monthly drills by each company. To
foster training, a camp of instruction was ordered annually in each of
the division districts, not to exceed ten days. Soldiers enlisted for a
term of seven years during which they were exempted from jury duty and
the payment of highway taxes. Each became eligible for a deduction in
the assessment of any real or personal property in the amount of $500.
Pay rates, in peacetime, ranged from one dollar per day for a private,
to three dollars for a company commander, and up to eight dollars for a
major general. In time of war, militia members were entitled to the same
pay, rations and allowances for clothing as established by law for the
United States Army (Para. 173-174).
Except for a few purchased privately, the small arms and accoutrements
carried by New York units before 1861 were those that had been issued
annually to the state by the general government. In common with other
states, New York's supply of muskets, rifles and other weapons was
inadequate, irregular and of generally poor quality. Such comments as
"the arms of this company are not fit for use," or "the cavalry company
is in want of carbines," or "there have been none of the new pattern
muskets issued to any of the regiments of this brigade," fill the
reports of all brigade inspectors as late as 1860. Deficiencies in
accoutrements (belts, cartridge boxes, knapsacks, etc.) proved easily as
great as in arms. [26]
In his annual report on 2 February 1858, the adjutant general reported that:
The State has stored in its various arsenals and in the hands of its
troops a large number of exceedingly worthless weapons, a considerable
portion of which have apparently come down from the War of 1812. It
nevertheless owns a very considerable quantity of serviceable muskets of
quite recent patterns, altered from flint to percussion, and also a
large quantity which have been rendered unserviceable simply by the
careless manner in which they have been altered. [27]
The 7th Regiment, the crack regiment in the state, possessed influence
and wealth beyond the dreams of other corps and probably was the best
armed regiment in New York City; at least all its members paraded with
the same model weapon. Yet the 7th carried flintlock muskets until
October 1854, when they were exchanged for "very inferior conversions."
The regiment had purchased its own cartridge boxes and white buff
leather belts (these boxes were the first to carry the cipher "NG") and
in January 1855 adopted and wore percussion cap pouches for the first
time. In November 1858 new Springfield Model 1855 Rifle-Muskets, with
the Maynard Priming System, were issued, but only after "a long and
vigorous effort." In fact, the regiment sent a committee to Washington
DC, armed with letters from prominent New Yorkers, and accompanied by
Senator William H. Seward to see Secretary of War John B. Floyd and
demand rifles "in the most earnest and peremptory manner." Only the 7th
could have accomplished this piece of effrontery.
Contrast this record with that of the 9th Regiment which had been
completely reorganized in 1859. In 1861 - one month before the outbreak
of the Civil War - its adjutant was forced to write the adjutant general:
Dear Sir:
I had the honor of address
ing you about a month ago on the subject of a stand of arms for the 9th
Regt. to which communication I am not in receipt of any reply.
In that letter I represented to you the utterly useless character of the
arms that we have - worn, broken, & in many instances incapable of
repair - And in addition - we have no less than four varieties of musket
amongst our five companies - & if we were called into service would
require four different kinds of sizes of cartridge. When we were
organized in August 1859 we were promised by Genl. Townsend a new stand
of arms out of the quota of 1860 - that came - was distributed & we were
put off to the quota of 1861. That quota has, it seems, been
distributed, & the 9th Regt. neglected again. [28]
Most of the regiments stood somewhere between the 7th and 9th. On 2
January 1861 the Military Gazette, reporting on the "Necessity of Arms,"
described how the 12th Regiment, commanded by Colonel Daniel
Butterfield, went to Staten Island for target practice during the
previous Autumn. Some of the companies had only ten or a dozen muskets
that could be fired, and each company used them in rotation. The 2nd
Regiment reportedly leased weapons from arms dealers on the occasion of
its parades. [29]
On 7 January 1862, Governor Morgan, in his annual message to the
legislature, declared:
It was obvious that our Militia was in no condition either as respected
discipline or equipment for imminent duty. Among other things it was
shown that the great body of the organized Militia was unsupplied with
reliable arms. I especially referred to that existing deficiency in the
military stores, which I recommended to the Legislature to take early
measures to supply, urging that in order to be prepared for any
emergency, a suitable appropriation should be made from the Treasury and
placed at the discretion of the Military Department. The final
consideration of this subject did not take place until 12 April 1861
when a bill passed appropriating $500,000 for the purpose of arming the
Militia and providing for the public defense. There have been purchased
in Europe, under this Act, 10,000 PI 853 Enfield Rifle-Muskets, of which
about 6,000 have been delivered to New York. [30]
The 1858 returns for weapons on hand indicated a total of 123 howitzers
and cannon of all calibers. Of that number, 98 were of the brass
six-pounder variety often assigned to the artillery batteries of
infantry regiments. Fortunately, the artillery maintained an excellent
reputation. [31]
During the antebellum period, very few of the militia companies had
quarters of their own of any kind. Most companies rented meeting rooms
in taverns and hotels, on the upper floors of stables, and in Masonic
halls arid Odd Fellows meeting houses. For company parties, regimental
balls, and other festivities, the volunteers hired theatres and music
halls. In mild weather, the militia drilled on the Washington Square
parade ground in New York City, and on other large open spaces. When it
turned cold, the infantry units rented the so-called "long rooms" in
local taverns, many of which were not big enough for company drills,
much less for regimental maneuvers. The cavalry units leased nearby
riding academies. Not only were these quarters unimposing, but, as a
result of periodic fires and changes in ownership, they often proved
temporary as well. [32] The effect these conditions had on training and
combat readiness can only be imagined.
It became plain that taverns, hotels and quasi-public halls were not
suitable places to store arms and ammunition. Volunteers feared that
their units would not thrive unless they acquired their own quarters.
Once the volunteer militia became involved in suppressing civil
disorder, they needed permanent quarters to serve as rallying points,
where the militia could assemble in an emergency, dress, arm themselves
and prepare to move out. [33]
The volunteer militia appealed to their local communities, a few of
which were willing to accommodate them. In the 1830s several militia
units obtained the use of three large rooms on the second floor of the
recently constructed public market on Centre Street. By the Civil War,
the 6th, 8th, 11th, and 71st Regiments shared the Centre Markets drill
rooms. [34] Beginning in 1858 Brooklyn's 13th Regiment met in the
four-story Henry Street Armory along with several of the city's other
military units. Brooklyn's 14th Regiment had to share the armory and
Fireman's Hall with the fire commissioner, chief engineer and other
officials of the fire department.
In 1860 the 7th Regiment moved into its new quarters in the Tompkins
Market building where they occupied the second and third floors of the
armory, which consisted of eleven company rooms, a band room, two
company drill rooms and a regimental drill hall that the New York Times
called the "handsomest and largest" in the United States. The first
floor, however, was a public market, crammed with butchers,
green-grocers, fishmongers and other shopkeepers. [35]
In February 1863 the city supervisors passed a resolution agreeing to
pay $4000 per year rent for land for an armory for the 22nd Regiment.
