It's not about guns...
It's about citizenship
The Potowmack Institute
This file available as filed with the court in PDF format without comments at:
The NRA's Firearms Civil Rights Legal Defense Fund through counsels Halbrook and Dowlut argued correctly that the National Guard in the twentieth century has been formed under the power to raise armies of the Federal Government and therefore could be sent to foreign shores along side the army to project American power and pursue foreign policy goals. The NRA in the same brief described the militia as "the armed populace at large" presumably possessing an individual right to be armed outside of any legally authorized or permitted purpose. The Supreme Court decided in favor of the Department of Defense and against the state governors, but made no mention of the armed populace of large. It was a nice try but the armed populace at large fantasy did not get sneaked in in this case.
The machinations of how "the armed populace at large" is maintained are elaborated in the NRA's petition in
NRA v. Reno, decided in the US Court of Appeals, DC Circuit, July, 2000. The NRA lost out in that case also.
The US Court of Appeals, Fifth Circuit, gave the NRA much demagogic leverage with Judge Garwood's gratuitous obiter dictum in
US v. Emerson.
The US Court of Appeals, Ninth Circuit, took exception to the Emerson opinion in
Silveira v. Lockyer (Dec. 5, 2002).
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1989
RUDY PERPICH, GOVERNOR OF THE
STATE OF MINNESOTA, et al.,
UNITED STATES DEPARTMENT OF DEFENSE, et at.,
On Appeal from the United States Court of
for the Eighth Circuit
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
OF FIREARMS CIVIL RIGHTS LEGAL DEFENSE FUND
COMES NOW the Firearms Civil Rights Legal
Defense Fund, by counsel, pursuant to Rule 37 of
the Supreme Court Rules, and hereby moves to file
an amicus curiae brief, and in support thereof
shows the following:
The interest for the amicus is that the
Firearms Civil Rights Legal Defense Fund is a
non-profit organization established under Section
501 (c) (3) of the Internal Revenue Code to
litigate on matters affecting the Second Amendment
to the Constitution. It has undertaken substantial
historical research on the militia and the intent
of the Framers of the Constitution regarding the
militia. A primary issue in this case is the
meaning of the term "well regulated militia" as
used in the Second Amendment and the simple term
"militia" as used in Art. I, Section 8 of the
A brief of amicus curiae is desirable to alert the court to the intent of the Founding Fathers in framing the militia and army clauses set forth in the Constitution and Bill of Rights. The writer of the brief has published a book and numerous law review articles on the subject, and will provide original research sources which may not be otherwise available to the parties or the court. A similar amicus curiae brief was filed by the counsel in the court below and in the related case of Dukakis v. U.S. Department of Defense, U.S. Court of Appeals for the First Circuit, No. 88-1510.
No objection has been received from the appellants, Rudy Perpich et al. Counsel for amicus requested from appellants in a letter dated February 8, 1990, for written consent to file an amicus brief. Written consent will be forwarded immediately upon receipt. The solicitor General on February 13, 1990, consented to the filing of the amicus cruiae brief. The written consent is filed separately. The deadline for the reply brief of the appellants has not passed, and no party will be prejudiced by the filing of this brief. Amicus will urge that the result in the court below be affirmed.
Copies of the brief are hereby conditionally filed.
Stephen P. Halbrook*
Counsel for Amicus Curiae
*Counsel of Record
INTEREST OF AMICUS CURIAE
The interests of amicus curiae are set forth in
its motion for leave to file amicus curiae brief
and are adopted herein.
SUMMARY OF ARGUMENT
The term "militia" was understood by the
framers to mean the armed populace at large. In
contradistinction, the framers considered a select
militia, like the present National Guard, to be
part of the standing army. Since the National
Guard is a component of the standing army, and is
not the broad based militia as the framers in-
tended, the governor may not object to it being
trained in a foreign nation. Therefore, the result
reached in Perpich v. Department of
Defense, 880 F.2d 11 (8th Cir. 1989) (en
banc), is correct.
