A Theory of the Militia

Brad Patty

16 days ago

September 09, 2020

The image is the flag of the Veterans Exempt, a militia of veterans of the Revolutionary war who also fought in the war of 1812. They thus served under the Declaration of Independence, the Articles of Confederation, and the U.S. Constitution:  all the iterations of America, so far.

This essay is intended to be read together with “A Theory of Citizenship.” The prior essay argues that citizens are officers of the state, and that citizenship is where the sovereign power resides. This is why (that essay argues) the Declaration of Independence could correctly argue that the state may be altered or abolished by the citizens, should it become destructive to their rights. Though that power is revolutionary, it is more often a source of stability because it restrains overweening governments.

Similarly, though that power justifies the people in overthrowing a bad government, it more often is used to support one the citizenry continues to believe worthwhile. This use of the militia — note that I am speaking of “the” rather than “a” militia — is so much less controversial that much of it is black letter law. However, some parts of it have not been spelled out, and they are important to our current situation. This essay will explore what the militia is, when the militia can be called up, by whom, and for what just and proper purposes; and how the militia can act to stabilize our current situation, in which our different levels of government seem to be striving against one another rather than working together.

I. Black Letter Law

That the militia exists, and that it has permanent role in ending unjust insurrection or invasion, is quite clear in American law. The Constitution grants Congress the power to use “‘the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” under command of the President, who can determine who their officers should be.

The militia exists at both the state and Federal levels, which means that the same citizens that might be called up by the state officers can also be called up by Federal officers and regulated by Congress while in Federal service. The Second Amendment to the United States Constitution famously describes the militia as “necessary to the security of a free state,” that is, not as an optional but as a necessary and essential feature.

The laws governing exactly who is in the militia have changed over time. As of 1916 it was “all able-bodied males” who were or were intending to join the American citizenry; currently, according to 10 USC § 246, it is “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.” This includes the “unorganized militia,” that is, everyone not in the National Guard. Thus, ordinarily male citizens are always in the militia, and females if they elect to be.

Note that the state power to legislate around the militia arose prior to the formation of the United States, and thus not restrained by Federal power. Thus, while Congress may pass laws to regulate the Federal use of the militia, it may not impose those rules on the same citizens insofar as they are serving as members of their state militia. By the same token, state rules may not constrain the militia if it is acting in Federal service.

II. Case Law

There is a significant piece of case law concerning the militia and its right to keep and bear arms. In US v. Miller, the Supreme Court ruled on militia protections under the Second Amendment. The more recent Heller vs. D.C. ruling treated the right of individual citizens qua individuals to keep and bear arms, but the Miller decision focused on the right to keep and bear arms for militia purposes.

The decision found that American citizens have a right to keep and bear arms for militia purposes insofar as those arms are of military use proper to a militia. A sawed-off shotgun was not protected, the court said, precisely because it had no military use that was obvious to them (though in fact such weapons were regularly used in the trench warfare of World War I, the most recent war before Miller). The decision includes an excellent summary of early writings on the militia, both from the Founding and after, and is worth reading in full.

The upshot is that the Second Amendment, insofar as it protects weapons for militia service, protects weapons of war specifically. Precisely which weapons may be kept and borne for militia service will change with time, as the technology changes, but it will be those weapons best suited to military service while acting as a militiaman that are most protected. Currently, unquestionably, the Miller decision provides the strongest protection to the AR-15 rifle. This rifle, though semi-automatic rather than fully automatic, is close enough to the military’s standard issue rifle that many parts can be interchanged with military stores should the militia and the regular military need to interoperate. Likewise, its correct and accurate use will be so familiar to American soldiers and Marines that any of them could serve as trainers to bring members of the militia up to speed quickly in order to repel an invasion or end an insurrection.

Thus, laws banning possession of AR-15s for militia service are unconstitutional. Note that militia service starts, by the black letter law, at 17 years of age. Very many extant laws prohibit even possession of AR-15s by those under 18 years of age.

III. On the need for a theory: problems with the law

The existence of those presumably unconstitutional laws is not the only problem with the law as it stands. A law that only considers the suppression of insurrections cannot grasp the full truth about the American militia, as the militia itself arose in an insurrection. The laws that allow governors or presidents to appoint the officers of the militia may be fine for cases in which the citizens agree to serve to suppress an insurrection. It cannot be the right way to appoint officers for cases such as the Declaration of Independence describes, as a tyrannical power will never call out the militia against itself, nor appoint officers fit for the cause of “altering or abolishing” such a power. We need a theory that captures the full array of cases in which the militia can be used.