First constructed was a one-story building, fifty-feet wide on 14th
Street and afterward used as a gymnasium. The regiment constructed, at
its own expense, a two-story building with a tower for company rooms and
a regimental headquarters. This building cost $20,000. Company A used
the last room on the ground floor, and spent $250 to fix it up. There
were, however, no provisions for lighting the open lots surrounding the
initial building and drills were therefore held in that structure. [36]
The continued need for drill halls, armories and other expanded quarters
led the state inspector general to later recommend enlarging the annual
allowance for the rental fee for each company drill hall from $250 to
$500 per year. [37]
Equally important for the storage of arms and equipment were the state
arsenals. By far, the most important one was located in New York City
until 1859 at 5th Avenue and 64th Street. In that year, a new and larger
arsenal opened at 7th Avenue and 35th Street. [38] This building became
the principal storehouse for ordnance, and was the headquarters of the
commissary general. Arsenals were also located in Brooklyn, Buffalo,
Rochester, Auburn, Syracuse and Utica, and smaller repositories were
constructed in Kingston, Corning, Dunkirk and Batavia. All these
structures were procured in the late 1850s. Their maintenance and
upkeep, however, varied considerably, and storage facilities were
considered inadequate except in New York City. Conditions became so bad
that the inspector general, after a series of inspection visits,
recommended the consolidation of all surplus weapons at the main arsenal
in New York. He explained that many of the roofs were leaking and much
durable equipment consequently ruined. [39]
Ranking first in population and wealth among the states of the Union at
this period, New York maintained the nation's largest and most carefully
organized state army. In 1850 the New York State Militia contained 51
active uniformed regiments and a number of independent companies. By
that time the state had completely eliminated its enrolled militia
structure, and by a wide and radical reorganization in 1846-48 forced
hundreds of hitherto independent companies into regimental groupings. [40]
By 1858 the militia forces had increased to 67 regiments assigned to 28
brigades assembled into 8 divisions. The composite strength was 16,434
officers and men. Additionally, there were 36 general officers to
command this force. [41] By January 1861 this total had risen to 19,189.
[42]
The administration of this force required a command and staff of 532
officers, including, for example, an inspector general and 32 division
and brigade inspectors.
The regiments of New York numbered until 1865 in a single series that
included all branches. They varied considerably in strength and
effectiveness; those in the First Division in Manhattan had, as a rule,
from six to ten active companies, while some regiments located in
predominately rural areas were little better than paper organizations.
A New York regiment of the 1850s consisted on paper of eight battalion
companies (lettered A through H after 1857). By 1860 some regiments had
begun to letter their companies A through K, omitting J. Except for four
(1st, 3rd, 4th and 70th) all the regiments served as infantry of some
sort, although tradition, armament and the kind of drill manual employed
indicated seeming variation. Thus one finds regiments described in the
annual adjutant general's reports of the 1860s as "Rifles doing duty as
Light Infantry" or "Artillery doing duty as infantry" or merely
"Artillery" only to discover that they were all essentially in the same
branch of service.
By further complication, these infantry regiments often contained one or
more companies (and not always the elite flank companies) of a different
branch than the others. Thus the 8th Regiment (Washington Grays) had
eight infantry companies and one of cavalry. These variations were, of
course, holdovers from the days of the independent
company, and they tended to multiply the kinds of uniforms and armament
in a single regiment. [43]
The 20th Regiment (Ulster Guard) is fairly typical of a regiment raised
outside a large city. This unit is the oldest military organization in
New York State with a continuous history. It traces its lineage to the
"Trainband of Wiltwick" which was raised in Kingston in 1660. (It still
survives as the 1st Battalion, 156th Field Artillery Regiment, New York
Army National Guard.) Ulster and Sullivan counties were designated as
the regimental district and by April 1861 eight companies were in
existence. Of that number, each attempted some degree of individuality
by adopting company titles. One infantry company (G) was composed of Germ
ans as was the "Jefferson Dragoons." Company R ("Lexington Artillery")
performed regular infantry duty. On 1 March 1858 the regiment received
orders to perform as light Infantry using William J. Hardee's Rifle and
Light Infantry Tactics manual, but it continued to function as line
infantry using Winfield Scott's obsolete Infantry Tactics. The
regimental or brigade commander decided when the regiment would perform
the duties of one or the other. [44]
New York regiments deviated widely in such characteristics as wealth,
traditions and national origins. At the top, the crack 7th Regiment
(National Guard) recruited conservative, affluent Protestants, The older
corps tended to be native-American in composition and many took their
membership from the wealthier classes of society. Regiments more
recently formed, especially in New York City, were often heavily or
completely foreign in personnel, language and institutions. William H.
Russell, correspondent of the London Times, visited the 12th Regiment
(Independence Guard) in its camp in Washington DC following the outbreak
of the war. He examined some statistics compiled by Colonel Butterfield,
and discovered that of twelve soldiers, selected at random, that only
two were native-born Americans. The rest were Irish, German, English or
generally European-born. [45]
Fraternalism is understandable among immigrant groups but in one
instance a deeper purpose was involved: during the 1850s distinct New
York regiments were raised to specifically train Irishmen as soldiers so
they could fight for Irish freedom. Both the 9th and 69th Regiments fell
into this category. The 9th was organized in New York City on 29 May
1850, and marched in its first St. Patrick's Day Parade the following
year. Many people believed that the bulk of this unit were Irish rebels
disguised and organized into a secret society known as the "Silent
Friends." [46] The New York Herald later suggested "that the Irish are
organizing a Party to oppose the Know-Nothings (Native American Party).
It would be a great mistake to form such a party to foist their views on
the country and it might give power to the Know-Nothings for a whole
generation." [47] The "Green Coated Rabble" and the "Irish Mob" became
popular nicknames of derision for these Irish units [48] and Colonel
Michael Corcoran of the 69th Regiment was widely believed to be a member
of the Fenian Brotherhood, actively engaged in raising funds to
counteract such discrimination.
On 6 October 1860 the 69th Regiment held a mass meeting to protest the
visit of Britain's Prince of Wales, and resolved not to parade the
following day or at any other time before this personage. The press
directed considerable vehemence at the regiment over this incident.