I. THE FRAMERS INTENDED THE MILITIA TO BE
COMPOSED OF THE POPULACE AT LARGE, AND CONSIDERED
A SELECT MILITIA LIKE THE NATIONAL GUARD TO BE
PART OF THE STANDING ARMY
A. The Text of the Constitution
As envisioned in the Constitution, the army and
the militia are distinct bodies. Art. I, Sec. 8
empowers Congress "to declare War, . . . to raise
and support Armies. . . [and] to make Rules for
the Government and Regulation of the land and
naval Forces. . ." Congress is also empowered:
Art. II, Sec. 2 provides: "The President shall
be the commander in chief of the Army and Navy of
the United States, and of the Militia of the
several States, when called into the actual
service of the United States . . ." This
provision makes clear that there is no national
militia, but only a "Militia of the several
States." Similarly, the Fifth Amendment provides
for grand jury indictment "except in cases arising
in the land or naval
- 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. . .
forces, or in the Militia, when in actual service
in time of War or public danger . . . ." Thus,
the militia of the several states always retains
its status as such, even though it may be called
in the "actual service" of the United States for
specified domestic purposes.
The Second Amendment guarantees: "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 right is
guaranteed to "the people," including the militia
at all times, and is not limited to "the Militia,
when in actual service in time of War or public
danger," terms found in the Fifth Amendment. The
Second Amendment presupposes that an armed
populace encourages a well regulated militia and
secures a free state.
Finally, the Tenth Amendment states: "The powers
not delegated to the United States by the
Constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to the
people." The power to raise armies is delegated to
the United States and prohibited to the states,
while the power over the militia is reserved
exclusively to the states, except as delegated to
Congress in Art. I, Sec. 8.
B. Experiences of the Revolution
From the outset of the Revolution in 1775 through
the adoption of the Militia Act of 1792, the
essential character of the well regulated militia
espoused by the Founding Fathers was twofold: (1)
it was composed of the people at large, rather
than a select group, and (2) its members provided
and kept their own arms. By contrast, a small body
of trained professionals whose arms were provided
by government and which constituted a permanent
military establishment was known as a select
militia or a standing army. While an Army may be
necessary for the common defense, military
despotism would be deterred by the constitutional
militia composed of the armed populace.
"A well regulated Militia, composed of the
Gentlemen, Freeholders, and other Freemen," terms
used by George Mason in 1775, exemplify the
Founders' conception of the militia. 1 THE PAPERS
OF GEORGE MASON 215 (R. Rutland ed. 1970). Most
of the colonies used similar language when they
resolved that the inhabitants must arm themselves
and enroll in the militia. E.g., 1 P.
Force, AMERICAN ARCHIVES 1022, 1032 (1837)
(Delaware, Maryland). The Virginia Declaration of
Rights of 1776, Art. XIII, provided "that a well
regulated Militia, composed of the body of the
People, trained to Arms, is the proper, natural,
and safe Defence of a free State...."
C. The Constitutional Convention of 1787
The principles of the Revolution were remembered
at the Constitutional Convention of 1787. The
members of the convention regarded the militia as
an entity of the respective states which would be
subject to federal standards, but would be under
federal authority only when called out for
specified domestic purposes.
To reduce the need for a standing army, George
Mason proposed a power "to make laws for the
regulation and discipline of the militia of the
several states. . . . He considered uniformity as
necessary in the regulation of the militia,
throughout the Union." 3 J. Elliot, DEBATES ON THE
ADOPTION OF THE FEDERAL CONSTITUTION 443 (1845).
Roger Sherman held that "the states might want
their militia for defense against invasions and
insurrections, and for enforcing obedience to
their laws." Id. at 445. Mason agreed, moving that
the general power would not extend to "such part
of the militia as might be required by the states
for their own use." Id. Mason’s proposals were
then referred to committee.
When reported back to the convention, the Militia
Clause was worded almost exactly as finally
adopted in the Constitution. Id. at 464. The
following explanation ensued:
Madison summed up the debate by remarking that "as
the greatest danger to liberty is from large
standing armies, it is best to prevent them by an
effectual provision for a good militia" Id. at
466-67. The limited power of Congress thus extends
mainly to the adoption of uniform standards for
arms and exercises, and to governing the militia
when called into federal service for specified
MR. KING, by way of explanation, said, that by
organizing, the committee meant, proportioning the
officers and men by arming, specifying the kind,
size, and calibre of arms and by disciplining,
prescribing the manual exercise, evolutions, & . .
- MR. MADISON observed, that "arming," as
explained, did not extend to furnishing arms; nor
the term "disciplining," to penalties, and courts
martial for enforcing them. Id. at 464-65.
