Organizing the Militia

“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.” Article 1, Section 8, Clause 16, US Constitution

This clause is known as “organizing the militia”. The original purpose of the militia was to protect the people of the state from the federal government. The Anti-Federalists thought that the Congress would gradually let the funds for the Militia disappear. The Anti-Federalists advocated the Second Amendment to protect the citizens’ right to bear arms.

Second Amendment: “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 Second Amendment did protect the right to bear arms, but the Congress still controlled the Militia. The Militias could still function as originally intended within the State, but Congress has the power to organize, discipline, and arm the Militia for federal purposes.

With the Organizing the Militia clause, the Federalists tried to make the Militia into a national reserve of uniform, interchangeable units.

In 1792, Congress passed the Uniform Militia Act. This established an “obligated” militia. This means that all able-bodied white men between the ages of 18 and 45 had to enroll. This Militia had a very poor performance during the War of 1812. The obligated militia was disbanded. After that, the “uniformed” militia replaced it. Uniformed militia means that it was made up of people who chose to serve. The National Guard replaced the uniformed militia. The National Guardsmen remain volunteers, a Citizen-Soldier.

The National Security Act of 1916 made state militias available for overseas duty as well as being used for domestic disturbances. This functionally stripped the states of militia powers. States may call up the National Guard, but federal government needs take precedence.

“We the people” originally gave Congress the power to organize, arm, and discipline the Militia. Today, that power still rests with Congress, but the intent of having the Militia protect the people of the states from the federal government no longer exists.

The “organizing the militia” clause was originally intended to allow a means for the people of a state to protect themselves from the federal government. Today, this clause allows for “we the people” to have the National Guard for protection during domestic disturbances as well as protection here or abroad as the federal government sees fit.

References:

http://www.heritage.org/constitution/#!/articles/1/essays/56/organizing-the-militia

Click to access lesson-6.pdf

US Constitution

Always Ready, Always There

“To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions;” Article 1, Section 8, Clause 15, US Constitution

“The top priority of the federal government is the safety of this country.”
Ronald Reagan, Address to a joint session of the Oklahoma State Legislature, March 16, 1982

During the founding, the idea of a militia came from the concept of posse comitatus. This existed under British Common Law. It is the authority of a law officer to conscript any able-bodied to assist him. When order was threatened, the “shire-reeve” (sheriff) would send out a message to the citizens. Any who heard the message were obligated to assist in catching a criminal or maintaining order.

The Framers transferred the power to call out the militia from the local authority to Congress. The group known as the Anti-Federalists was against a strong central government. They felt that this gave too much power to the Congress (Federal government). They wanted the militia to stay under state control.

The debate continued and in 1795:
“Congress refined the language authorizing the President to federalize the militia:
[W]henever 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 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.” Per Mackubin Owens, writing for Heritage Foundation.

Still the argument about this continued until 1827, when the Supreme Court heard the case of Martin v. Mott. Justice Joseph Story made it clear that the President has the exclusive right to decide that a situation is serious enough to call out the militia. The state governors have concurrent authority to call out their state militia to handle civil and military emergencies.

We know that state militia as the National Guard.

There is also law in place to prevent the Army and Air Force from being used as a posse comitatus.

We the people give Congress the power to keep the National Guard trained and equipped for emergencies.

We the people get a group of (all-volunteer) citizens in training to add to the regular army when needed and to handle civil and military emergencies.

Here is a link to the National Guard web page:
http://www.nationalguard.mil/default.aspx

Here are the lyrics to the National Guard Song:
http://www.nationalguard.mil/about/song.aspx

Here is a great song about the National Guard:

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

http://en.wikipedia.org/wiki/Insurrection_Act

http://www.heritage.org/constitution/#!/articles/1/essays/55/militia-clause

US Constitution

Military Regulations

“To make rules for the government regulation of the land and naval forces;” Article 1, Section 8, Clause 14, US Constitution.

This clause is known as the Military Regulation Clause. The purpose of this clause is to establish a system of military law and justice outside the jurisdiction of the civil courts. The power to establish this was given to Congress.