Colonel Corcoran was formally charged with dereliction of duty, and his
court-martial opened on 20 December at the divisional armory at Elm and
White Streets. Corcoran based his defense on the fact that the regiment
had already served its annual quota of drills and therefore could not
parade. The public showed a great deal of interest in his case until the
outbreak of hostilities on 12 April 1861, and on that day formal orders
were promptly issued releasing Corcoran from arrest and restoring him to
command. More important matters had fortuitously intervened. [49]
A movement had been initiated in the late 1850s to amalgamate these two
regiments and thus lessen their political impact, however by 1860 both
units continued to thrive. The Military Gazette had this to say of the
9th Regiments Company C at artillery practice:
The "City Guard" is composed of young men of the best families but they
were thought to be rather too slim and too nice to manage barrette and
casemate guns. But Captain Lovell has shown that his young men are of
the right kind and not too weak and effeminate for the service of heavy
artillery. [50]
Many Americans, in and out of the militia, resented and feared the
rapidly growing influence of these foreign soldiers. Workmen and
mechanics feared the loss of their jobs to immigrants willing to work
for much lower wages. Of the nineteen regiments of all branches of the
service in Manhattan and Brooklyn, at least seven were predominately
foreign in personnel, while several of the others contained a sizeable
number of foreigners. The so-called Native American movement held great
appeal, and in the 1850s this movement reached its peak with the
organization of the American or Know-Nothing Party. Plans to raise a
regiment composed only of native-born Americans resulted in the four
original companies of the 71st Regiment (American Guard) in October
1850, Being chiefly men of the mechanic class, they avoided the
conservative gray uniforms of the 7th and 8th Regiments, and opted for
the more modern dark blue frock coat. [51] The 71st continued to
maintain its reputation as an "American Regiment." When several
foreigners attempted to enlist, great dissension ensued. A mass meeting
was held in protest, and the regimental commander, Colonel Abram
Vosburgh, attempted to defuse the situation by assuring the members of
the unit of his determination to maintain the nationality of the
regiment. [52]
Despite an intense rivalry, common duty forced the 69th and 71st
Regiments to serve together. In October 1858 the 71st relieved the 69th
on garrison duty at the immigrant "Quarantine Camp" on Staten Island.
[53] Change for the better occurred in June 1861. While garrisoning
Washington D.C., the 69th Regiment marched en masse in the funeral
cortege of the 71st's Colonel Vosburgh who had died following the fall
from a train on 30 May. That gesture helped to heal their mutually bad
relations, and ushered in a new era of good will. [54]
Chapter One Footnotes
1. John K. Mahon, History of the Militia and the National Guard (New
York: Macmillan Publishing Company, 1983), 5.
2. Ibid., 53.
3. Walter Millis, Arms and Men (New York: G.P. Putnam's Sons, 1956), 65.
4. Paul Tincher Smith, "Militia in the United States from 1846 to 1860"
Citizen Soldiers: A History of the Army National Guard (Fort
Leavenworth, KS: Combat Studies Institute, US Army Command & General
Staff College, 1989), 152.
5. Mahon, History of Militia, 81.
6. Smith, "Militia 1846-1860," 152.
7. New York State, Annual Report of the Adjutant General (Albany, NY:
1858), 26. Besides rosters of personnel, these reports contain
after-action reports for units on active service. The annual reports
also contain recommendations by the incumbents for the reorganization
and improvement of the militia forces. Hereinafter cited as: AG.
8. G.G. Stone, ed., (State) Military Gazette 15 April 1860, 115. This
journal contains much valuable information for the four years
(1858-1861) during which it was published. In the first year it was
published in Albany, and thereafter in New York City. It was the only
publication of its kind on the militia forces in the nation.
9. Smith, "Militia 1846-1860;' 134.
10. Lena London, "The Militia Fine 1830-1860," Citizen Soldiers: A
History of the Army National Guard (Fort Leavenworth, KS: Combat Studies
Institute, US Army Command & General Staff College, 1989), 127.
11. Mahon, History of Militia, 83.
12. Ibid., 85.
13. Hill, Minute Man, 41.
14. Kenneth M. Stampp, America in 1857, (New York: Oxford University
Press, 1990), 209.
15. Millis, Arms and Men, 105.
16. Hill, Minute Men, 24.
17. Smith, "Militia 1846-1860," 145.
18. AG, 1859, 562.
19. Smith, "Militia 1846-1860," 156.
20. AG, 1859,459.
21. New York State, Military Regulations (Albany, NY: Adjutant General's
Office, 1858), 6.
22. Ibid., 142.
23. Ibid., 147.
24. Ibid., 212.
25. New York State, Messages from the Governor to the Legislature,
Charles F. Lincoln, ed. (Albany NY:J.B. Lyon & Co., 1909), V: 383.
26. Frederick Todd, Military Equipage 1851-1872 (Providence, RI: Company
of Military Historians, 1977), 1026. In this multi- volume work, Todd
describes the full range of clothing, equipment and weapons utilized by
the regular, volunteer and state forces of both armies. He also provides
detailed information on the organizations of the various forces and also
useful references on maritime (naval and marine corps) subjects. This
work has become the definitive work on this wide-ranging subject.
27. AG, 1858, 9.
28. Todd, Military Equipage, 1026.
29. Military Gazette, 2 January 1861.
30. Governor's Messages, 1 January 1862, 392.
31. AG, 1858,6.
32. Robert M. Fogelson, America's Armories (Cambridge, MA: Howard
University Press, 1989), 8.
33. Ibid., 9.
34. Ibid., 10.
35. Ibid., 11.
36. History of Company A and the 22nd Regiment NGNY (New York: Styles &
Cash, 1897), 28.
37. New York State, Inspector-General's Report (Albany, NY: C. Wendell,
Legislative Printer, 1865), 21. Hereinafter cited as: IG.
38. Todd, Military Equipage, 1026.
39. IG, 1864, 35.
40. Todd, Military Equipage, 1007.
41. AG, 1858, 5.
42. AG, 1862,30.
43. Todd, Military Equipage, 1008.
44. Seward R. Osborne, "20th New York State Militia: The Early Years,"
Military Collector & Historian, Vol. XXXVIII, No. 2 (Summer 1986), 71.
45. William H. Russell, My Diary, North and South (New York: n.p. 1863),
143.
46. Daniel P. O'Flaherty, "History of the 69th Regiment N.Y.S.M." (Ph.D.
diss., University of Michigan, 1966), 13.
47. New York Herald, 4 December 1855.
48. O'Flaherty, "History of 69th," 164.
49. Ibid., 200,208,216.
50. Military Gazette, 16 May 1860.
51. John P. Severin and Frederick P. Todd, "71st Regiment, New York
State Militia 1857-1861," Long Endure 1852-1867 (Novato, CA: Presidio
Press, 1982), 20.
52. Henry Whittemore, History of the 71st Regiment N.G.S.N. Y. (New
York: Willis McDonald & Co., 1886), 25.
53. Ibid., 21.
54. Ibid., 249.
New York State Division of Military and Naval Affairs: Military History
Last modified: April 6, 2006
URL:
http://www.dmna.state.
ny.us/historic/reghist/civil/UnionBlue/UnionBlueChap1.htm
EXHIBIT 18
New York State Division of Military and Naval Affairs
Union Blue And Militia Gray:
The Role Of The New York State Militia
In The Civil War -
Chapter 2
1861: Active Service
By the turn of the year 1861 genuine public anger exploded as news came
in during January of states seceding and the seizure of government
forts, arsenals and other property. In this atmosphere, the Board of
Officers of the 7th Regiment met on 14 January to discuss the situation.
