State militias and the United States: changed responsibilites for a new era

John F. Romano

I. INTRODUCTION

The Constitution of the United States was established, in part, to "insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." (1) Written over two hundred years ago, the Constitution seeks to achieve these goals in ways that frequently reflect the times of a bygone era. Perhaps no other aspect of this document and the plan of government it established is more indicative of the unique time period in which it was drafted than those provisions that concern themselves with state militias and the presence of a standing army. (2) Although these provisions generated a great deal of debate at the time, (3) the rationale behind them is largely meaningless to modern Americans. (4) In fact, as will be discussed in this article, the present day organization and responsibilities of the National Guard, the modern equivalent of a state militia, directly contravene the principles and rationales of the framers. (5)

Part I of this article will discuss the various provisions in the Constitution and other documents of the United States dealing with state militias. It will also discuss the arguments made by the framers espousing the constitutional theory behind these provisions, as well as the history and contemporaneous thoughts regarding these institutions. Part II will explore the evolution of the militia in American history and analyze this evolution in light of the constitutional underpinnings of its existence. This article will conclude that state militias, while serving an integral purpose in modern American society, no longer fulfill their purpose as originally planned in the Constitution.

II. STATE MILITIAS AND THE CONSTITUTION

A. Militias, Armies, and the Texts of United States Documents

The Constitution makes mention of militias in two separate provisions--one relating to the powers of Congress and the other to the powers of the President. In the former, in what are known as the militia clauses, (6) the Constitution details the specific powers of Congress and the limitations on that power as regards state militias. Article I, section 8, clause 15 states that Congress shall have the power "[t]o provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." (7) Article I, section 8, clause 16 provides that Congress shall have the power of "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." (8) In order to better understand these limitations, they must be contrasted with Congress's power as regards the Army, which is stated in Article I, section 8, clause 12. That provision simply states, "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." (9) While the latter limitation does serve to limit Congress's ability to fund a large standing army, unlike as in the militia clauses there is no limitation on Congress's ability to use that army. (10)

The second mention of the militia occurs in Article II, which details the powers of the President. Section 2 states that "[t]he President shall be 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." (11)

Militias are also explicitly mentioned in the Second Amendment to the Constitution. That amendment states, "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." (12)

Integral to understanding the constitutional role of state militias is a comprehension of how other military issues are treated in the Constitution and other state papers. For example, although the Constitution allows Congress to raise an army, the earlier Articles of Confederation relied on the states to provide all land forces. (13) Similarly, the Declaration of Independence lists several military issues as grievances against the King. It states that he "has kept among us, in time of peace, standing armies, without the consent of our legislatures," and that he has "affected to render the military independent of, and superior to, the civil power." (14) These criticisms of military use and power can also be seen in the Bill of Rights. The Third Amendment prohibits the quartering of soldiers (15) and the Fifth Amendment explicitly places the rule of civil law above military might. (16) Although these provisions quite clearly indicate the mindset of the framers, a look at the arguments in the Federalist Papers further elucidates the theories at work.

B. The Constitutional Theory--"The Federalist Papers"

The authors of the Federalist Papers discuss militias and standing armies in several of the papers. These papers espouse two main arguments regarding these institutions and the requirement that both be present in the Constitution. (17) The first argument is that standing armies pose a threat to liberty, and that militias will serve as a bulwark to this threat. The second, somewhat contradictory argument, (18) is that militias are ineffectual and cannot be relied upon to furnish for the common defense.

1. The Militia is Necessary to Curb the Need for, and the Power of the Standing Army

Those papers that espouse the first argument above generally begin by pointing out that some sort of military will be required to defend the nation. For example, in Federalist 8, Alexander Hamilton states that "[s]afety from external danger is the most powerful director of national conduct." (19) In Federalist 24, Hamilton argues that "savage tribes" as well as the British and Spanish pose threats that must be protected against. (20) It is even conceded that force will sometimes be needed simply to govern. Likely referring to Shays' Rebellion, (21) Hamilton writes in Federalist 28 that "the idea of governing at all times by the simple force of law ... has no place but in the reveries of those political doctors, whose sagacity disdains the admonitions of experimental instruction." (22)

After establishing this, these papers argue that it would be unwise to create a large standing army. In Federalist 8, Hamilton describes standing armies as having "a tendency to destroy [a nation's] civil and political rights." (23) The authors of the Federalist Papers conclude, however, that this is not a legitimate fear under the Constitution. (24) Because the Constitution provides for state militias, they argue, there will never be a need for a large standing army. In Federalist 26, Hamilton writes that a large army will not be needed because of "the aid to be derived from the militia, which ought always to be counted upon, as a valuable and powerful auxiliary." (25)

In Federalist 29 and 46, Hamilton and James Madison, respectively, also argue that a standing army need not be feared because the militia itself could be used to defend the people from any oppression that the army might inflict. Hamilton writes, "[I]f 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 own rights and those of their fellow citizens." (26) Madison is even more forceful in his comments. In Federalist 46, he argues that any standing army created by the federal government would be opposed by a "half a million [] citizens with arms in their hands" which would "form[] a barrier against the enterprises of ambition more insurmountable than any which a simple government of any form can admit of." (27)