D. The Debate Between Federalists and
The nature of the militia and the army, and the
powers of Congress vis-a-vis the states and the
people, were fully exposited in the debate between
the federalists and anti-federalists. Madison
stated it best in The Federalist No. 46:
Let a regular army fully equal to the resources of
the country be formed, and let it be entirely at
devotion of the Federal Government; still, . . .
the State governments, with the people on their
side, would be able to repel the danger. . . . To
these [armed forces] would be opposed a militia
amounting to near half a million of citizens with
arms in their hands, officered by men chosen from
among themselves, fighting for their common
liberties, and united and conducted by governments
possessing their affections and confidence. . . .
Besides the advantage of being armed, which the
Americans possess over the people of almost every
other nation, the existence of subordinate
governments to which the people are attached and
by which the militia officers are appointed forms
a barrier against the enterprises of ambition more
insurmountable than any which a simple government
of any form can admit of.
Similarly, in The Federalist, No. 29,
Alexander Hamilton argued:
Little more can reasonably be aimed at with
respect to the people at large than to have them
properly armed and equipped.
. . . This will not only lessen the call for
military establishments, but if circumstances
should at any time oblige the government to form
an army of any magnitude that army can never be
formidable to the liberties of the people while
there is a large body of citizens, little if at
all inferior to them in discipline and the use of
arms, who stand ready to defend their rights and
those of their fellow citizens.
Tench Coxe, a friend of Madison and a prominent
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
irresistable. Who are the
militia? are they not ourselves. . . . Congress
have no power to disarm the militia. Their swords,
and every other terrible implement of the soldier,
are the birth-right of an American. 2 DOCUMENTARY
HISTORY OF THE RATIFICATION OF THE CONSTiTUTION
(Mfm. Supp.) at 1778-1780 (1976).
Richard Henry Lee ably articulated anti-federalist
demands which resulted in the Bill of Rights. Lee,
ADDITIONAL LETTERS FROM THE FEDERAL FARMER 53
(1788). Lee explained regarding the militia:
A militia, when properly formed, are in fact the
people themselves, and render troops in a great
measure unnecessary. . . . [T]he constitution
ought to secure a genuine [militia] and guard
against a select militia, by providing that the
militia shall always be kept well organized,
armed, and disciplined, and include . . . all men
capable of bearing arms; and that all regulations
tending to render this general militia useless and
defenceless, by establishing select corps of
militia, or distinct bodies of military men, not
having permanent interests and attachments in the
community to be avoided. Id. at 169.
In a passage which strikingly anticipates the
adoption of the Second Amendment, Lee stated:
In the state ratifying conventions, federalists
and antifederalists alike stressed the importance
of the mil-
itia, but disagreed over whether a bill of rights
was necessary. John Smilie warned in the
Pennsylvania convention: "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 shall be no militia at all. When a
select militia is formed; the people in general
may be disarmed." 2 DOCUMENTARY HISTORY OF THE
RATIFICATION OF THE CONSTITUTION 509 (M. Jensen
ed. 1976). By contrast, James Wilson argued that
the power of Congress was intended to establish a
uniformity of arms, not to actually furnish arms
(and thus determine who would be armed):
Men without a uniformity of arms, accoutrements,
and discipline, are no more than a mob in a camp.
" . . If a soldier drops his musket, and his
companion, unfurnished with one, takes it up, it
is of no service, because his cartridges do not
fit it. By means of this system, a uniformity of
arms and discipline will prevail throughout the
United States. 2 J. Elliot, DEBATES IN THE SEVERAL
STATE CONVENTIONS 521 (Philadelphia 1836).
In the Virginia convention, James Madison argued:
"Congress ought to have the power to establish a
uniform discipline throughout the states, and to
provide for the execution of the laws, suppress
insurrections, and repel invasions: these are the
only cases wherein they can interfere with the
militia . . . " 3 J. Elliott, DEBATES IN THE
SEVERAL STATE CONVENTIONS 90 (Philadelphia 1836).
Madison assumed that the militia consisted of the
If resistance should be made to the execution of
the laws. . . it ought to be overcome. This could
be done only in two ways either by regular forces
or by the people." If insurrections should
arise, or invasion should take place, the people
ought unquestionably to be employed, to suppress
and repel them, rather than a standing army. Id.
George Mason asked, “who are the militia, if they
be not the people of this country . . .? I ask,
Who are the militia? They consist now of the whole
people, except a few public officers." Ideally,
the militia will always “consist of all classes,
high and low, and rich and poor. . . Id.