It was resolved to offer the services of the regiment should exigencies
arise. Brevet Lieutenant General Winfield Scott, the army's
general-in-chief, courteously turned down the offer three days later in
a letter to Governor Edwin Morgan. Two weeks later, however, another
scare, caused by the counting of the electoral votes in the recent
presidential election, prompted Major General Charles Sandford,
commanding the First Division in Manhattan, to assemble the officers of
the regiment to brief them on Governor Morgan's plan to dispatch eight
hundred militia to Washington D.C. should the need arise. [1]
The fall of Fort Sumter, on 12 April, removed all uncertainty and the
involvement of the state militia began as soon as President Lincoln's
proclamation, calling for the mobilization of 75,000 troops, was
announced on 15 April. In Albany the legislature was still in session
and it acted promptly to create a State Military Board composed of the
governor, lieutenant-governor, the secretary of state, the comptroller,
the state engineer and the state treasurer. The board acted to accept
into service of the state, in addition to and as part of its militia,
32,000 volunteers for two year enlistments. That operation, however,
would take time, and Governor Morgan now had to decide how best to
carryout the president's immediate requirement for seventeen militia
regiments from New York. [2]
On 16 April the legislature passed that act, entitled "An Act to
Authorize the Embodying and Equipment of a Volunteer Militia and to
provide for the Public Defense." In this first increment, only eleven
regiments of the state militia mobilized with an aggregate total of
7,334 officers and men. [3]
Some weighty problems presented themselves to the board, since only two
militia organizations (the 5th and 7th Regiments) were ready to march.
The remaining units were generally insufficiently uniformed and
equipped. The 69th, scheduled to depart on 23 April, for example, had
only 380 uniforms for 1,050 men. [4] Even the 7th Regiment required
assistance, and on 17 April the merchants of New York City met in their
Chamber of Commerce, where thirty-one gentlemen each pledged $100 for
the "equipment of the Regiment for active service." At this meeting, the
New York Stock Exchange also contributed $1000. The designated militia
regiments (see Appendix #1) were gripped by great excitement. Regiments
turned away significant numbers of willing recruits as the war fever
overwhelmed the city, already dazzled by a number of mass patriotic
rallies. [5]
Colonel Marshall Lefferts of the 7th Regiment directed his unit's
departure for 19 April following a requisition for additional camp
equipage, baggage and sufficient ammunition to furnish each man with
twenty-four rounds. [6] The regiment's marching orders required each man
to assemble in full gray fatigue uniform and sky-blue greatcoat with
knapsack with one rolled blanket. Each soldier carried suitable
underwear, an extra pair of boots, mess utensils, waist belt and cap
pouch. All ranks provided themselves with one day's rations. [7] In one
of its first official duties, the veterans of the 7th Regiment, the
forerunners of the State Home Guard Force, assembled to guard their
armory in the regiment's absence.
On 18 April the 6th Massachusetts Regiment arrived in the city and
breakfasted at the Astor House en route to Washington. Also on that day,
the U.S. S. Baltic arrived in New York Harbor bearing Major Robert
Anderson and his paroled Fort Sumter garrison.
On 19 April the 8th Massachusetts Regiment marched through the city
accompanied by Benjamin F. Butler, brigadier general of all
Massachusetts troops. At about 3:00 P.M. startling news arrived from
Baltimore that the 6th Massachusetts had been attacked by a pro-Southern
mob in that city. The regiment sustained some casualties and had to
fight its way across town to the railroad depot. That afternoon, to
tumultuous acclaim, the dandy 7th Regiment marched down Broadway, to
embark at the ferry slip for Jersey City and the first leg of its
journey to Washington.
The 7th boarded a train for Camden, New Jersey where, on 20 April, it
was ferried across the Delaware River to Philadelphia. Two weighty
problems now presented themselves. Mindful of the recent riots in
Baltimore, Lefferts began to explore alternate routes to Washington to
avoid that trouble spot. He eventually decided to avoid the overland
route by boarding the steamer Boston which would carry the unit to
Annapolis, Maryland. Lefferts considered it prudent not to sail any
further south since Confederate naval forces threatened the Potomac River.
At Philadelphia a bitter feud erupted between Lefferts and Butler, The
general was a brilliant, highly talented attorney, but his career was
marked by a series of quarrels and wrangling's due to his aggressive
manner and obstinacy. Butler believed that under the Articles of War,
the senior officer present should command when two or more units of
troops occupied the same location. However, neither the 8th
Massachusetts nor the 7th New York Regiments had been mustered into
Federal service. They still operated under the orders of the governors
of their respective states and therefore they could with justification
disregard orders from higher ranking officers on their way to
Washington. [8]
Lefferts resolved to maintain his own independence. Arriving at
Annapolis on 23 April, the regiment bivouacked on the grounds of the
Naval Academy. Lefferts had already used his own funds and credit to
purchase supplies and charter the steamer. Having discovered that local
pro-Southern sympathizers had torn up the rails and bridges on the
proposed route, Lefferts planned to march his regiment the forty miles
to Annapolis Junction, where it could board a train for the last leg of
the journey to Washington. Just before leaving, they cheered the arrival
of the Baltic and several other vessels at Annapolis, carrying the 6th,
12th and 71st Regiments. With reinforcements not far behind, the march
could proceed. [9]
The 7th pushed forward with the thermometer above 90 degrees. The heat
had great effect upon the young and inexperienced soldiers, already
debilitated by confinement on the steamer Boston, by the change of diet,
and by the lack of rest. [10]
Meanwhile in Washington, General Scott managed to assemble a motley
array of government clerks, laborers, foreign residents and even War of
1812 veterans, plus a few companies of regulars, to hold off any enemy
attack. The 6th Massachusetts had arrived at the capital with some
Pennsylvania militia, but it was the arrival of the 7th at the railroad
depot that electrified the city. Having been ordered to report to the
president, Colonel Lefferts paraded his regiment down Pennsylvania
Avenue where they were reviewed at the White House by the chief
executive and an admiring group of cabinet members and an enthusiastic
crowd.