Although the prospect of state militias protecting the freedom of the people from the standing army of the United States might sound incredible and completely unnecessary to the modern reader, a look at the history and prevailing notions at the time of the framing reveal this to be a major concern. (28) Fear of standing armies can be traced to ancient times. Julius Caesar, upon crossing the river Rubicon with his army, broke an ancient law which forbade armies from crossing that barrier and entering Italy. (29) After the Roman Empire was established, standing armies which protected the borders from invasions became anathema to the rule of the emperor, and thus these armies were separated into small groups so as to disperse their power. (30) In more modern times, all Englishmen would be aware of the English Civil War that had occurred in the mid-1600's. After King Charles I raised an army and unsuccessfully stormed Parliament, war broke out. Eventually Oliver Cromwell seized the military power, purged Parliament of dissenters, and named himself "Lord Protector." (31) After Cromwell's death, an army simply marched on London and installed Charles II as King of England. (32) The problem of standing armies in England would not be resolved until 1689, when William and Mary peacefully gained control of England and agreed not to raise a standing army without the consent of Parliament. (33)

This concern also found itself into the political philosophy of the time. In his Second Treatise of Government, John Locke writes extensively about the need for a government that relies on the "consent of the governed" and which has declared laws and rules that are known by, and applicable to, all persons. (34) This form of government is contrasted with tyranny, which Locke defines as "the exercise of power beyond right, which no body can have a right to." (35) Thus Locke argues that a government which exceeds its bounds may be rightly opposed by the people. (36) Similarly, in his On the Social Contract, Jean-Jacques Rousseau identifies the same problem with a government that exceeds its powers. For Rousseau, the people form a social contract which advances the "general will." (37) When the government no longer administers the state in accordance with this will, then the state is deemed dissolved and the government nothing more than an unlawful tyrant. (38) Given this prevailing political philosophy and the history of might exercised by standing armies, it is not surprising that the framers as well as all "[m]en of republican principles [were] jealous of a standing army as dangerous to liberty." (39)

2. The Militia is an Ineffective Body and Thus a Standing Army is Required

Although the framers feared a standing army, they did think it was necessary to provide for one in the Constitution. The reason for this is evident from Federalist 25. In that paper, Alexander Hamilton makes clear that state militias alone would not be sufficient to provide for the common defense of the nation. (40) Hamilton writes of the suggestion that the militia would be sufficient for such a purpose, that "[t]his doctrine in substance had like to have lost us our independence. It cost millions to the United States, that might have been saved. The facts, which from our own experience forbid a reliance of this kind, are too recent to permit us to be dupes of such a suggestion." (41) Hamilton concludes that a "regular and disciplined army" can only be successfully opposed "by a force of the same kind." (42)

Just as their fear of standing armies, the framers' lack of confidence in state militias was grounded in history and theory. Although the militia "by their valour on numerous occasions, erected eternal monuments to their fame" (43) during the American Revolution, it was generally realized afterwards that it was not a force that could compete with the regular British army. (44) In fact, early in the war effort, George Washington informed Congress that" '[t]o place any dependence upon Militia, is, assuredly, resting upon a broken staff.' " (45) Thus, the Continental Congress created the Continental Army in 1775, and this force handled most of the war effort. (46)

In his Wealth of Nations, Adam Smith emphasized the inferiority of militias as compared to trained standing armies. (47) Smith studied the history of military encounters and concluded that it bears testimony to the "irresistible superiority which a well-regulated standing army has over a militia." (48) He noted that the Roman army routed those nations that depended upon militias, and that in the later years of the Empire, when militias took hold, it could not defend itself from the barbarous nations surrounding it. (49) Thus, Smith believed that the only proper way to provide for the common defense would be to have a standing army which was placed under the control of civilian authority. (50)

Thus, these two prevailing opinions, that standing armies are dangerous, but also that they are necessary, shaped the Constitution and resulted in the creation of both a standing army and state militias.

III. THE EVOLUTION OF STATE MILITIAS IN THE UNITED STATES

An understanding of the evolution of state militias, and military power generally, in the United States is best undertaken by examining how the above two arguments regarding state militias played out after the ratification of the Constitution.

A. The Prescience of Federalist 25--Militias Prove Ineffectual

The very first action relating to militias was the Militia Act of 1792. (51) The act formed the militia, which was essentially all men between the ages of eighteen and forty-five. (52) In accordance with its constitutional powers and its fear of military use domestically, Congress also passed laws authorizing presidential use of the state militias to execute federal laws, suppress insurrections, and repel invasions. (53) This power was soon exercised by President Washington. After western Pennsylvanian farmers ejected the federal marshal and threatened to disturb all federal authority in the region, President Washington called forth the militia and personally led them to the site of the insurrection. Upon their arrival the rebels dispersed and the Whiskey Rebellion was quashed. (54)

Following this success, however, the militia, as an institution, displayed its limitations and weaknesses. When called upon to assist with the War of 1812, the militia proved a spectacular failure. (55) In some states, the governor steadfastly refused to provide the militia that the president had requested. (56) In those instances where it did report, the militia frequently performed poorly. New York militiamen refused to battle the British in Canada, arguing that such behavior could not possibly be required to "repel invasions." (57) In those battles which it did join, the militia distinguished itself as excelling in speedy retreats. (58) All-in-all, the War of 1812 seemed to confirm Hamilton's belief that the militia could not possibly stand as the nation's sole line of defense.