Based on the above and on debate concerning the
right to bear arms, the Virginia convention
adopted a proposed Bill of Rights including the
following: "That the people have a 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 defence of
a free state . . . ." Id. at 659. The New York
convention recommended a similar provision which
referred to the militia as "the body of the people
capable of bearing arms." Id., 1, at 327-28.
Proposals for arms guarantees surfaced in seven
state conventions. A survey of these seven
proposals indicates that the framers of the Second
Amendment had two separate objectives in mind. The
first purpose was to recognize in general terms
the importance of a militia to a free state. The
second purpose was to guarantee a right to keep
and bear arms for all traditional purposes,
including self-defense. (Nunn v. State, 1
Ga. (1 Kel.) 243 (1846), illustrates this early
understanding.) The second purpose was plain in
the Pennsylvania, Massachusetts, and New Hampshire
conventions. The proposals from Virginia, New
York, North Carolina, and Rhode Island blended the
militia purpose with the pur-
pose to guarantee to the people the right to keep
and bear arms.
James Madison first reviewed proposals from the
state conventions before he proposed to the House
of Representatives a bill of rights that included
"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." 1 ANNALS OF CONGRESS
434 (June 8, 1789).
F. The Adoption of the Second Amendment
The House Committee on Amendments reported
Madison's proposal in this form: "A well regulated
militia, composed of the body of the people, being
the best security of a free state, the right of
the people to keep and bear arms shall not be
infringed; but no person religiously scrupulous
shall be compelled to bear arms." 1 ANNALS OF
CONGRFSS 750 (Aug. 17, 1789). In debate that
followed, Elbridge Gerry objected to the last
phase because "Congress can declare who are those
religiously scrupulous and prevent them from
bearing arms." He added:
What, sir, is the use of militia? It is to prevent
the establishment of a standing army, the bane of
liberty. Now, it must be evident, that, under this
provision, together with their other powers, Con-
gress could take such measures with respect to a
militia, as to make a standing army necessary.
Whenever Governments mean to invade the rights and
liberties of the people, they always attempt to
destroy the militia, in order to raise an army
upon their ruins. Id.
Furthermore, on Wednesday, September 9, 1789, a
motion in the Senate to insert "for the common
defence" next to the words "bear arms" was
defeated. JOURNAL OF THE FIRST SESSION OF THE
SENATE 77 (Gales & Seaton 1820). Thus, an effort
to restrict the right was defeated.
The view that the final language for the Second
Amendment was a compromise to satisfy all
competing objectives of the framers is bolstered
by the recent discovery in James Madison's papers
of an early draft of the Bill of Rights, in Roger
Sherman's handwriting, which provided for a
militia but no right to keep and bear arms. N.Y.
Times, July 29, 1987, p. Al. The Framers' ultimate
decision not to adopt the Sherman proposal
indicates that they felt it was inadequate.
As adopted, the Second Amendment was devoid of any
language that would allow Congress to disarm
lawabiding persons. It clearly expresses the idea
that a well regulated militia is composed of the
armed populace. The Second Amendment intended "for
Americans of the late eighteenth century to
possess arms for their own personal defense, for
the defense of their states and their nation, and
for the purpose of keeping their rulers sensitive
to the rights of the people." Shalhope, The
Ideological Origins of the Second Amendment,
69 J. Am. History 599, 614 (1982). See also
Levinson, The Embarrassing Second
Amendment, 99 Yale L. J. 637 (1989); Hardy,
The Second Amendment and the Historiography of
the Bill of Rights, 4 J. Law & Politics 1
(1987); Lund, The Second Amendment, Political
Liberty, and the Right to Self-Preservation,
39 Ala. L. Rev. 103 (1987); S.
Halbrook, THAT EVERY MAN BE ARMED 76 (Univ. N.
Mex. Press 1984); Malcolm, The Right of
the People to Keep and Bear Arms: The Common Law
Tradition, 10 Hastings Const. L.Q. 285 (1983);
Dowlut, The Right to Arms: Does the
Constitution or the Predilection of Judges
Reign?, 36 Okl. L. Rev. 65 (1983); Sprecher,
The Lost Amendment, 51 Am. Bar Assn. J. 554
& 665 (1965) (2 parts). The
contains a list of scholarly literature on the
G. The First Federal Militia Act
The federal Militia Act of May 8, 1792 required
every "free able bodied white male citizen" to
provide himself with a good musket or firelock. .