On Friday afternoon, 26 April, the regiment formally mustered into the
service of the United States by Major Irvin McDowell, soon to be a
brigadier general of volunteers. The regulations for mustering into
Federal service had been issued in 1848 and covered in precise detail
the entire procedure for making up muster rolls, interview of
candidates, inspection and enumeration of companies, and administration
of the oath. Although the troops called for under the president's
proclamation were supposed to be mustered for three months, the 7th
received special consideration since they departed for Washington
immediately upon notification. Because of the special urgency of the
situation, the entire regiment had dropped everything, with little or no
opportunity to arrange personal affairs. Members anticipated that they
would serve for one month until their place could be taken by other
volunteer units. [11] Even so, a number of their members left by early
May to accept commissions elsewhere. First Lieutenant Noah Farnham of
the Second Company accepted the post of lieutenant-colonel in the 11th
New York Volunteers (Fire Zouaves). Schuyler Hamilton, who had served as
aide-de-camp to General Scott in the Mexican War, and was currently a
private in the Sixth Company, was again appointed military secretary to
that officer on 9 May. After their arrival, the New York regiments
quartered themselves in various government installations around the
city. The 7th shared accommodations with the 6th Massachusetts at the
capitol building, and the 25th Regiment (from Albany) under Colonel
Michael Bryan occupied the Casparis House, following its arrival on 29
April. The 71st Regiment guarded the Washington Navy Yard where it spent
its time in drill and other training. Colonel Butterfield's 12th
Regiment garrisoned the Assembly Rooms, and in their spare time marveled
at the inventions on display at the nearby Patent Office. [12]
The 69th Regiment initially engaged in guarding the railroad between
Annapolis and Annapolis Junction where they made a favorable impression
on the local populace. Following their arrival in Washington, Scott sent
ten West Point cadets to drill the regiment at their bivouac on the
campus of George Washington University in Georgetown. [13] They
mustered-in as a three-month regiment on 9 May. Sixteen soldiers refused
to be mustered, and were ceremonially drummed out of camp. Most of their
members were laborers or mechanics, an
d their families suffered in their absence. A family fund for their
relief had collected $1,663 by 13 May. [14]
The 79th Regiment, a unit claiming Scottish heritage and commanded by
James Cameron, brother of the secretary of war, received a beautiful
silk regimental color from the Union Relief Committee on 30 April, prior
to its departure from New York. After their arrival in Washington, they
cheerfully went into bivouac where they were plagued by frequent alarms
in camp, nervous sentries and boisterous officers. [15] The 9th Regiment
had been furnished knapsacks, blankets, equipment and uniforms. On 22
May their 840 members paraded down Broadway, fully equipped, but without
weapons. Fortunately, they were not molested en route through Baltimore,
and they arrived in Washington on 30 May where they marched to the
Federal arsenal to receive Harper's Ferry model muskets. [16]
The 20th Regiment had volunteered for three month's service in the first
quota of eleven regiments. Four local banks had offered to put up a
total of $8,000, since that unit was so deficient in equipment. [17]
They left Kingston on 28 April aboard the steamer Manhattan, and arrived
in Baltimore where they formed part of the garrison to calm secessionist
tendencies.
On 16 April, Morgan established 38 new regiments of war-time volunteers
for two years. Raised by recruiting throughout the state, these two-year
regiments mustered into service by the Federal government, at which time
their character changed from militia to "Volunteers." These infantry
regiments, numbered in a new sequence commencing with "1st," began the
volunteer series that totaled 194 numbers in the end. The resultant
duplication of regimental numbers between militia and volunteers caused
some confusion and much vexation, especially in those pre-war militia
regiments that were forced to give up their old designations when they
volunteered for three-year service. [18] The following chapter will
describe the raising of the war-time volunteers, however it is now
appropriate to explain this idiosyncrasy since a number of the new
volunteer units were beginning to arrive in Washington. For purposes of
this study, old-style embodied units will be referred to as "Militia"
(and after April 1862 as National Guard), while the new war-time raised
units will bear the designation "Volunteers." Thus, for example, the 8th
New York Militia served alongside the 8th New York Volunteers at First
Bull Run. The confusion that situation caused can be easily imagined. [19]
On 21 May, Major General Charles Sandford arrived in Washington with his
staff. He reported immediately to the president and General Scott, and
by general orders of the following day accepted command of all militia
and volunteer regiments from New York State. [20] Some thought had been
given to bestowing overall command of Union forces in Washington and
Virginia on Sandford, but he was disqualified because of his status as a
militia general. An attorney in civilian life, he had been commissioned
in 1837, and devoted most of his attention and spare time to the state
militia. As commander of the First Division troops in Manhattan, he held
an important position, and we shall encounter him repeatedly throughout
the Civil War years.
To provide greater protection of the capital, General Scott decided to
occupy Alexandria, Virginia and the southern approaches to the city.
Sandford described this operation in his after-action report:
I accompanied the center column which crossed the Potomac by the Long
Bridge on the morning of the 24th instant assuming the command of the
troops on the Virginia side.
On the right, the 69th New York State Militia (N.Y.S.M.), which crossed
the Potomac Aqueduct, was posted near the canal culvert. The other two
regiments of that wing (the 28th N.Y.S.M. and the 5th N.Y.S.M.) were
thrown forward on the road to Leesburg, about two miles from the river.
In the center, the 7th N.Y.S.M. was placed at the head of the Long
Bridge. The 25th N.Y.S.M. was posted at the toll-gate and Vose's Hill,
on the Columbia Turnpike. Three regiments of the New Jersey Brigade,
under Brigadier-General Runyon, together with the 12th N.Y.S.M.,
occupied the Alexandria road as far as Four-Mile Run; the pickets of the
12th extending as far as the point where the canal crosses the
Alexandria Road. The left wing, consisting of the 11th New York
Volunteer sand the 1st Michigan Regiment, occupied the city of
Alexandria, supported by the U.S. steamer Pawnee. [21]
Having pushed a short distance into the countryside to give themselves
some room to maneuver, the troops immediately began to entrench. The
69th set to work with such enthusiasm that by 1 June they had
constructed a major fortification which they named Fort Corcoran after
their colonel. [22] The movement into Virginia was claimed a great
success and Colonel Samuel Heintzelman, inspector general of the
Department of Northeastern Virginia, claimed that the "movement had been
made so quietly, that the troops had stacked arms an hour before the
inhabitants were aware that we had crossed the river. The rebel troops
occupying Alexandria, some 700 infantry, had received notice of our
coming and escaped on the Orange and Alexandria Railway, burning the
bridges behind them." [23] The only unfortunate incident of the
operation occurred when Colonel Elmer Ellsworth of the 11th New York
Volunteers (Fire Zouaves), was shot by the proprietor of a hotel in
Alexandria when Ellsworth attempted to take down a Confederate flag
flying over the building.
Sandford occupied Arlington, and with it the Custis-Lee mansion
overlooking the Potomac. It was at that time the residence of Robert E.
Lee of the Virginia state forces, and a brigadier in the new Confederate
army. Sandford made the home his headquarters in order to protect it
from possible vandalism. [24]
By 28 May, Irvin McDowell took command of the new Federal Army of
Northeastern Virginia, and began his preliminary planning of operations
(see Appendix #2, Order of Battle). He soon came under intense political
and public pressure to mount a major offensive toward Richmond, the
Confederate capital Claiming a shortage of supplies, and especially a
lack of training and organization for his amateur troops, he attempted
to resist these pressures as long as possible to gain the maximum amount
of time to turn his 35,000 man force into an effective and cohesive
force. No one in the army had ever managed such a large body of troops,
certainly no one with McDowell, and even Scott had never commanded such
a large force in the field. [25]
On 19 April Major General Robert Patterson of the regular army had
received command of the new Department of Pennsylvania. He soon moved
his headquarters to Chambersburg where he began organizing a force for
the invasion of Virginia. After an advance across the Potomac River to
Martinsburg, at the northern end of the Shenandoah Valley, he sent
urgent requests to Scott for reinforcements. [26] Patterson received
directions to take such steps as necessary to prevent Confederate
General Joseph Johnston, who commanded in the Shenandoah, from
reinforcing Brig. Gen. P.G.T. Beauregard at Manassas in northeastern
Virginia. On 15 June Johnston evacuated Harper's Ferry, and fell back to
a position north of Winchester. After some skirmishing with Confederate
forces, Patterson settled down again at Martinsburg to await developments.