Following the war, the constitutional limitations placed on the militia continued to limit its use. The Mexican War, being fought on foreign soil, had no constitutional place for state militias. (59) The Civil War witnessed militia contributions, but the overall impact of state militias was small, due primarily to eighteenth-century congressional legislation limiting service to just three months. (60) The result was that the state militias became neglected and in a matter of years had become close to obsolete. It was not until the twentieth century, when President Theodore Roosevelt asked for an overhaul, that anything was done to improve the militia system. (61)

B. The Evolution of Militias and the Erosion of the State/Federal Distinction

With the ineffectiveness of the militia becoming readily apparent, the federal government moved to strengthen the militia so as to provide for a useful force for the common defense of the nation. In 1903, Congress passed the Dick Act. (62) The Dick Act provided for an organized militia, the National Guard, which would be equipped and trained with the use of federal funds. (63) By 1908, this increased support and funding had transformed an unorganized militia into a supported, organized state militia system of 105,000 militiamen. (64)

The National Defense Act of 1916 followed shortly thereafter. This act allowed for the "federalization" of the National Guard. (65) In effect, the act provided that the National Guard could be called into federal service, at which point guardsmen would be part of the army, and not the state militia. (66) This change in characterization had tremendous implications. As noted earlier in Part I.A., the militia clause of the Constitution limits the uses of the militia by the federal government. The use of the army, under the army clause, is not so limited. Thus, when federalized, the National Guard is no longer subject to the restrictions of the militia clause and may be used in the same way as the standing army. (67)

Federalization also impacts the standing of the militia under an 1878 act of Congress--the Posse Comitatus Act. (68) That act, as amended, makes it a crime to authorize the use of the "Army or the Air Force as a posse comitatus or otherwise to execute the laws." (69) When federalized, the militia is deemed a part of the Army, and thus the act would apply to prohibit its use in enforcing the laws. (70) The act, however, under its own terms, does not apply "in cases and under circumstances expressly authorized by the Constitution or Act of Congress." (71) Thus, the act has been deemed not to be violated when the army, including the federalized national guard, have been used to put down insurrections and to enforce federal laws in times of rebellion. (72) In fact, these bases were used to authorize the use of federal troops and the national guard in desegregating the schools of Little Rock, Arkansas in 1957. (73)

1933 amendments to the National Defense Act established two distinct organizations--the National Guard of the various States, and the National Guard of the United States. (74) Upon enlisting, guardsmen are members of both, and pledge allegiance to both the state and the federal government. Later amendments and cases have established that the National Guard may be federalized at any time and that guardsmen may be sent anywhere in the world. (75)

C. Federal Power versus State Power--The Proper Role of Militias

As discussed above in Part I.B.1., the theory behind the necessity for state militias was that they could provide a necessary bulwark against the power of a standing army. With the increasing federalization of the National Guard, however, one must question what the proper role of the Guard is in a changing society.

A starting point to this analysis must be an examination of the state's power over its militia. It is long-settled law that the governor of each state has almost unbridled power over its militia. (76) In Martin v. Mott, the Court dealt with the question of who decides when the militia is required for service. (77) Since in this case the President had called out the militia, the Court determined that he was the "sole and exclusive judge" of the necessity for their services. (78) Later courts have applied this principle to governors in their decisions to use the militia. (79) If governors have this power, and the original theory behind state militias was that they would curb excessive federal power, then the inevitable question is whether states can use their militias against what they view as intrusive and unauthorized federal power.

The Court dealt with this issue in Sterling v. Constantin. (80) In that case, the governor of Texas called out the National Guard to enforce a regulation limiting oil production from specific oil fields. This action was undertaken despite a federal court injunction that prohibited the governor from enforcing the regulation. (81) The Court held that the governor's actions were improper. While recognizing that the governor's decision about when to use the militia is "conclusive," (82) the Court found that such use would only be proper if done to uphold the rule of law, rather than to "nullify it." (83) Thus, the distinction made by the Court is that the governor's decision to use the militia is beyond review, but only when used in furtherance of the rule of law. It cannot be used to undermine legitimate federal action. (84)

The most striking examples of the above occurred during the school desegregation battles in the South. In 1957, Arkansas governor Orville Faubus stationed the state National Guard at high schools in Little Rock to prevent the integration of the schools that was ordered by the United States District Court for the Eastern District of Arkansas. (85) Relying on Attorney General Brownell's advice that the federal government could step in to enforce the federal court ruling, (86) President Eisenhower federalized the Arkansas National Guard and used federal troops to enforce the ruling and to implement integration. (87) Similarly, in 1963, the National Guard was caught between opposing forces. Alabama governor George Wallace used his state's National Guard to turn away black students from the University of Alabama at Tuscaloosa, despite a federal court-ordered integration plan. (88) In response, President Kennedy ordered the federalization of the Alabama National Guard. (89) Several days later, federal officials, supported by the National Guard, confronted Governor Wallace at the door of the University of Alabama and enforced the federal court's order of integration. (90)