The distinction between able-bodied males and females is probably untenable under our current understanding of equality of rights between the sexes. Since the Second Amendment per Miller entails a right to keep and bear weapons of war, the current black letter description of the militia would appear to create an inequality of rights for men and women. This is a problem that needs to be addressed as well.

Likewise, the exclusion of citizens over the age of 45 (for the Federal militia, at least) appears to be improper. The Veterans Exempt, whose flag heads this article, were in their sixties when they volunteered to fight again for the liberty of the American People. The Miller standard would also seem then to create an inequality of rights for older vs. younger Americans, which is improper.

Finally, the formalized command structure that the black letter law describes cannot be the only proper one. There will be cases, such as on Flight 93, when a citizens militia has to stand up without receiving formal orders. This can happen for a number of reasons. We need a theory that explains how and when it can happen, and what steps should exist to regulate this to prevent its misuse.

IV. Preamble to the theory: the militia is right and proper

It is necessary to begin by rebutting the argument, current in American politics, that the militia is improper — some even go so far as to say that it is ‘a tool of white supremacy.’ The Security Studies Group rejects all forms of supremacism, but also considers this particular claim to be ridiculous. The militia includes all Americans, and arms them against tyranny. In its revolutionary role the militia is, indeed, the final appeal against tyranny to include being subject to supremacist rule.

In its more common role of supporting governing institutions rather than replacing them, the militia likewise upholds a common peace and lawful order that is beneficial to all Americans. The burning of city centers does not benefit minority groups in America, and in fact disproportionately harms them as they disproportionately live there. Rioting and looting cause harms that can last for decades. Family owned businesses, more frequently black or immigrant families in city centers, often never recover from the destruction. These acts of instability are a direct assault on the generational wealth of our fellow citizens, black and otherwise.

Similarly, supporting the police does not entail supporting anything like ‘white power.’ Police tend to be drawn from the community that they police, and tend to reflect that community’s diversity. There have been strong initiatives for decades to further that diversity, especially at the top: just to name four, Atlanta, Charlotte, Philadelphia, and Seattle all entered this period of riots with black female police chiefs.

The militia thus has a proper role to play in a just society, and an even more proper and necessary role to play in an unjust one.

V: The Citizen and the Militia

As discussed in “A Theory of Citizenship,” citizens have a tremendous power that no other officers of the state have. The citizens alone can decide when to dissolve the Constitution, acting either through their delegates at a constitutional convention, or through the power the Declaration of Independence proclaims. No one may dissolve the United States against their will nor without their consent.

This power to decide to set aside the laws extends to the citizen as juror. Only citizens may be jurors, and as jurors they may simply refuse to convict someone who is charged with a crime. They may do so because they truly believe that person to be innocent, because they believe the law is unjust, or for any other reason. If no jury will convict a person, that person’s actions are approved as acceptable and he or she is released.

The militia is the vehicle for invoking the power to dissolve the government by force, which is a power the citizenry retains inalienably per the Declaration of Independence. Likewise, the militia is one of the final vehicles for protecting an upholding a state the citizens continue to approve of against insurrection or invasion. The citizen is the officer of the state that holds the final say on both of these matters, and therefore the militia properly belongs to them.

All citizens must therefore have at least a right, if not a duty, to serve in the militia. It cannot be limited to only men, extended to women only if they enroll in the National Guard, nor can it exclude older American citizens. In cases of invasion or insurrection against a just government, it can certainly exclude enemies. This means those who have taken up arms against the state, or those who have provided aid and comfort to insurgents or invaders:  traitors, in a word, per the Constitutional definition. When taking up arms to replace an unjust government, it is the state that has betrayed the bond.

The Federal or state militias may have black letter regulations that they abide by, but when we speak of “the militia,” it belongs to the citizens. They must retain the right to call it up regardless of any government orders, and they have a right to serve in it if they choose.

VI: Calling Up the Militia

Nevertheless, for the ordinary purpose of supporting a government that continues to enjoy the approval of the citizenry, having ordinary citizens call up a militia is pragmatically the worst method. It may be done as necessary, morally speaking, but when possible there are several better options. I list them in order or pragmatic preference.

A Sheriff Deputizing a Militia. We usually refer to a sheriff’s deputizing of citizens as a “posse,” rather than a “militia,” because the sheriff is a county-level officer. The phrase “posse comitatus” means roughly ‘power of the county.’ A ‘comitatus’ is properly a mounted war band of feudal warriors supporting their lord, from which the title ‘Count’ and the designation ‘county’ arise.