. ." In House debate, Rep. Parker objected that
this would be impractical for poor persons, who
should thus be armed at federal expense. 2 ANNALS
OF CONGRESS 1804 (Dec. 16, 1790). Rep. Sherman
argued that "the people of America would never
consent to be deprived of the privilege of
carrying arms." Id. at 1805. He explained:
What relates to arming and disciplining means
nothing more than a general regulation in respect
to the arms and accoutrements. There are so few
freemen in the United States who are not able to
provide themselves with arms and accoutrements,
that any provision on the part of the United
States is unnecessary and improper. He had no
doubt that the people, if left to themselves,
would provide such arms as are necesary, without
inconvenience or complaint; but if they are
furnished by the United States, the public
arsenals would soon be exhausted. . . Id.
The ultimate objection to a government-armed
populace was expressed by Rep. Wadsworth: "Is
there a man in this House who would wish to see so
large a proportion of the community, perhaps
one-third, armed by the United States, and liable
to be disarmed by them?" Id. at 1809.
Rep. Fitzsimons moved to strike the words :
"provide himself" and amend the bill to read that
every citizen "shall be provided" with arms.
Madison and others objected that this "would leave
it optional with the States, or individuals,
whether the militia shall be armed or not" "This
motion was lost by a great majority." Id.
at 1809. Thus, the first Congress to pass
legislation under the Militia Clause, saw the
militia as the body of the citizens, who kept
their own arms.
IL APPLICATION OF THE TEXT AND FRAMERS' INTENT
TO THE STATUTORY SCHEME
According to the text of the Constitution and Bill
of Rights as amplified by the intent of the
framers, the following factors are associated with
the term "militia":
1. Consists of "the people," i.e., all able
bodied persons capable of bearing arms.
2. Its members are civilians primarily.
3. They provide their own arms.
4. They privately own these arms.
5. They keep these arms in their homes.
6. Their keeping and bearing of arms is not
limited to actual militia service.
7. Its federal function is to execute the laws,
suppress insurrections, and repel invasions.
By contrast, the following are characteristics of
a standing army, including a select militia:
1. Consists of a distinct and select group, full
or part time.
2. It is a permanent military establishment.
3. The federal government provides the arms.
4. The federal government owns the arms.
5. The arms are secured in armories and are
subject to federal recall.
6. The arms are borne only in professional
military training and service.
7. Its function is war.
10 U.S.C. Sec. 311 provides that "the militia
of the United States consists of all able-bodied
males" ages 17 through 44, including the
"organized militia" (National Guard and Naval
Militia) and "unorganized milita" (all others).
The following further definitions are provided in
10 U.S.C. Sec. 101:
(9) "National Guard" means the Army National Guard
and the Air National Guard.
(10) "Army National Guard” means that part of the
organized militia of the several States
active and inactive, that:
(A) is a land force;
(11) "Army National Guard of the United States"
means the reserve component of the Army all of
whose members are members of the Army National
(B) is trained, and has its officers appointed,
under the sixteenth clause of section 8, article
I, of the Constitution;
(C) is organized, armed, and equipped wholly or
partly at Federal expense; and
(D) is federally recognized.
Finally, 10 U.S.C. Sec. 672 (b) and (d) provides
as to the Army National Guard of the United States
that members or units "may not be ordered to
active duty under this subsection without the
consent of the governor of the State" involved.
Recently adopted Sec. 672 (f) limits the consent
required, leading to the present controversy.
However, if the Guard is a component of the armed
forces, then the governor may not object to its
being trained abroad; only if the Guard is part
of the militia as constitutionally defined may the
In recognizing the fundamental distinction
between the army and the militia, the Constitution
does not anticipate that the organized militia
will be a reserve component of the Army. Although
the statute may declare the National Guard to be
the organized militia of the several states, that
does not make it so under the Constitution, any
more than would a statute that declared soldiers
under active duty to be the militia. Further, the
statute declares the Army National Guard of the
United States to be a reserve component of the
Army, clearly distinguishing it from the
When the National Guard is not on active duty as
part of the Army, it ostensibly has a hybrid
status as a state militia. However, its full-time
status as a reserve component of the Army, and its
strong dependence on the federal government, make
it far more akin to a select militia which is
really part of the Army, than the constitutional
militia of the respective states envisioned by the
framers. The historical development of the militia
and the Guard exhibits a consistent parting of the
ways between the two.