The situation that the above examples illustrate, while revealing a supremacy of the federal government as against the states, was considered by the framers and wholeheartedly endorsed. In Federalist 16, Hamilton writes about just such a problem and concludes that the people and the federal government would be authorized to stop "illegal usurpation[s] of authority." (91) This, it seems, is the distinction. Illegal usurpations of power will not be tolerated by either the states or the federal government--and the militia will be available to ensure this. (92)

IV. CONCLUSION

The militia of today is far different than that envisioned by the framers of the Constitution. (93) Although it is at least nominally a state body, the National Guard is more properly viewed as an extension of the Army. Capable of being federalized at any time, and of serving anywhere, the National Guard plays an integral role in the country's national defense needs, both domestically and abroad. (94) Because of this relationship with the federal government, the National Guard no longer seems like the bulwark against that government which it was originally designed to play. In fact, the recent history of the Guard has seen its use in the hands of the federal government against the lawlessness of state governments. Thus, for now, the constitutional underpinnings of the state militias seem obsolete--the worries of the framers seem unimportant. In an age of increasing security measures and fears about government intrusion, however, it remains to be seen whether the framers were more prescient than we now believe. (95)

(1) U.S. CONST. pmbl.

(2) As discussed infra, the Militia Clauses of the Constitution are found in Article I, section 8. The provisions relating to the armed forces are similarly located in that section. It could be argued that slavery is an issue which more accurately reflects the unique time period in which the Constitution was drafted. Although this argument has merits, it is hard to disregard the plethora of scholarly writings at the time which dealt in large part with the ideals of representative government in contradistinction to absolutism and military rule. See, e.g., JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (C.B. Macpherson ed., Hackett 1980) (1690); JEAN-JACQUES ROUSSEAU, On the Social Contract, in THE BASIC POLITICAL WRITINGS (Donald A. Cress trans., Hackett 1987) (1754); ADAM SMITH, THE WEALTH Or NATIONS (Edwin Cannan 2004 .ed., Bantam 2003) (1776).

(3) As discussed infra in Part I.B., the writers of "The Federalist Papers" deal extensively with the subject, often advancing arguments and rebutting criticisms that many modern readers would find unthinkable. See, e.g., THE FEDERALIST NO. 46 (James Madison) (engaging in mathematical calculations to show that a standing army created by the federal government could not possibly succeed at oppressing the people of the various states).

(4) See Robert J. Spitzer, The Second Amendment "Right to Bear Arms" and United States v. Emerson, 77 ST. JOHN'S L. REV. 1, 15 (2003) (arguing that the Second and Third Amendments, which deal with militias and standing armies, respectively, have become obsolete due to changes in society); Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181, 186 (1940) (stating that "the fears of the ratifiers were not well-founded" given that the Third Amendment has never been invoked, yet noting that this shows "the prevalence of views then entertained").

(5) See, e.g., Spitzer, supra note 4, at 15 (remarking that the National Guard is primarily under the control of the federal government).

(6) See Wiener, supra note 4, at 181 n.1 (discussing the term that should be used for these provisions).

(7) U.S. CONST. art. I, [section] 8, cl. 15. In addition to these three reasons for calling forth the militia, courts have stated that Article IV, section 4 also states a valid reason for calling forth the militia. See Laird v. Tatum, 408 U.S. 1, 3 n.2 (1972) (indicating that 10 U.S.C. [section] 331, which allows calling forth the militia upon the request of a state legislature or executive, is based on the guarantee provided for in Article IV, section 4 of the Constitution).

(8) U.S. CONST. art. I, [section] 8, cl. 16.

(9) U.S. CONST. art. I, [section] 8, cl. 12.

(10) See Perpich v. Dep't of Defense, 496 U.S. 334, 348-50 (1990) (pointing out that the limitations of the militia clause do not apply to armies and similarly do not apply to militias when federalized).

(11) U.S. CONST. art II, [section] 2. The original provision recommended by the Committee of Detail at the constitutional convention left off the clause "when called into the actual service of the United States." This addition was recommended by Roger Sherman and approved by the convention. See SIDNEY M. MILKIS & MICHAEL NELSON, THE AMERICAN PRESIDENCY: ORIGINS AND DEVELOPMENT 42 (3d ed. 1999).

Note that this was an important check on military power, since it would at all times be under the administration of civilians. See Strom Thurmond, The Military Officer and the Constitution, 1988 ARMY LAW. 4, 6 (crediting civilian control of the military for the lack of military problems in this country); see also SMITH, supra note 2, at 898-99 (stating that standing armies should not be feared when they are placed in the hands of those with the greatest interest in preserving civil authority).