On 7 July, perhaps to ensure that a "good account" did come out of the
Shenandoah, Scott sent Sandford with two New York militia regiments (5th
and 12th) to assist. The 19th and 28th New York Volunteers had already
arrived and Sandford assumed command of the 3rd Division (7th and 8th
Brigades) under Patterson. [27] The 9th Militia Regiment had arrived
earlier after being mustered-in on 8 June for three years service.
Sandford formally reviewed the various New York State units at Harper's
Ferry. Owing to the variety of uniforms, all troops received a strip of
white cloth to be worn as a recognition symbol on their left sleeve, and
to serve as a bandage in case of wounds. [28]
By 15 July Patterson had advanced to Bunker Hill, but the next day,
instead of turning toward Johnston at Winchester, he moved west and
marched to Charlestown, Virginia, leaving Johnston free to leave the
Valley and reinforce Beauregard's Confederate army. Johnston arrived at
Manassas in time to participate in the battle there on 21 July. Sandford
had been briefed earlier by Secretary of State Seward on the possibility
of succeeding Patterson should that officer prove too slow and hesitant
in engaging Johnston. Yet Patterson let slip this opportunity, and he
was relieved from duty on 25 July. Sandford, who had had considerable
excitement during this period, relinquished command on 29 July at his
own request, and returned to his post at Washington where he continued
until the expiration of his term of service on 15 August. He then
returned to New York to resume command of the First Division. [29]
McDowell finally got his army on the move on 16 July toward Manassas.
The historian of the 79th Militia Regiment was later to describe their
progress:
At 2:00 P.M. in "light marching order" the march began; our knapsacks
containing our uniform jackets and tartan pants, as well as other
extras, having been packed and left in camp. Light marching order
consisted of arms and accoutrements while our blankets with a single
change of underwear rolled therein were slung over the shoulders. There
was considerable straggling and aides were dispatched up and down the
column to enforce discipline. [30]
Their corps of engineers, uniformed in reddish gray flannel blouses, led
the 69th Militia Regiment. Ten drummers, the oldest being twenty and the
youngest only eight, provided the music with three fifers. The regiment
moved down the Columbia Turnpike past Falls Church until they were four
miles from
Fairfax when they turned left and hastened to Vienna where they
bivouacked in a swampy field by simply wrapping themselves in their
blankets. The soldiers had already experienced considerable discomfort
from thirst. [31]
Because of inexperience, indiscipline and hot weather, it took the Union
forces until the morning of 18 July to reach Centreville, seven miles
from the Confederate base at Manassas Junction. The concentration of
troops and the arrival of the supply wagons required a lengthy halt (see
Map #1).
While McDowell set off from Centreville to reconnoiter to his left, he
directed Brigadier General Daniel Tyler to send a detachment from his
First Division to demonstrate toward Blackburn's Ford on Bull Run Creek.
Beauregard had already arranged his forces in an arc, six miles long,
behind Bull Run. On that hot afternoon (18 July), Colonel William
Tecumseh Sherman moved his brigade forward in a reconnaissance-in-force.
The 69th Militia Regiment doffed their heavy coats and knapsacks, and
moved forward. They were ordered to lie down under artillery fire before
they were driven from the fields around the ford after a sharp skirmish.
[32]
A new problem arose on 20 July. Along with stifling heat, the expiration
of the enlistment of some of the militia units arrived. The 1st Rhode
Island volunteered to remain with the army in active service until the
campaign was concluded. Two other units, however, the 4th Pennsylvania
and the artillery battery of the 8th New York Militia, refused to extend
their terms of service. Their enlistments expired on 21 July, and they
would not stay a moment longer. McDowell later blamed their action on
the repulse at Blackburn's Ford. The two units prepared to return to
Washington on the following day. [33]
In his battle plan for 21 July, McDowell planned to use Tyler's division
to demonstrate in front of the Stone Bridge that carried the Warrenton
Turnpike over the Bull Run Creek. Tyler would initially place Sherman's
brigade on the right of the pike and Schenk's brigade on the left, both
facing west. Hunter's division, followed by that of Heintzelman, would
lead a turning movement to the right.
Hunter was prepared to march by 2:00 A.M. to the north, crossing Bull
Run at Sudley Springs, and then falling on the Confederate left flank.
Hunter, however, was delayed by Tyler's troops in front and his leading
brigade did not arrive at Sudley Springs Ford until 9:30 A.M. Miles'
division remained near Centreville during the day, and did not take part
in the battle.
Colonel Nathan Evans, commanding a Confederate brigade at the Stone
Bridge, observed McDowell's movements to his left and, recognizing
Tyler's activities as a feint, marched northward to meet Hunter and
Heintzelman. [34]
Shortly after reaching Sudley Springs, Colonel Ambrose Burnsides's
brigade advanced south on the road to Manassas. After proceeding about
one mile, he came under fire from Evans's brigade.
An officer of the 79th New York, while waiting for orders to make a
forward movement, climbed to the top of a tree on the edge of the woods
that overlooked that part of the battlefield occupied by the 71st
Regiment (Burnsides' brigade). He never felt such a glow of pride for
the City of New York, as when he witnessed the terrible fire of this
regiment or the coolness with which it advanced in line of battle and
hastened to deliver its fire. At each discharge he could see numbers of
the opposing enemy regiment fall, never to rise again. [35]
Heavy fighting continued along the Federal right flank with both armies
feeding reinforcements into the line. By 10:00 A.M. parts of Bee's and
Barlow's brigades that had arrived from the Shenandoah Valley marched to
Evans' assistance. About noon the Confederate line gave way and retired
south of the Warrenton Turnpike to the vicinity of the Henry House Hill.
About the time of Evans' collapse, Sherman's brigade crossed Bull Run
and moved onto the battlefield. Captain James Kelly of the 69th New York
described his regiment's advance:
The Regiment numbered one thousand muskets and was attended by one
ambulance only, the others having broken down. The 69th had good reason
to complain that whilst other regiments of other divisions were
permitted to have baggage and other wagons immediately to the rear, the
regiment was peremptorily denied any facilities of the sort. The
consequence was that the 69th arrived on the field of action greatly
fatigued and harassed, and but for their high sense of duty and military
spirit, would not have been adequate to the terrible duties of the day. [36]
Colonel Sherman continued the narrative:
Early in the day, when reconnoitering the ground, I had seen a horseman
descend a bluff to a point across the stream (Bull Run) and show himself
in the open field. I sent forward one company as skirmishers and
followed with the whole brigade, the 69th leading. We found no
difficulty in crossing over and met with no opposition in ascending the
steep bluff, but it was impassable to the artillery. Advancing slowly
with the head of the column to give time for the regiments in succession
to close up. .Lieutenant Colonel Haggerty of the 69th rode over without
orders and was shot down while trying to intercept the retreat of an
enemy party. [37]
While Evans, Bee and Bartow retreated before the advance of Hunter and
Heintzelman, Thomas J. (later "Stonewall") Jackson's brigade of
Johnston's army arrived on the Henry House plateau. A new line was
anchored on that high ground.