The phrase “posse comitatus” also refers to a Federal law limiting the use of military force for law-enforcement. The government may use the military and the militia to enforce Federal laws — the constitutional language lists ‘enforcing the laws of the Union’ as the first business of the militia — but there is a longstanding preference for using police rather that military units. The sheriff is thus the best choice because his deputizing of citizens retains regular order. As much as possible, the regular order of law is to be preferred if the idea is to end an insurrection, just because the desired end of the process is the restoration of law and order. Departing from it as little as possible makes that end easier to attain.

In addition, because the sheriff is a local official, he or she probably knows which citizens are best suited to serve. As Sun Tzu notes, victory is most easily obtained when you know both yourself and your enemy. Unlike a distant official who is calling up forces with broad strokes, the sheriff can appoint officers whom he or she knows to be good citizens with good judgment. This might include members of the local fire department, with whom the deputies work regularly, for example. This personal knowledge will be most likely to ensure that the deputized citizens help resolve problems rather than causing new ones. If the Sheriff starts now, he or she can even gather together a picked group of citizens and train them in case it comes up — a true ‘well regulated’ militia.

A side benefit is that as deputies, members of the posse/militia will enjoy the same qualified immunity as police officers. This will allow them to operate with a degree of safety from legal issues arising from their performance under arms.

Governors calling State-level militia. There will be cases when ordinary law enforcement, even with deputized citizens, are inadequate. Governors have the power to call out the National Guard, which is organized and trained for the purpose. Some governors also have an additional state militia force that performs at least occasional training in disaster relief and such.

In extreme cases, the states do retain the power to tap the general militia. Black letter law at the state level has often attempted to obscure this, as the preference for professional forces among professional politicians was very strong during the last century. Nevertheless, the power pre-exists the constitutions of the United States and the several states, and can be called upon if it must be.

As agents of the state, militia also enjoy substantial legal immunity.

The Insurrection Act and Federal militia. The clear exception to the “posse comitatus” law is the Insurrection Act, which allows the President of the United States to use military force to restore order under certain circumstances. Because the state militia and the Federal militia entail the same citizens, this can also allow the President to seize control of a state militia or National Guard that is being misused by a bad governor (as happened during the school desegregation crisis).

This is usually less pragmatic because the Federal government is more distant from the problems, and thus less knowledgeable about them. Likewise, it is a substantial disruption of regular order, which means that there is a larger distance to travel if the goal is to restore regular law and order. Nevertheless, if local or state governments are refusing to enforce the law, are violating the rights of the citizenry, or are refusing to defend the rights of the citizenry, this can be appropriate.

Federal militia actions also enjoy substantial immunity.

Ordinary Citizens. Citizens always have a right to self-defense, as well as the right to defend another from death or grievous bodily harm. That is the ordinary, individual right, not the militia power. The power of citizens to constitute themselves into a military force is inalienable, as discussed above. It will be practically necessary only under a few circumstances. The first and least likely is the Declaration of Independence case.

Much more likely is when citizens come under attack by terrorists, insurrectionists, rioters, arsonists, or looters. In that case citizens are very likely to be the only force capable of responding in defense of the common peace and lawful order at least for a short time. In the recent crisis, however, we have seen several occasions when the police force vanished from afflicted areas of cities for the whole night or longer. Citizens who are left to themselves by a failure of state and local power have every right to defend the common peace and lawful order against those who would destroy it.

Ordinary citizens who decide to call themselves or each other up as militia enjoy no immunity for their actions. They are formally held to the law. For those who suggest that police should be stripped of qualified immunity, the citizen-called militia thus offers an option which actually has a higher degree of legal accountability. They can be held strictly to ordinary law, even though they are likely to be acting in extraordinary circumstances.

Note that this may mean that citizens have to defend each other with the jury function. Ordinary self-defense law often does not permit the use of lethal force to defend property. When business owners are facing arsonists or looters and a police response is absent, however, more than private property is at stake. Should a prosecutor fail to recognize that and bring charges against citizens who use their militia function in this way, other citizens as jurors have the duty to consider whether the state can rightly enforce its laws against the people who defended what the state abandoned. If jurors consider that their fellow citizens used good judgment and reasonable force in the face of the collapse of ordinary law, they should approve the action by acquitting the citizens.

This in turn proves to be the major check on the misuse of the militia power by ordinary citizens. The case will end up being put before a jury of their peers, and thus subject to a ruling by a broader body of citizens as to whether they did well or badly. If they did badly, the jury is free to convict them according to ordinary law. If they did well, the jury is free to consider that ordinary law had temporarily failed, and to understand that they acted as good citizens in preventing arson or looting, rioting or insurrection.