(12) U.S. CONST. amend. II. The right to bear arms is an issue unto itself, and thus outside the scope of this article. Needless to say, much debate has taken place over whether that right inheres in "the people" or whether it is inextricably linked to service in the militia. The Supreme Court has expended little ink on this subject. In Presser v. Illinois, 116 U.S. 252 (1886), the Court determined that the amendment applies only against actions of Congress, and not the states. Id. at 265. The Court thus held that an Illinois statute forbidding unauthorized men to parade with arms did not violate the Second Amendment. Id. at 264-65. In United States v. Miller, 307 U.S. 174 (1939), the Court held that the National Firearms Act did not violate the Second Amendment because the prohibited weapons, sawed-off shotguns, had no relationship to the preservation of a well-regulated militia. Id. at 178. Although these cases are far from clear, one commentator has stated, "All of the Court's decisions make clear that the Second Amendment is invoked only in connection with citizen service in a government organized and regulated militia." Spitzer, supra note 4, at 13. Recently, however, a 5th Circuit panel questioned this "collective rights" model of the Amendment and espoused an "individualist" model, which would protect the right to bear arms independent of service in the militia. See United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). See generally Michael Busch, Comment, Is the Second Amendment an Individual or a Collective Right." United States v. Emerson's Revolutionary Interpretation of the Right to Bear Arms, 77 ST. JOHN'S L. REV. 345 (2003).

(13) ARTICLES OF CONFEDERATION art. IX. That article provided that each state would supply forces "in proportion to the number of white inhabitants" in that state. In addition, Article VI required each state to "always keep up a well-regulated and disciplined militia, sufficiently armed and accoutred." ARTICLES OF CONFEDERATION art. VI.

(14) THE DECLARATION OF INDEPENDENCE paras. 13-14 (U.S. 1776).

(15) The Third Amendment states, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. ..." U.S. CONST. amend. III.

(16) In relevant part, the Fifth Amendment provides, "[N]or shall any person ... be deprived of life, liberty, or property, without due process of law." U.S. CONST. amend. V.

(17) See Perpich v. Dep't of Defense, 496 U.S. 334, 340 (1990) (discussing the two arguments); Wiener, supra note 4, at 184-85.

(18) See Wiener, supra note 4, at 184 (stating that the meshing of these institutions was a compromise).

(19) THE FEDERALIST NO. 8, at 45 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

(20) THE FEDERALIST No. 19, at 156-57 (Alexander Hamilton).

(21) Shays' Rebellion was led by a former Continental Army officer who was dissatisfied with debts, taxes, and the threat of land seizures. Shays led a group of farmers in a revolt against the government of Massachusetts in September 1786. The rebellion was not quashed until January 1787. See MICHAEL D. DOUBLER, I AM THE GUARD: A HISTORY OF THE ARMY NATIONAL GUARD, 1636-2000, at 65 (2001), http://www.arng.army.mil/guard_docs/presentations/guardhistorybook.pdf.

(22) THE FEDERALIST No. 28, at 176 (Alexander Hamilton).

(23) THE FEDERALIST No. 8, at 45 (Alexander Hamilton).

(24) See THE FEDERALIST No. 26, at 170 (Alexander Hamilton).

(25) Id. at 170-71; see also THE FEDERALIST No. 29, at 182 (Alexander Hamilton) (noting that the militia will curb the need for a standing army). But see THE FEDERALIST No. 25, at 162 (Alexander Hamilton) (stating that the militia is ineffectual).

(26) THE FEDERALIST No. 29, at 184 (Alexander Hamilton). But see THE FEDERALIST No. 25 (Alexander Hamilton) (stating that the militia is ineffectual); SMITH, supra note 2, at 890 ("A militia, however, in whatever manner it may be either disciplined or exercised, must always be much inferior to a well-disciplined and well-exercised standing army.").

(27) THE FEDERALIST NO. 46, at 321-22 (James Madison).

(28) See Ex Parte Milligan, 71 U.S. 2, 120 (1866) ("The history of the world had taught [the framers] that what was done in the past might be attempted in the future.").

(29) See SMITH, supra note 2, at 898 (remarking that Caesar and his army destroyed the Roman Republic by their actions); SUETONIUS, THE TWELVE CAESARS 23-24 (Robert Graves trans., Penguin Books 1957). Caesar is said to have reached the Rubicon and declared to his troops, "We may still draw back but, once across that little bridge, we shall have to fight it out." Id at 23. After seeing an apparition cross the river, Caesar exclaimed, "Let us accept this as a sign from the Gods, and follow where they beckon, in vengeance on our double-dealing enemies. The die is cast." Id. at 23-24.

(30) See SMITH, supra note 2, at 895-96 (explaining that either Diocletian or Constantine dispersed these armies so as to avoid further trouble). Interestingly enough, Smith goes on to declare that this action, in effect, made these troops into militias because they formed small enclaves and became citizens. The result was that they later proved too ineffective to repel invasions. See id.