Between 1:00 and 2:00 P.M. a lull settled over the fighting as
McDowell's troops advanced south and then reformed along the Warrenton
Turnpike in preparation for an attack on the Henry House Hill. Colonel
Andrew Porter's 8th New York Militia, which had already been badly
broken in the earlier fighting, turned back and took no further part in
the battle that day. [38]
On the Federal right, a force consisting of the 11th New York Volunteers
(Zouaves), 14th New York Militia (popularly known as the 14th Brooklyn)
and the 27th New York Volunteers was sent to support the artillery
batteries along the turnpike. A Confederate cavalry charge down the
Sudley Springs road routed the 11th New York. A flank attack by the
Confederate 33rd Virginia fired into the remnants of the 11th New York
and the 27th New York, and drove them off. The 11th retreated through
the ranks of the 14th Brooklyn, and that regiment was also broken when
it was brought up in line. Colonel Wood, the regimental commander, was
wounded and later captured while riding in an ambulance. [39] For the
next two hours, there was heavy and confused fighting on the plateau,
largely for possession of Griffin's and Rickett's Federal artillery
batteries.
Meanwhile, Sherman, on the Federal left, had begun putting his regiments
into the fight. He left his position on the turnpike and started up the
Henry House Hill towards the Robinson House. Sherman attacked with one
regiment at a time and each in turn would be driven back and forced to
take shelter under the crest of the hill.
Sherman had first sent the 79th New York Militia to the top of the hill
where they traded volleys with the enemy. Colonel James Cameron, brother
to the secretary of war, was killed in the hottest fire while attempting
to rally his regiment. [40] The Highlanders halted, then began to fall
back. "As we passed down we saw our Colonel lying still in the hands of
Death." [41]
This left the 69th New York. Twice they charged up the slope. Twice they
were repulsed, in part they claimed, because of the demoralization of
the Highlanders before them. With two companies dressed in gray, they
received fire from other Federal units. Confederates captured the 69th's
National Color, but it was re-taken by Captain Wildly of the 11th New
York Volunteers. Their Colonel Corcoran, who had been separated from his
regiment after falling from his wounded horse, was made a prisoner
around 3:30 P.M. [42]
By 3:45 P.M. the Confederates launched a final attack and within an hour
the last of McDowell's troops withdrew from the field. The Federal
withdrawal began in fairly good order, but it soon generated into
panic-stricken flight. Colonel Henry Martin of the 71st New York Militia
described how his "Regiment retired in line of battle in common time -
and not one man running." Colonel Fowler of the 14th Brooklyn, however,
later described how "leaving the battlefield at Bull Run was not a
retreat or a falling back, it was a stampede." [43]
The regimental historian of the 79th Highlanders later related that
"Rain soaked us to the skin and a more bedraggled, demoralized and
woebegone looking lot of men I never saw before nor since than we who
plodded along through mud and slush towards our haven of rest."
Sherman's brigade and Sykes' battalion of regulars were detailed to
cover the retreat of the army, and at one point they formed square to
repel Confederate cavalry. [44] By 7:30 P.M. the last of the fugitives
had finally passed through Centreville and streamed in disorder through
Fairfax Courthouse toward the Potomac.
No one substantially faulted McDowell's generalship or his battle plan.
He had devised an excellent plan, missing only the strong defensive
position open to the enemy at the Henry House Hill line and this
McDowell could not know because of the faulty maps available. Except for
the inexperience of the troops and excessive delays, the outcome might
have been far different. [45]
Certainly, the New York militia had acquitted itself as well as could be
expected under the circumstances. No others had done better, and the
casualties were a measure of their efforts. The 79th New York alone lost
198 men, 115 of them captured or missing. Besides their colonel and
second-in-command, the 69th sustained losses of 41 officers and men
killed, 85 wounded and 60 prisoners. [46]
Coming to the end of their three-month tour of duty, it now rema
ined for the militia regiments to muster-out, and return to their
inactive duty status. The 7th Regiment had already been released on 3
June after transferring all their camp equipage to the 9th Regiment.
[47] The battle that was considered a disaster in the North did not stop
the return of the three-month units. On 26 July the 8th New York Militia
arrived by ferry at Cortland Street with one of the Confederate Black
Horse Cavalry horses as a trophy. Later the same day, the 71st Regiment
arrived on the steamer John Potter. Crowds jammed the piers on the
Hudson River and traffic came to a halt on West Street. The 8th
Regiment's Washington Grays Home Guard fired a welcome with six
howitzers. The uniformed juvenile corps of the Ellsworth and Anderson
Zouaves joined Governor Morgan in the reception that gave the appearance
of the return of victorious rather than defeated troops. The wounded of
the 71st were carefully placed in carriages, and the regiment marched up
Broadway. Flags flew from almost every window, and as the troops passed
Barnum's Museum, the Barnum Band played "The Bold Soldier Boy." Members
of the various Irish societies met at the Hibernia Hall to plan a warm
welcome for the 69th, but the regiment did not show up until the
following day. Crowds repeated their greeting as the Irish marched up
Broadway to Union Square and down Fourth Avenue and the Bowery to their
headquarters at the Essex Market Armory. The shabby men wore a variety
of hats and shirts and carried heavy knapsacks. [48]
The 69th did not officially muster-out until 23 August. Each soldier
received $29.88 wages after waiting for a month. The soldiers also
discovered that the government had deducted $2.20 for a new pair of
boots and forty-eight cents for two pairs of socks from the pay of each
man. Patriotic fervor, however, still remained strong since on 30 August
nearly every officer and soldier volunteered for three-years duty in the
newly-raised 69th New York Volunteers. An inspection of the militia unit
on 18 October at its armory revealed that 252 members were either absent
on active service or casualties at Bull Run. The inspector removed 300
muskets from a heap where they had been thrown on the return of the
regiment in July. Those remaining in the pile were in such a rusted
condition as to be unserviceable. [49]
The defeat at Bull Run convinced Northerners that the Civil War was not
to be short-lived. It now remained for the Federal government and, more
importantly, the state governments to mobilize their resources to fight
it. That effort by the New York State Militia establishment will be the
subject of the next chapter.
Chapter Two Footnotes
1. William A. Swinton, History of the Seventh Regiment, National Guard
(New York: Charles T. Dllingham, 1876), 23.
2. William J. Roehrenbeck, The Regiment That Saved the Capital (New
York: Thomas Yoseloff, 1961), 51.
3. New York State, Annual Report of the Adjutant General (Albany, NY:
1863), 8. Hereinafter cited as: AG.
4. Roehrenbeck, Regiment That Saved the Capital, 53.
5. Swinton, Seventh Regiment, 24.
6. Ibid., 27.
7. Roehrenbeck, Regiment That Saved Capital, 61.
8. Ibid., 71.
9. Ibid., 105.
10. Ibid., 111.
11. Ibid., 157.
12. Frank J. Welcher, The Union Army 1861-1865, The Eastern Theater
(Bloomington, IN: Indiana University Press, 1989), I: 160. This volume
contains much valuable information on the organization and
administration of the Union Army. It also covers campaigns and military
districts.
13. Daniel P. O'Flaherty, "History of the 69th Regiment N. Y.S.M.,"
(Ph,D diss., University of Michigan, 1966), 240.
