Militia Law: “Warriors of the Working Day”1

Francis Wheeler was a toll taker on Concord Bridge that day in April, 1775.

With the family musket he took a toll of British troops sent to seize Patriot arms. He spent the rest of the war in the Home Guard enforcing Patriot orders and preventing the British from sending out so much as a firewood detail without a strong guard, detracting from their army’s effectiveness. The Continental Army did not have this burden; Wheeler’s low-level militia was their strong guard. A British commentator concluded that the Mother Country lost in large part because of local militias.2

 

In 1942, Mom lived in California which daily expected a Japanese invasion. Like many others, she spent time in a tower watching for unknown aircraft.

 

My distinguished ancestor’s Concord militia was designed for local defense. For extended missions, in time or territory, a strike force was recruited from the militia. The militia was treated as a mobilization system and pool of trained manpower for National Guard type missions.3 Militiamen were expected to appear carrying a gun and be familiar with its use.

Throughout the frontier period, Ranger units were organized out of the militia as a standing, if irregular, army. These Rangers were described in 1820 Missouri as “men who furnished their own horses, equipments, forage and provisions, and received one dollar per day for guarding the frontier settlements.”4

Rangers were recruited for several months at a time. The federal government paid them, although in some places the local community recruited companies and bore the cost.5 The famous Texas Rangers began as such a private local defense force well before the Texas Revolution.

In all these cases, ranger-type units were privately armed irregulars. Due to the rapid employment of such units following recruitment, familiarity with firearms was essential to readiness. As a semi-standing military force they were the elite of the militia system.

The colonial militia system would continue until the Dick Act of 1903 established the modern National Guard. Since that time some have dismissively claimed that the militia of the Second Amendment is obsolete rendering the Amendment meaningless. This insults my mother’s service in World War Two.

In 1942, Mom lived in California which daily expected a Japanese invasion. Like many others, she spent time in a tower watching for unknown aircraft. When she spotted one she picked up a telephone and reported its type and course.6 This was not as dramatic as defending a bridge but in the primitive early days of radar it was necessary. Civilian volunteers freed the military for the battlefield.

While Mom watched for planes, her boyfriend learned to fly planes through the Civilian Pilot Training Program. This program provided low-cost flying lessons with the objective of providing pilots to the military.7 Militias come in all sorts.

While mom and dad were doing their bit, various volunteer Home Guard organizations were formed. In many cases these were local vigilantes who were adopted by local or state authorities in the fashion of the 19th Century Volunteer companies.8

The Coast Guard formed a volunteer beach patrol under the Temporary Reserve Act of Congress passed 19 February, 1941. The system relied on local volunteers, including a privately-armed group of vigilantes from San Luis Obispo, California.9 The Home Guard was used for protection of critical facilities, guard duty, patrols, and in case of natural disaster or riot. It also provided pre-induction training to persons headed for the regular army.

Missouri, hardly a front line state, had five regiments of Home Guard,10 which provided 225 officers and 6,583 enlisted men to the regular army through the war.11 Similar organizations appeared in all states and territories. Many guardsmen provided their own weapons. The federal government provided a number of shotguns due to availability and anticipated riot control. Only after regular units were armed did the government provide elderly rifles.12

 

Critics of the individual rights theory of the Second Amendment claim that the Amendment only protects the states’ rights to maintain a National Guard.

 

These militia organizations were quickly given legal recognition. A California court, cognizant that it was sitting in a war zone, found that the “State Guard is only a part of the militia which consists of all able-bodied males resident in this state.”13 An opinion of the California Attorney General allowed Home Guard service to count as state National Guard service for time in rank purposes, thus recognizing the unity of the organizations as one militia.14 Alaska’s National Guard was federalized and replaced by units of the Arkansas National Guard.15 As a great deal of fighting in Alaska involves survival in Alaska, the “Tundra Army” a Home Guard of native residents, largely Eskimos, supplemented these troops. Following the war the Eskimos kept the organization going and used it to implement social reforms.16 The organization was eventually enrolled in the regular National Guard.17

In the Philippines, no less a territory than Alaska, local civilians formed guerrilla armies without prompting or authority. An October, 1944 executive order of the Philippine President gave them official status along with the pre-war Philippine army. A federal court ruled that service in such a guerrilla organization was enough to qualify for American citizenship based on military service; no formal enlistment was required.18

Certain states organized and equipped Home Guard cadres during the Korean War. In the early 80’s, there was a flurry of interest in reviving a Home Guard structure.19 However, a lack of legislation allowing the acquisition of surplus military equipment caused the effort to fizzle out.20 Following the 9-11 Terrorist War, President Bush announced a Homeland Defense advisor and a new Civil Defense force. However nothing has come of it. There is a State Guard Association of the United States to promote Home Guard organizations. It differs from private militia organizations in that it only recognizes forces affiliated with a governmental agency.21

Critics of the individual rights theory of the Second Amendment claim that the Amendment only protects the states’ rights to maintain a National Guard. This unique theory makes the Amendment redundant with Article I §8 of the Constitution, which authorizes Congress to “provide for organizing, arming, and disciplining the Militia…reserving to the States respectively, the appointment of the Officers, and the Authority of training the Militia…” Since the Constitution already protected the state militia, it was not necessary to do so again in the Second Amendment. Clearly the Second Amendment refers to something other than the National Guard.