(31) See LYNN HUNT ET AL., THE CHALLENGE OF THE WEST 578-81 (1995); Nathan Canestaro, Homeland Defense: Another Nail in the Coffin for Posse Comitatus, 12 WASH. U. J.L. & POL'Y 99, 103 (2003) (giving a brief history of the English Civil War and noting that Cromwell instituted a "military tyranny" which caused enhanced fear of standing armies by the people); see also THE FEDERALIST NO. 21, at 131 (Alexander Hamilton) (posing the question of what Shays' Rebellion could have resulted in had it been led by Caesar or Cromwell); SMITH, supra note 2, at 898.

(32) HUNT ET AL., supra note 31, at 581.

(33) See id. at 600; see also Anthony Gallia, Comment, "Your Weapons, You Will Not Need Them," 33 AKRON L. REV. 131, 146-47 (1999) (stating that the English Bill of Rights of 1689 also contained the right to bear arms, in order for the people to protect themselves from oppression).

(34) LOCKE, supra note 2, at 70-76.

(35) Id. at 101.

(36) Id. at 103 ("[W]hosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command ... and, acting without authority, may be opposed, as any other man, who by force invades the right of another.").

(37) ROUSSEAU, supra note 2, at 154-55.

(38) Id. at 193.

(39) SMITH, supra note 2, at 898; see also Ex Parte Milligan, 71 U.S. 2, 125 (1866) (declaring that the framers knew that "unlimited power, wherever lodged at such a time, was especially hazardous to freemen").

(40) THE FEDERALIST NO. 25 (Alexander Hamilton).

(41) Id. at 161-62 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

(42) Id. at 162.

(43) Id. There are numerous tributes to the efforts of the militiamen during the early years of war. An obelisk erected in the memory of those killed in the Battle of Lexington proclaims, "On the morning of the ever memorable/Nineteenth of April, An. Dom. 1775. The Die was cast!!!!! The Blood of these Martyrs, In the cause of God & their Country/Was the Cement of the Union of these States, then/ Colonies; & gave the spring to the spirit, Firmness and resolution of their Fellow Citizens." ALLEN FRENCH, HISTORIC CONCORD & THE LEXINGTON FIGHT 7 (2d ed. 1992)(1942). Perhaps one of the most famous explications of the courage and bravery of the militiamen is found in Henry Wadsworth Longfellow's poem, "Paul Revere's Ride." The penultimate verse states:

   You know the rest. In the books you have read,
   How the British Regulars fired and fled,--
   How the farmers gave them ball for ball,
   From behind each fence and farmyard wall,
   Chasing the redcoats down the lane,
   Then crossing the fields to emerge again
   Under the trees at the turn of the road,
   And only pausing to fire and load.

HENRY WADSWORTH LONGFELLOW, Paul Revere's Ride, in SELECTED POEMS 60 (1992).

(44) See DOUBLER, supra note 21, at 46 ("[T]he militia proved incapable of prevailing in battle alone against British Regulars and usually failed to provide sustained combat power during independent, extended operations.").

(45) Wiener, supra note 4, at 183 (quoting Letter, Washington to the President of Congress, Sept. 24, 1776, in 6 THE WRITINGS OF GEORGE WASHINGTON 106, 110 (1932)). Washington went on to state," 'If I was called upon to declare upon oath ... whether the Militia have been most serviceable or hurtful upon the whole; I should subscribe to the latter.'" Id. (quoting Letter, Washington to the President of Congress, Sept. 24, 1776, in 6 THE WRITINGS OF GEORGE WASHINGTON 106, 112 (1932)). It does appear, however, that Washington later became supportive of state militias as a meaningful force for the defense of the nation. See id.; see also John W. Vessey, Foreword to DOUBLER, supra note 21, at 6-7 (indicating that after the war Washington proposed a five-point plan for the national defense which included a well-organized militia).

(46) See DOUBLER, supra note 21, at 50.

(47) Using his economic theory of division of labor, Smith predicted that as society became more advanced, militias would become increasingly obsolete. As will be discussed infra, his prediction and rationale are highly applicable to the evolution of the military in the United States.

(48) SMITH, supra note 2, at 892.

(49) See id. at 895-96.

(50) See id. at 898-99.

(51) 1 Stat. 264 (1792).

(52) See Wiener, supra note 4, at 187.

(53) See id. These laws still exist and are codified at 10 U.S.C. [subsection] 331-334. The distaste for military use domestically and the concurrent preference for the use of militias, or posses comitatus, seems to have been derived from English history. The "Mansfield Doctrine" stated that uniformed soldiers acting as civilians in a posse could do what the actual military should not do--enforce the laws. See Canestaro, supra note 31, at 104-05. In fact, one of the colonists' biggest complaints was the use of the British military, instead of a posse, to put down the insurrection that became the Boston Massacre in 1770. See id. at 106-07.

(54) See MILKIS & NELSON, supra note 11, at 79-81 (describing the Whiskey Rebellion, which took place in 1794); Wiener, supra note 4, at 188 (noting that the president used his powers under the recently-enacted statutes to quash the rebellion).