Joseph Story, in Commentaries on the Constitution of the United States (1833) stated, “The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive.”

In 1775, the Continental Congress adopted codes of military law for the Army and Navy. John Adams wrote the law: Rules for Regulation of the Navy of the United Colonies (1775) and American Articles of War (1775).

After the adoption of the Constitution (1787), the First Congress decided both codes would continue. The two laws have been revised several times over the years.

In 1950, Congress passed the Uniform Code of Military Justice (UCMJ). The reason for creating this law was to eliminate differences between the Army and Navy codes and to reduce “command influence”.

Military courts fall into two categories:
1. Martial and military courts of inquiry – to deal with military personnel
2. Military commissions or tribunals – to deal with civilians who have fallen under military jurisdiction

Since 9/11, a controversial aspect of military justice is the establishment of military tribunals. Military tribunals in occupied territories are governed by International Law. In Dow v. Johnson (1880), the Court ruled that the law governing an army invading an enemy’s country is not the civil law of the invaded country or of the conquering country “but military law—the law of war.” Per Forte and Owens, writing for Heritage Foundation.

“The Court has upheld the authority of the President to try enemy aliens (and United States citizens working with them) by military tribunal in Ex parte Quirin (1942). The Court held that enemy aliens (in this case saboteurs, who had entered the United States in secret for the purpose of committing hostile acts) are not entitled to prisoner-of-war status, but are unlawful combatants who can be tried by military tribunal.” Per Forte and Owens, writing for Heritage Foundation.

With the Military Regulation clause, we the people give Congress the authority to establish and maintain the Uniform Code of Military Justice.
We the people get a separate court system for those in military service and civilians who fall under military jurisdiction. This system is specialized for the types of situations that arise during military service and in times of war or conflict.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

http://www.heritage.org/constitution/#!/articles/1/essays/54/military-regulations

A Shout Out to the Air Force and the Coast Guard

I am going to step off the topic of the Constitution for this post. I have great respect for our all-volunteer armed forces. Since I am having some fun with the music of the Army and Navy, I don’t want to neglect the Air Force and the Coast Guard. These two branches are not directly mentioned in the Constitution, but they have interesting histories as well.

The Air Force

The US Air Force became a separate military service in 1947 with the passage of the National Security Act of 1947. This Act created the National Military Establishment, which was renamed the US Department of Defense.

Prior to 1947, the responsibility for military aviation was divided between the Army and the Navy. The Army handled land-based operations; the Navy took charge of sea-based operations from aircraft carriers and amphibious aircraft.

In 1907, the Army created the Aeronautical Division, Signal Corps, which was the forerunner of the Air Force. Following that action, the organization, titles, and missions evolved to a separate branch by 1947.

Here is the song used by the Air Force:

The Coast Guard

The precedent to the Coast Guard was the Revenue Cutter Service, which was founded in 1790 as part of the Department of Treasury. The Revenue Cutter Service and the US Life-Saving Service merged to become the Coast Guard by Federal Law in 1915. “The Coast Guard as established January 28, 1915, shall be a military service and a branch of the armed forces of the United States at all times.”

In 1939, the US Lighthouse Service merged into the Coast Guard. The Coast Guard was moved to the Department of Transportation in 1967.  In 2003, it became part of the Department of Homeland Security. According to an amendment of the Coast Guard and Maritime Transportation Act of 2006, if war is declared and Congress or the President so direct, the Coast Guard operates as a service in the Department of the Navy.

Here is the song used by the Coast Guard:

I am constantly amazed by the fact that the United States of America has an all-volunteer armed service. I thank these people for their service to our country. I try to remember to pray for them daily. The extent of the benefit that this is to we the people cannot even begin to be measured!

References:

http://www.heritage.org/constitution/#!/articles/1/essays/53/navy-clause

http://en.wikipedia.org/wiki/History_of_the_United_States_Air_Force

http://en.wikipedia.org/wiki/History_of_the_United_States_Coast_Guard