Citizens who agree with the militia’s actions but are not on the jury should be encouraged to donate to the legal defense fund. Most charges in America end in plea bargains, not trials. If the citizen militia is to be protected by juries that approve its actions, the members must be able to afford to go to trial before a jury.

VII. The Role of the Militia in the Current Crisis

The current crisis is marked by different levels of government striving against each other. For example, state troopers in Oregon were unable to obtain cooperation from the district attorney in Portland toward prosecuting the crimes for which the troopers were making arrests. The city was actively shielding the lawbreakers from the state. In order to make their arrests effective, the troopers became deputized as US Deputy Marshals, so that they could bring charges to a US Attorney instead. Citizens in the meanwhile have been left exposed to nightly riots that prosecutors have declined to stop. This basic failure of the government is the kind of thing that can require a citizen response.

Our crisis has also been marked by police abandoning neighborhoods, so that citizens were left exposed to rioting, arson, and looting. Police agencies are often resigning or retiring en masse, leaving citizens and neighborhoods unprotected. Other cities, like Atlanta, have seen a troubled prosecutor level such absurd charges against police that the officers are frankly afraid to do their jobs. This, too, leaves the citizen unprotected.

Though it has so far affected only certain cities, where prosecutors are friendly to the rioters, there is a basic threat to the common peace and lawful order that arises from these failures of government. The power to restore order ultimately lies, however, with the citizenry. As the Second Amendment says, the militia is necessary to the security of a free state. As citizens we have every right to put things back in order.

We have also the power to do so, provided that we act in concert. We have the numbers, the arms, and if we learn to act as jurors and citizen donors to legal defense funds, we have the means to ensure that proper accountability is maintained. Those who do badly will be punished, but those who do well can be defended by their fellow citizens.

VIII. Conclusion

A proper theory of the militia requires us to recognize that it has both the revolutionary function and also the function of sustaining governments of which the citizenry continues to approve. Both of these functions are defended and enshrined in our founding documents and compact, though only one of them is fully reflected in our laws and our jurisprudence. The right theory should embrace both.

The theory offered here is grounded in the theory of citizenship in which the citizenry are the officers of the American republic who jointly exercise the sovereign function. That theory is in turn grounded in the language of the Declaration of Independence, itself grounded — so it says — on the will of the Creator. That will is that we should enjoy equality of our inalienable rights. Governments are instituted by their citizens to defend those rights. Should a government become destructive to those rights, it is the right of the people — the citizenry — to alter or to abolish it. The right to take up arms, on their own decision, is thus inherent in the citizenry.

Yet governments are not always destructive to the rights of the people. Hopefully, in fact, the government will take its mission seriously most of the time. In such a case, the people also have every right to insist on not having their approved system of government stolen from them. It cannot rightfully be taken from them by invasion, nor conquest, nor by insurrection. The citizenry has every right to stand up for their system of government if they want to continue to enjoy it. The right to defend their country, civilization, and values thus also is inherent in the citizenry. They do not need anyone’s permission, though each citizen must subject his or her actions to the approval of his or her fellows.

The militia is simply what we call them as a body when they do perform these military functions. In the second case, though the militia can (and sometimes must) be called by the citizens on their own authority, it is more wisely called by appropriate officers. It functions best when it trains in advance, and when the citizenry has been taught to view it as a natural function of their office as citizens.

Ultimately, while the professionalization of the use of force has advantages, the militia remains just as described in the Second Amendment:  necessary. It is necessary because the citizens cannot exercise their rights without having the option of functioning as a militia. It is necessary because government officials sometimes turn tyrannous, and even if they do not, sometimes turn on each other so that the state or the law temporarily fails. It is necessary because, finally, the citizen is the only officer of the state certain to be present for terrorist attacks.

For all these reasons, I believe the theory of the militia presented here to be true and correct. It is functional and sufficient for the current crisis, provided that it becomes widely understood. I think it also captures the history, and will serve as a fit guide for the future.

About the Author

Brad Patty

Dr. Patty advised US Army units in Iraq on information operations as part of more than a decade's involvements in America's wars. His work has received formal commendations from the 30th Heavy Brigade, the 2nd Brigade, 1st Armored Division, the 3rd Infantry Division and the 1st Cavalry Division. Dr. Patty holds his PhD in Philosophy from the University of Georgia, as well as a Master's in history from Armstrong in Savannah.