(55) See DOUBLER, supra note 21, at 79 ("The War of 1812 revealed glaring inadequacies in the militia system and raised serious questions regarding the responsibilities the federal government and the States shared for the common defense."); see also Selective Draft Law Cases, 245 U.S. 366, 384-85 (1918) (explaining that Congress turned to its army powers when the militia failed to fulfill its war needs).

(56) See DOUBLER, supra note 21, at 79 (noting that the governors of the New England states did not support the war effort and thus questioned the constitutionality of calling forth the militia in this situation); Wiener, supra note 4, at 188.

(57) Wiener, supra note 4, at 189; see also DOUBLER, supra note 21, at 80 ("On as many as half a dozen occasions, Ohio and New York militia units refused to cross into Canada to attack British positions.").

(58) DOUBLER, supra note 21, at 80-81 (detailing what became known as the "Bladensburg Races," which led to the burning of Washington D.C. by the British).

(59) See Wiener, supra note 4, at 190. But see DOUBLER, supra note 21, at 92-93 (pointing out that many militiamen joined volunteer corps that were formed for the war).

(60) See Wiener, supra note 4, at 190-91.

(61) See Perpich v. Dep't of Defense, 496 U.S. 334, 341 (1990). Before President Roosevelt's entreaty, the militia was still governed by eighteenth-century laws and requirements. A male between the ages of 18 and 45 in the year 1901 was expected, under the law, to furnish himself with "a good musket," and "a sufficient bayonet." See Wiener, supra note 4, at 194.

(62) 32 Stat. 775 (1903).

(63) See Perpich, 496 U.S. at 343; United States ex rel. Gillett v. Dern, 74 F.2d 485, 486 (D.C. Cir. 1934); Wiener, supra note 4, at 193-97.

(64) See Wiener, supra note 4, at 197.

(65) See Perpich, 496 U.S. at 343.

(66) See id.; see also 10 U.S.C. [section] 12406 (giving the power to the president to call Guard members into federal service).

(67) See Perpich, 496 U.S. at 348-50 (explaining that since the army clause does not limit the federal government, the federalization of the National Guard subjects it to duty on the same terms as the Army); Wiener, supra note 4, at 200 (indicating that federalization thus means that guardsmen can serve abroad).

(68) 18 U.S.C. [section] 1385.

(69) Id.; see also Gilbert v. United States, 165 F.3d 470, 472 (6th Cir. 1999) ("The Act reflects a concern, which antedates the Revolution, about the dangers to individual freedom and liberty posed by use of a standing army to keep civil peace.").

(70) See Canestaro, supra note 31, at 126. When not under federal control, the members of the National Guard are not covered by the act. See Gilbert, 165 F.3d at 472-73 (concluding that guardsman was under state control and thus his use in this arrest did not violate the act); United States v. Hutchings, 127 F.3d 1255, 1257-58 (10th Cir. 1997) (determining that guardsmen were not under federal control and thus did not violate the act).

(71) 18 U.S.C. [section] 1385. There are numerous examples of such laws. See 10 U.S.C. [subsection] 331-334 (allowing the use of the National Guard and the military to put down rebellions, enforce federal laws, and guarantee application of constitutional rights); 10 U.S.C. [subsection] 371-382 (allowing military involvement in certain aspects of the war on drugs and the war on terror).

(72) See, e.g., 41 Op. Att'y Gen. 313, 329-30 (1957) (stating that the act does not apply because 10 U.S.C. [subsection] 332-333 allow for the use of military forces to put down rebellions which interfere with the enforcement of United States laws); 16 Op. Att'y Gen. 162, 163-64 (1878) (explaining the steps that the president would have to take to use troops to quash resistance to internal revenue collection in Arkansas).

(73) See Exec. Order No. 10,730, 22 Fed. Reg. 7628 (Sept. 24, 1957) (calling for use of troops in Arkansas because persons there have "wilfully obstructed the enforcement of orders of the United States District Court for the Eastern District of Arkansas"); 41 Op. Att'y Gen. 313, 327-30 (1957); see also 28 Fed. Reg. 5707 (June 11, 1963) (ordering the obstruction of justice in Alabama to end, and relying on 10 U.S.C. [subsection] 332-334 for this power). See generally DOUBLER, supra note 21, at 213-14 (discussing the National Guard's role in desegregation).

(74) See Perpich v. Dep't of Defense, 496 U.S. 334, 345 (1990). The Court explained that the creation of two organizations was necessitated by the aftermath of World War I. After having been federalized, guardsmen were not restored to state service, thus destroying the membership of state militias. The 1933 amendments rectified this problem by creating simultaneous enlistment and membership in two organizations. See id. at 345-46.

(75) See id. at 346-54. Perpich dealt with the Montgomery Amendment to the National Defense Authorization Act. The amendment eliminated gubernatorial consent as a prerequisite for federalization of the National Guard. The consent requirement was originally added in 1952 when the state of national emergency requirement was eliminated. The unanimous Court held that in the sphere of military affairs there is "supremacy of federal power." Id. at 351. The militia clause in no way restrains the power of Congress over armies and the national defense, and thus the federal government may federalize the National Guard when it desires and use it how and where it desires. Id. at 348-50.