The only detailed opinion by the U.S. Supreme
Court on the nature of the militia and the Second
Amendment, United States v. Miller, 307
U.S. 174 (1939), does not even mention the
National Guard. Miller concluded:
The signification attributed to the term Militia
appears from the debates in the Convention, the
history and legislation of the Colonies and
the writings of approved commentators. These show
plainly enough that the Militia comprised all
males physically capable of acting in concert for
the common defense. "A body of citizens enrolled
for military discipline." And further, that
ordinarily when called for service these men were
expected to appear, bearing arms supplied by
themselves and of the kind in common use at the
time. Id. at 178-179.
Recent scholarship further contrasts the National
Guard from the militia as originally intended.
The Right to Keep and Bear Arms: Report of the
Subcommittee on the Constitution, Senate
Judiciary Committee, 97th Cong., 2d Sess. at 7
After the Civil War, the militia as envisioned in
the Constitution came to be relied upon less and
less. Wiener, The Militia Clause of the
Constitution, 54 Har. L. Rev. 181, 191 (1940)
states: "The militia contemplated by the
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.
. . . 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. . . . From this militia,
appropriate measures might create a “well
regulated militia” of individuals trained in their
duties and responsibilities as citizens and owners
Act of 1792, that is, the whole body of the
people, virtually ceased to exist, and the States
relied more and more upon select bodies of men.. .
who became known as National Guards. The Guards
devoted itself . . . with distressing regularity,
to strike duty. . ."
Even so, the Guard was
not part of the federal Army at that time, and was
defined by state law as a part of the general
militia of the people at large.
The Dick Act of 1903 began the transformation of
the Guard from part of the militia of the states
to a component of the Army. S. Ambrose, THE
MILITARY AND AMERICAN SOCIETY 245 (1972) states:
The Dick Act almost completely negated the
original purpose of the militia, for the Founding
Fathers saw the militia as a liberal agency that
would act in
defense of individual and local liberty against
the power of the Federal Government. The Founding
Fathers, in fact, reflecting their deep suspicion
of standing armies, went to great lengths to
insure that the Federal Government would not have
a monopoly on violence. On an individual level,
they guaranteed citizens the right to bear arms;
on the organized level, they encouraged the
development of state militia units in order to
provide a counterpower to the U.S. Army.
The Act of June 15, 1933, 48 Stat. 153, 155
created the National Guard of the United States as
a reserve component of the U.S. Army. This
enactment was pursuant to the power to "raise and
support armies," not the Militia Clause. H.R. Rpt.
No. 141, 73rd Cong., 1st Sess. at 2-5 (1933). As
stated in The Right to Keep and Bear Arms:
Report of the Subcommittee on the Constitution,
supra at 11:
The "militia" itself referred to a concept of a
universally armed people, not to any specifically
organized unit. When the framers deferred 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
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".
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. Section 311(a).
Since the Army National Guard of the United States
is a component of the Army, the states have no
authority over it whatever, and the consent of a
state governor for training exercises abroad is
not constitutionally required. Consequently, Art.
I, Section 8, Cl. 16, which reserves to the states
(without exception) "the authority of training the
militia" is irrelevant here.
Both federal and state statutes declare that the
very same force which is a component of the Army,
nonetheless constitutes the organized militia of
the states. However, the training of Guard units
abroad has been undertaken under the Army and
Necessary and Proper clauses, not under clause 16
which provides that Congress may govern such part
of the militia “as may be employed in the service
of the United States.” Moreover, the Constitution
distinguishes the Army from the Militia, and does
not anticipate that they may be one and the same.
The characteristics of the Guard as part of the
Army clearly predominate over its characteristics
as part of the militia of the respective states.
Taken as a whole, the National Guard is not the
constitutional militia as intended by the
the Militia Clause has no application here.
The Court should affirm the decision of the Court
of Appeals, but on such grounds as more precisely
identifies the constitutional status of the
National Guard as a component of the U.S. Army and
not the Militia, which consists of the people at
1 Similarly, Oliver Ellsworth proposed that "the
militia should have the same arms and exercise,
and be under rules established by the general
government when in actual service of the United
States. . . Id. He contended
that "the whole authority over
the militia ought by no means to be taken away
from the states, whose consequence would pine away
to nothing after such a sacrifice of power." Id.