14. Ibid., 243.
15. William Todd, The 79th Highlanders, New York Volunteers 1861-1865
(Albany, NY: Press of Brandow, Bartow & Co., 1886), 12.
16. John Jaques, Three Years Campaign with the 9th Regiment (New York:
Hilton & Co, 1865), 11.
17. Theodore Gates, Ulster Guard (20th Regiment N. Y.S.M.) (New York:
Benjamin H. Tyrell, Printer, 1879), 75.
18. Frederick Todd, Military Equipage 1851-1872 (Providence, RI: Company
of Military Historians, 1977), 1031.
19. Ibid., 1011.
20. AG, 1862, 110.
21. U.S. War Department, The War of the Rebellion: A Compilation of the
Official Records of the Union and Confederate Armies (Washington D.C.:
U.S. Government Printing Office, 1880-1901), Series I, Vol. II, 38.
Hereinafter cited as: OR.
22. O'Flaherty, "History of the 69th," 252.
23. OR, Series I, Vol. II, 4L
24. William C. Davis, Battle at Bull Run (Garden City, NY: Doubleday &
Co. Inc., 1977), 9.
25. Ibid., 77.
26. Welcher, Union Army, 73.
27. Davis, Bull Run, 87.
28. George Hussey, History of the 9th Regiment N. Y.S.M. (83rd
Volunteers) (New York: J.S. Ogilvie Press, 1889), 61.
29. AG, 1862, 111.
30. Todd, 79th Highlanders, 20.
31. O'Flaherty, "History of the 69th," 31.
32. William Root, 69th Regiment in Peace and War (New York: Blanchard
Press, 1905), 12.
33. Davis, Battle at Bull Run, 154.
34. Welcher, Union Army, 633.
35. AG, 1862, 122.
36. OR, Series I, Vol. II, 372.
37. Ibid., 369.
38. Welcher, Union Army, 635.
39. Charles Tevis, History of the Fighting 14th Regiment NGSNY (New
York: Brooklyn Eagle Press, 1911), 21.
40. Todd, 79th Highlanders, 42.
41. Davis, Battle at Bull Run, 218.
42. Root, 69th in Peace and War, 13.
43. Henry Whittemore, History of the 71st Regiment N. G.S.N. Y. (New
York: Willis McDonald & Co., 1886), 56; Tevis, Fighting 14th Regiment, 233.
44. Todd, 79th Highlanders, 47; O'Flaherty, "History of the 69th," 289.
45. Jaques, Campaign with the 9th Regiment, 22.
46. Todd, 79th Highlanders, 47; O'Flaherty, "History of the 69th," 302.
47. Jaques, Campaign with the 9fh Regiment, 22.
48. Ernest A. McKay, The Civil War and New York City (Syracuse, NY:
Syracuse University Press, 1990), 91.
49. O'Flaherty, "History of the 69th," 302; Root, 69th in Peace and War,
18; AG, 1862, 125.
New York State Division of Military and Naval Affairs: Military History
Last modified: April 6, 2006
URL:
http://www.dmna.state.ny.us/historic/reghist/civil/UnionBlue/UnionBlueChap2.htm
EXHIBIT 19
U.S. Constitution: Article I
Clauses 15 and 16. The Militia
THE MILITIA CLAUSE
Calling Out the Militia
The States as well as Congress may prescribe penalties for failure to
obey the President's call of the militia. They also have a concurrent
power to aid the National Government by calls under their own authority,
and in emergencies may use the militia to put down armed insurrection.
1581 The Federal Government may call out the militia in case of civil
war; its authority to suppress rebellion is found in the power to
suppress insurrection and to carry on war. 1582 The act of February 28,
1795, 1583 which delegated to the President the power to call out the
militia, was held constitutional. 1584 A militiaman who refused to obey
such a call was not ''employed in the service of the United States so as
to be subject to the article of war,'' but was liable to be tried for
disobedience of the act of 1795. 1585
Regulation of the Militia
The power of Congress over the militia ''being unlimited, except in the
two particulars of officering and training them . . . it may be
exercised to any extent that may be deemed necessary by Congress. . . .
The power of the state government to legislate on the same subjects,
having existed prior to the formation of the Constitution, and not
having been prohibited by that instrument, it remains with the States,
subordinate nevertheless to the paramount law of the General Government
. . .'' 1586 Under the National Defense Act of 1916, 1587 the militia,
which hitherto had been an almost purely state institution, was brought
under the control of the National Government. The term ''militia of the
United States'' was defined to comprehend ''all able-bodied male
citizens of the United States and all other able-bodied males who have .
. . declared their intention to become citizens of the United States,''
between the ages of eighteen and forty-five. The act reorganized the
National Guard, determined its size in proportion to the population of
the several States, required that all enlistments be for ''three years
in service and three years in reserve,'' limited the appointment of
officers to those who ''shall have successfully passed such tests as to
. . . physical, moral and professional fitness as the President shall
prescribe,'' and authorized the President in certain emergencies to
''draft into the military service of the United States to serve therein
for the period of the war unless sooner discharged, and all members of
the National Guard and National Guard Reserve,'' who thereupon should
''stand discharged from the militia.'' 1588
The militia clauses do not constrain Congress in raising and supporting
a national army. The Court has approved the system of ''dual
enlistment,'' under which persons enlisted in state militia (National
Guard) units simultaneously enlist in the National Guard of the United
States, and, when called to active duty in the federal service, are
relieved of their status in the state militia. Consequently, the
restrictions in the first militia clause have no application to the
federalized National Guard; there is no constitutional requirement that
state governors hold a veto power over federal duty training conducted
outside the United States or that a national emergency be declared
before such training may take place. 1589
Footnotes
[Footnote 1581] Moore v. Houston, 3 S. & R. (Pa.) 169 (1817), affirmed,
Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820).
[Footnote 1582] Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Tyler v.
Defrees, 78 U.S. (11 Wall.) 331 (1871).
[Footnote 1583] 1 Stat. 424 (1795), 10 U.S.C. Sec. 332.
[Footnote 1584] Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32 (1827).
[Footnote 1585] Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820); Martin v.
Mott, 25 U.S. (12 Wheat.) 19
(1827).
[Footnote 1586] Houston v. Moore, 18 U.S. (5 Wheat.) 1, 16 (1820).
Organizing and providing for the militia being constitutionally
committed to Congress and statutorily shared with the Executive, the
judiciary is precluded from exercising oversight over the process,
Gilligan v. Morgan, 413 U.S. 1 (1973), although wrongs committed by
troops are subject to judicial relief in damages. Scheuer v. Rhodes, 416
U.S. 233 (1974).
[Footnote 1587] 39 Stat. 166, 197, 198, 200, 202, 211 (1916), codified
in sections of Titles 10 & 32. See Wiener, The Militia Clause of the
Constitution, 54 Harv. L. Rev. 181 (1940).
[Footnote 1588] Military and civilian personnel of the National Guard
are state, rather than federal, employees and the Federal Government is
thus not liable under the Tort Claims Act for their negligence. Maryland
v. United States, 381 U.S. 41 (1965).
[Footnote 1589] Perpich v. Department of Defense, 496 U.S. 434 (1990)
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