(76) Sterling v. Constantin, 287 U.S. 378, 399-400 (1932); Moyer v. Peabody, 212 U.S. 78, 83 (1908); Luther v. Borden, 48 U.S. 1, 45-46 (7 How.) (1849); cf. Martin v. Mott, 25 U.S. 19, 29-30 (1827).

(77) 25 U.S. 19, 29-30 (1827).

(78) Id. at 32. The Court stated, "[I]n many instances, the evidence upon which the President might decide that there is imminent danger of invasion ... might reveal important secrets of state, which the public interest, and even safety, might imperiously demand to be kept in concealment." Id. at 31.

(79) See Sterling, 287 U.S. at 399 (stating that governor's decision as to need for National Guard "is conclusive"); Morgan v. Rhodes, 456 F.2d 608, 610-11 (6th Cir. 1972) (refusing to second-guess the decision of the governor to use the militia at Kent State), rev'd on other grounds sub nom., Gilligan v. Morgan, 413 U.S. 1 (1973); cf. United States ex rel. Gillett v. Dern, 74 F.2d 485, 487 (D.C. Cir. 1934) (explaining that when not in federal service, the Guard is within the exclusive province of the state); People ex rel. Leo v. Hill, 126 N.Y. 497, 503-04 (1891) (finding that the governor's power to disband portions of the militia is plenary).

This question seems dependent on what political actor is in charge of the militia at the time. A somewhat related issue was raised and dealt with following the death of four students at Kent State University in 1970. The Court in that case determined that the training of the National Guard had been vested in Congress, and thus it would be inappropriate for the judiciary to become involved. Gilligan v. Morgan, 413 U.S. 1, 6-10 (1973) (deeming the issue a non-justiciable political question).

(80) 287 U.S. 378 (1932).

(81) Id. at 387-88.

(82) Id. at 399 ("His decision to that effect is conclusive.").

(83) Id. at 402-04. The Court stated that if the governor could simply disregard federal court rulings, then "fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land." Id. at 397.

(84) Cf. U.S. CONST. art. VI ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.").

(85) See 41 Op. Att'y Gen. 313, 315-17 (1957); DOUBLER, supra note 21, at 213.

(86) 41 Op. Att'y Gen. 313, 324-27 (relying on 10 U.S.C. [subsection] 332-333, which authorized the president to use the military to enforce federal laws where the states are unable or unwilling to do so).

(87) Exec. Order No. 10,730, 22 Fed. Reg. 7628 (Sept. 24, 1957); 41 Op. Att'y Gen. 313, 329; DOUBLER, supra note 21, at 214 ("Presented with orders straight from the federal commander in chief, the Arkansas National Guard responded by disregarding further directions from Governor Faubus. Angered by Eisenhower's move, Faubus referred to his own Arkansas National Guard as 'occupation troops.'").

The President acted under the powers granted in 10 U.S.C. [subsection] 332-333. The former authorizes action when "rebellion against the authority of the United States make[s] it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings." 41 Op. Att'y Gen. 313, 327. The latter is to be used when insurrection causes a situation where a class of people are "deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law...." Id.; see also In re Debs, 158 U.S. 564, 582 (1895) ("If the emergency arises, the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws."); 41 Op. Att'y Gen. 313, 332 ("When a local and State Government is unable or unwilling to meet [the threat of mob rule], the Federal Government is not impotent.").

(88) See DOUBLER, supra note 21, at 214 (stating that the students, who were escorted by Department of Justice officials, were turned away personally by Governor Wallace).

(89) See id.

(90) See id. at 215 (indicating that the governor made a short statement vowing to continue to work against integration, and then stepped aside and allowed the students to enter); see also Alabama v. United States, 373 U.S. 545, 545 (1963) (refusing to find any basis for damages by the state for the actions of the federal government in stationing troops in preparation of action under 10 U.S.C. [section] 333).

(91) THE FEDERALIST NO. 16, at 104 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

(92) See supra notes 34-39.

(93) For a wonderful discussion of the natural progression from a militia-based force to a professional military force, see book five, chapter one of the Wealth of Nations. Smith gives two reasons for this development. The first is that advances in society make war more about skill than strength. The second is that as society grows, the goods and services offered by citizens become more essential, and thus citizens cannot simply leave their professions when militia service calls. He writes, "[I]t is necessary that [military service] should become the sole or principal occupation of a particular class of citizens, and the division of labour is as necessary for the improvement of this, as of every other art." SMITH, supra note 2, at 886-87. It is hard to argue that this is not what happened in the United States.

(94) See generally The Army National Guard: At Home ... Overseas ... America's 911 (indicating that the Army National Guard composes 34% of the Army force structure and that guardsmen are currently deployed around the globe), http://www.arng.army.mil.

(95) See generally Canestaro, supra note 31 (discussing homeland security and the increasing presence of the military in the United States).

John F. Romano *

* Mr. Romano (B.A. Fordham University, J.D. St John's University) is a law clerk to the Honorable John E. Sprizzo, S.D.N.Y. With many thanks to Professor Thomas F. Shea, whose love of the Constitution is an inspiration to all he teaches.

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