MILITIA OF THE SEVERAL STATES"
Edwin Vieira, Jr., Ph.D., J.D.
To describe all the principles of "the Militia of the several States" that have constitutional significance would require a lengthy book (on which, in fact, I am now working). A few salient points, though, are easily summarized:
•The Militia were always governmental, not private, organizations. Regular Militia units typically chose their own officers, and so-called "independent companies" even organized themselves--but always subject to governmental approval, supervision, and command as mandated by statute or other legislative action.
Therefore, no matter how patriotically motivated, organized, and well trained, groups of men equipped with firearms do not constitute constitutional "Militia" unless they are acting under governmental auspices, or assuming governmental authority because of the exigencies of the situation confronting them.
•The pre-constitutional Militia were based on a legal duty of universal, compulsory service, excused only by special exemption.
In the earliest days, when the Colonies were sparsely populated and the dangers from hostile Indians and other enemies acute, every free man was subject to service--the fullest extent of the duty being compelled by the necessities of the situation. Later, as inhabitants increased and threats to their security decreased, specific groups composed of those considered physically and psychologically best able to serve were designated, typically able-bodied men from 15 or 16 to 50 or 60 years of age. Inasmuch as no exemption was ever treated as a "right," but only as a matter of legislative grace, discretion, and policy, age limits were no denial of the universal duty of Militia service, but merely a general exception, based on a Colonial or State legislature's determination that no immediate or regular need existed to call upon those not within the specified groups.
The key element in the designation (or exemption) was whether a man was "able bodied." The Militia Acts presumed that everyone within their specified age limits was "able bodied." If a man proved otherwise, he was not required to serve, because he could contribute little or nothing. What constituted being "able bodied," however, depended on the task as well as a man's native ability. (A stationary sniper or lookout would not need as much ability as a ranger or guerrilla.) And no Militia Act ever disarmed any free man simply because he was not "able bodied." Not being subject to serve did not disqualify a free man from ownership or possession of arms independent of the Militia.
The only individuals generally excused from appearing at regular Militia musters and training were some public officers--such as legislators, executive officials, justices of the peace, and sheriffs; a few private parties in necessary occupations--such as physicians, school masters, ministers, ferrymen, and millers; and those individuals totally disqualified for the Militia by reason of their race or condition of servitude--such as Indians, free Negroes, people of mixed race, and slaves.
Other than those who were totally disqualified, most of the individuals exempted from some or all Militia musters or training were nonetheless required to fulfill the duty to provide themselves with firearms and ammunition. And many were included on an "alarm list," subject to being called forth for service in the field when a Colony or State needed to muster her entire military strength (as, for example, in cases of insurrection or invasion). In Rhode Island, for example, men otherwise exempted because of their occupations were listed in the so-called "Senior Class," subject to mobilization in emergencies.
Conscientious objectors were sometimes exempted from Militia service, sometimes not. Even when exempted, though, they were generally required to perform non-military duties, or to pay fines or special taxes. Among the duties imposed on them were the dangerous functions of scouts and spies.
•Every Militiaman was required to possess one or more firearms suitable for infantry or cavalry, along with a supply of ammunition and necessary accoutrements, or be fined or visited with some other penalty for his failure to do so.
The Militia Acts required each and every man financially able to do so to purchase his own firearm, ammunition, and accoutrements in the free market, and to maintain these things, in good working condition, in his personal possession at home, ready for use at any time. Parents, guardians, masters, and employers were required to provide firearms, ammunition, and accoutrements for all their minor male children, apprentices, and servants old enough to serve in the Militia. For the working poor, local governments would advance moneys on deposits of merchantable goods, or arrange for employment in order to raise sufficient funds for the men to buy the necessary Militia equipment. And in some cases, men exempted from regular Militia service had to purchase arms to be supplied to others.
Because all but the very poorest men bought their own arms in the free market, they were owners as well as simply possessors. Thus, the individual duty (and concomitant right) to possess a firearm required by statute encompassed an individual duty (and concomitant right) to own that firearm as private property. Moreover, these duties and rights were plainly individual or personal in nature, because the Militia (or local governments) enforced the duties with fines or other personal penalties specifically against individuals, not against Militia units or other groups as collective entities.
For the poorest of the poor, the Militia themselves or local governments supplied firearms, ammunition, and accoutrements. Although these remained public property as to ownership, the Militiamen kept the arms at all times in their personal possession, subject to accounting for their stewardship thereof.
The only individuals who could choose to disarm themselves were those conscientious objectors whose exemptions from the Militia were sometimes allowed by statute. (Individuals disqualified for the Militia by dint of race or servitude were disarmed as a matter of law, whether they wanted to be or not. As were disloyal individuals in times of war.)
Interestingly, in principle the Militia themselves could have completely supplied their members with all the firearms and ammunition they needed, in at least three ways: (i) by normal purchases in the free market by Militiamen with the ability to pay, (ii) by assisting poor Militiamen to sell merchantable goods or obtain employment, and (iii) by subsidizing purchases for the very poorest Militiamen with fines collected from other Militiamen for various delinquencies and defaults (the fines being adjusted to generate funds sufficient to purchase the necessary quantities of arms). Thus, properly managed, the Militia could have been totally free of dependence on any other branch of government.