Finally, Ellsworth "considered the idea of a
select militia as impracticable; and if it were
not, it would be followed by a ruinous declension
of the great body of the militia" Id. at 444.
2. Madison also opined that the states retained
broad powers over the militia. "I cannot conceive
that this Constitution, by giving the
general government the power of arming the
militia, takes it away from the state
governments. The power is concurrent, and not
exclusive." Id. at 382.
Similarly, John Marshall observed "that the power
of governing the militia was not vested in the
states by implication, because, being possessed of
it antecedent to the adoption of the government,
and not being divested of it by any grant or
restriction in the Constitution, they must
necessarily be as fully possessed of it as ever
they had been." Id. at 421.
3. Ten days later, Tench Coxe published his
"Remarks on the First Part of the Amendments,"
Federal Gazette & Philadelphia Evening Post, June
18, 1789, at 2, col. 1, which explained the above
as follows: "As civil rulers, not having their
duty to the people duly before them, may attempt
to tyrannize, and as the military forces which
must be occasionally raised to defend our country,
might pervert their power to the injury of their
fellow-citizens, the people are confirmed by the
next article in their right to keep and bear their
private arms." Madison praised the article. 12
MADISON PAPERs 239-240, 257 (1979).
4. This is not the only area in which the
Constitution requires a distinction between the
armed forces and the militia. The armed forces may
engage in war, but may not be called out to
enforce the laws, a function reserved to the
militia under Art. I, Sec. 8. E.g., 18 U.S.C. Sec.
1385 punishes "Whoever, . . . willfully uses any
part of the Army or the Air Force as a posse
comitatus or otherwise to execute the laws . . .
5. Maryland v. United States, 381 U.S. 41, 46
(1965) held: "The National Guard is the modern
Militia reserved to the States... ." In view of
Miller and the federal statutory provisions, it is
clear that, to the degree Maryland goes beyond
holding that the National Guard is the "organized
militia" which is only as far as the Court needed
to go to decide the case the statement is dictum.
6. M. Derthick, THE NATIONAL GUARD IN POLITICS
16-17 (1965) states:
Derthick further notes that in the years
after 1920, "the Guard served the interests of
business in conflicts with labor. It saw frequent
service in strikes. . . . It was attacked as the
private army of big business." Id. at 51-52. This
may explain the disuse of the people at large as
- Both observers in the 1880’s and subsequent
students have identified the labor riots of 1877
as the cause of the Guard’s sudden growth. . . .
Development of the Guard began and proceeded
fastest in the populous, industrial states of the
North. . .
The Guards received substantial private funds
from wealthy businessmen. .. . Officers of the
Guard in all of the states appear to have been
business and professional men, representative of
the "better classes."
7. State v. Wagener, 77 N.W. 424, 425 (Minn.
1898) states: "Under our Military Code, the active
militia or national guard . . . come from the body
of the militia of the state. . . ." Accord, State
v. Grayston, 163 S.W.2d 335, 337 (Mo. 1942) ("the
term 'militia' was not used as restricted to the
National Guard" but includes "every able-bodied
Current state constitutional and statutory
provisions relating to the militia are listed in
the Addendum to this brief.
8. E. Colby and J. Glass, The Legal Status of the
29 Va.L.Rev. 839, 840 (1943) states:
A separation of the National Guard from the
militia idea is the first and most necessary step.
The confusion between these two has been the cause
of much error. .. . By , although there had
long been a National Guard, there was, practically
speaking, no militia.
The article concluded "that the National Guardsmen
are actually federal troops in every sense of the
word." Id. at 852.
9. During both world wars, when National Guard units were mobilized, and states had to rely on self-armed citizens and to organize their own state protective forces for defense from invasion and agaisnt sabotage, and to keep order. E.g., M. Schlegal, VIRGINIA ON GUARD: CIVILIAN DEFENSE AND THE STATE MILITIA IN THE SECOND WORLD WAR (1949); U. S. HOME DEFENSE FORCES STUDY at 58 (Office of Sec. of Defense, 1981); Dowlut and Knoop, State Constitutions and the Right to Keep and Bear Arms, 7 Okl. City Univ. L. Rev. 177, 197, 233-35 (1982). The organization of proposd legislation. E.g., H.R. 2581 (Traficant, June, 1987); H.R. 3068 (Skelton, July 30, 1987).text@note9
© Potowmack Institute