Toward an operational definition of the militia
I'd previously discussed the relationship of the National Guard to the concept of militia (see here, and here, and here). Here I'd like to take a functional approach: what did the Framers see as the critical features of the "militia," and how well does the present NG match up to them?
We start with Madison's Federalist 46. Madison is answering fears that the Army Clause will permit Congress to establish, and perhaps use oppressively, a standing army. Madison responds that the militia is the protection against that. He attributes two key features to the militia:
1. It is officered by men chosen by State governments, not the Federal.
2. It is so large that it can defeat the any army that Congress could raise. He estimates the militia would outnumber the largest possible army by 25:1. " It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops."
Others of the period would have added:
3. It comprises the entire community, not just the "young and ardent" (Letters from the Federal Farmer) who might be inclined to adventure and ambition (remember that in 1789 a 45 year old had outlived the average lifespan and was probably a grandfather) and
4. It includes (in fact, in classical republican theory, should be limited to) landowners who have the most to lose and nothing to gain from military rule.
It looks to me as if the present NG comes nowhere near meeting 1, 2, or 3, and does an inadequate job at best of 4. So the NG is not, in a functional sense, fulfilling the role that the Framers desired for a militia. We might go farther: at the moment, its main functions are serving as a reserve component of the military, and providing manpower for war overseas (which, as I've pointed out, was specifically NOT a militia function -- it could only be called out to repel invasion, suppress insurrection, and execute the laws of the Union, three objectives that can only be met inside the US).
Vin Suprynowicz of the Las Vegas Review-Journal has done quite a bit of thinking about the militia.
In his "Additional Letters from the Federal Farmer" (1788) Richard Henry Lee, author of the Bill of Rights, insisted "A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary. ... The 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, be establishing select corps of militia, or distinct bodies of military men ... be avoided."
If we allow such select corps of armed and uniformed men to be established, Lee warned, "substantial men, having families and property" will gradually fall away from the practice of arms, until they finally find themselves "without arms, without knowing the use of them, and defenceless; whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."
In the Pennsylvania ratification convention of 1787, delegate John Smilie (among many others) issued the same warning as to what might happen without a Second Amendment — the condition they sought to a void by demanding a Second Amendment:
"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."
Isn't this precisely what we see happening, now that the rock of the Second Amendment is eroding?
Posted by: RKV at June 22, 2005 07:31 PM
Just one comment, as a member of the National Guard. I agree with you on points 2, 3 and 4, but you are in error on point 1. Officers of the National Guard (like myself) receive their commissions from the State, not the Federal government. The Feds grant us "Federal Recognition", i.e. they recognize the state commission as the equivalent of a federal one, and grant the rights and priveleges of an Army officer to us (necessary for times when we are mobilized under federal law, like now). Similiarly, enlisted soldiers enlist in the their state militia (National Guard), and agree to serve on Federal duty at the call of the President, but with the consent of the Governor.
None of which invalidates what you said about the Guard versus the militia, but wanted to weigh in with my 2 cents.
Posted by: David at June 26, 2005 01:58 AM