There are substantial records indicating that the Founders were concerned over the power of the federal government to federalize the militia and march it away to oppress persons in other parts of the Union. As was their caution, they recognized the classic militia and divided the militia power into the organized militia armed by congress and the unorganized militia with a “right of the people to keep and bear arms.”

Federal law defines two classes of militia; the “organized”, the National Guard, and “unorganized”, everyone else.22 This distinction has been recognized since the days of Francis Wheeler and Concord Bridge. but is not a quaint antique. The current statute was passed in 1956 and amended in 1958. Nearly all states have a similar definition.

 

The federal government has absolute authority over what equipment, organization and training the National Guard unit shall have.

 

The states are joined in this definition by the Geneva Convention, which recognizes militia organizations to include militias, volunteer corps, organized resistance movements, persons accompanying the armed forces, and:

(6) Inhabitants of a nonoccupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.23

 

This recognition allows the unorganized militia member to be treated as a lawful combatant for prisoner of war status. This may seem to be a dubious benefit but historical treatment had been somewhat less lenient than Guantanamo Bay, for those not executed.

The National Guard is not a counterbalance to federal authority. The U. S. Supreme Court has ruled that the use of the National Guard is completely at the discretion of the federal government.24 Since the Guard can be disarmed, disorganized and dispatched at federal will, it is not an effective balance to federal power; it is federal power.

Further, federal law makes it clear that all National Guard equipment belongs to the federal government.25 Even equipment purchased by the state belongs to the federal government.26 The federal government has absolute authority over what equipment, organization and training the National Guard unit shall have.

By next summer the Supreme Court will rule on the meaning of the Second Amendment. Two hundred years of law and practice shout that it means that we are all the militia and we have a right to bear arms.

 

[ Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense. ]


Please send questions to

Kevin L. Jamison
2614 NE 56th Ter
Gladstone, Missouri 64119-2311
KLJamisonLaw@earthlink.net

Individual answers are not usually possible but may be addressed in future columns.

This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney.

 

  1. Fortescue; Sir John The War of Independence, Stackpole Books Mechanicsburg Penn 2001 at 258.
  2. Fortescue; Sir John The War of Independence, Stackpole Books Mechanicsburg Penn 2001 at 258.
  3. Stone, A Brittle Sword, The University Press of Kentucky Lexington Kentucky 1977 at 2-3 & 72. See also Dupuy The National Guard, Hawthorne Books Inc 1971 at 5, 13, & 47; Johnson Militiamen, Rangers and Redcoats, Mercer University Press Macon Georgia 1992 and Matloff Ed. American Military History, Army Historical Series, office of the Chief of Military History, United States Army, Washington DC 1969 at 29.
  4. Jordan & Kaups The American Backwoods Frontier, the Johns Hopkins University Press, Baltimore and London 1989 at 69.
  5. Colter-Frick Courageous Colter and Companions L.R. Coulter-Frick Washington Mo 1997 at 128.
  6. Mom admits she did not know who was on the other end of the telephone. I pointed out that the other end could have been in Tokyo for all she knew. She has pointed out that I am not too old to be spanked and I have decided to drop the matter.
  7. Pisano To Fill the Skies With Pilots, University of Illinois Press Chicago Ill 1993 and conversations with Dad.
  8. Historical Evaluation and Research Organization U.S. Home Defense Forces prepared for the Office of the Ass. Secretary of Defense NOVA Publications McLean VA 1981.
  9. Bishop, Footprints in the Sand Pictorial Histories Publishing Co Missoula Montana 1989 at 59.
  10. Letter to author from Capt. Clyde B. Martin Chief, Archives Branch Mo. National Guard.
  11. U.S. Home Defense Forces op cit at 68.
  12. Stentiford Barry M. The American Home Guard, Texas A & M University Press College Station TX 2002.
  13. Martin v Riley, 123 P.2d 488 (Calif 1942) at 496.
  14. 2 Op Atty Gen 22 (Calif 1943).
  15. This was the Army after all.
  16. People were less willing to discriminate against armed Eskimos.
  17. Marston, Men of the Tundra, October, House Inc N.Y. 1969 at 2.
  18. Petition of Augustin, 62 F.Supp. 832 (N.D. Calif. 1945) at 836
  19. “Home-front state militia is considered” K.C. Times 23 April, 1981 page A-11 and Army Magazine April, 1978 at 66.
  20. “State defense force in a ‘holding pattern’” Kansas City Star 18 December, 1983.
  21. www.sgaus.org.
  22. 10 U.S. Code §311.
  23. Geneva Convention Relative to the Treatment of Prisoners of War, 12 Aug, 1949 art 4(A).
  24. Perpich v Department of Defense, 496 U.S. 334 (1989) at 339.
  25. 32 U.S. Code §107(e).
  26. 32 U.S. Code §703.

This article is featured in the following categories:

Published By USCCA

We're here to help you

Prepare and Protect Your Family

  • - Knowledge
  • - Training
  • - Trusted Legal Protection