Every able-bodied free man was always "on duty" in the Militia, at least to the extent of maintaining a firearm, ammunition, and accoutrements always ready at home should he be called forth for service. This duty applied both to individuals who were not required to appear for musters and training at all, as well as to individuals who were required to appear, when they were not at musters, in training, or in actual service. Indeed, the duty to appear for musters, training, and service was instrumentally subsidiary to the duty to keep and bear arms, because without the arms in their hands, Militiamen would have been ineffective, if not utterly useless, at musters, training, or in the field.
Militiamen kept their own firearms in their own possession in their
homes at all times not only made musters and training more efficient
than if the arms had been stored in a few governmental arsenals, but
also made the men particularly effective for service in the field
in times of sudden emergencies, because they could be immediately
mobilized already fully armed and equipped. Moreover, this was the
only way to guarantee the effectiveness of the Militia against usurpation
and tyranny, because, had usurpers and tyrants controlled all the
firearms, the Militia would have been rendered impotent.
• The pre-constitutional Militia Acts generally immunized Militia firearms from seizure for private debts or taxes. Any and all of a Militiaman's other private goods and chattels, though, were subject to seizure and sale to compel him to pay his fines for failing to obtain and maintain the firearm, ammunition, and accoutrements the Acts required, to appear at musters or training, or to perform other Militia duties. Thus, the Militia Acts treated firearms and ammunition as highly preferred and protected types of private property.
• Whether privately owned (most of them) or public property (a few of them), the vast preponderance of Militia firearms always remained in private possession, available to common citizens in their homes at all times, rather than stored away in governmental arsenals to be handed out only when some public officials might deem it necessary. Plentiful amounts of ammunition, too, were always at hand in private dwellings, ready to use. As everyone was aware of the great dispersion of arms throughout the community, these arrangements maximized both readiness and deterrence: Everyone in the community could expect armed support from everyone else in resisting criminals, invaders, rebels, usurpers, and tyrants; and every potential criminal, invader, rebel, usurper, or tyrant knew that almost everyone else in the community could be expected to oppose him with arms at a moment's notice.
• The universal requirement of the Militia Acts that almost all of the men supply themselves with firearms, ammunition, and accoutrements through private purchases presupposed--and as matters of both law and economics promoted and guaranteed--a well-functioning free market in those commodities throughout the Colonies and independent States. Also, in requiring all Militiamen always to maintain their arms in good working order, and private gunsmiths to repair defective arms in a timely fashion for reasonable compensation, the Acts presupposed and promoted the wide availability of these and other artisans with similar skills.
• The pre-constitutional Militia Acts required men between 16 and 50 or 60 years of age to attend regular musters and training, generally four to six times a year. Often, this group was known as the "Trained Band." "Independent companies" undertook to train on their own, but if called to service in the field were attached to some regular Militia units. The purpose of these musters and training was to prepare Militiamen to provide whatever "homeland security" proved to be necessary--from outright military resistance to invasions, to suppression of insurrections, to the regular police functions of "watch" (by night) and "ward" (by day) throughout the Colonies and States, and of "patrols" of plantations in order to maintain control over unruly slaves in the South.
• The pre-constitutional Militia Acts aimed primarily at a general proliferation and dispersion of firearms and ammunition throughout the community. Two ideas were at work here: (i) that the level of public safety is proportional to the quantity and quality of armaments actually in the people's possession; and (ii) that the people should control most of the guns in their own hands, rather than suffer a few guns in a few individuals' hands to control the rest of the people. So, almost every able-bodied man was required, not only to obtain and possess a suitable firearm, ammunition, and accoutrements, but also to maintain them all in good working order at all times, ready for immediate use. Not surprisingly, then, arms and ammunition brought into the field for regular musters and training were subject to inspection, down to the last cartridge of black powder and lead ball. More interestingly, Militia officers also conducted regular "sights" of the firearms and ammunition men kept in their homes. Defaults in the quantity or quality of arms in either case resulted in fines, seizure and sale of other goods to pay the fines, or even imprisonment if the fines remained unpaid.
Hostile Indians, slaves, and individuals of proven disloyalty were usually not allowed to possess arms, except under strict supervision. And traffic in arms with unfriendly Indians was sometimes suppressed. Otherwise, the only general controls on arms usually consisted of ordinances requiring that large supplies of gunpowder, both public and private, be stored in public powderhouses, magazines, or arsenals, in order to reduce the threat of explosions and fires in towns largely built of combustible materials, and in which open fires, burning candles, and other exposed flames were almost always present. For part 6 click below.
To my readers:
I am now working on a constitutional program of "homeland security" based on "the Militia of the several States." This is probably the most important project on which I have ever embarked. It will also be the most difficult to fund, because next to no one among the powers that be, "conservative" or "liberal," wants to see the Militia revitalized.
Therefore, I appeal to common Americans for whatever financial support they can offer to advance this work. Contributions should be made out to me, marked "Militia Project," and mailed to 13877 Napa Drive, Manassas, Virginia 20112. All contributions will be hypothecated to this work only.
Even if you cannot contribute, please drop me a line to let me know that you believe this effort is important.
Thanking you in advance.
© 2005 Edwin Vieira, Jr.
- All Rights Reserved
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Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
His latest book is: "How To Dethrone the Imperial Judiciary"
He can be reached at:
The last-mentioned point is of fundamental importance. When the Constitution incorporated "the Militia of the several States" into its federal system, it did so without defining them in any of those particulars.