MILITIA - HISTORY AND LAW FAQ 2/6
                        version 1.01
                         July, 1995



Part 3.  - History of the Militia in America
--------------------------------------------

3.1   Standard Sources
Some standard works on the militia and the American military are:

  Cress, Lawrence Delbert Cress   _Citizens in Arms: The Army and the Militia
      in American Society to the War of 1812_
  Cunliffe, Marcus, _Soldiers and Civilians:  The Martial Spirit in America,
      1775-1865_
  Mahon, John K,  _The History of the Militia and the National Guard_ 
  Millet, Allan R. & Maslowski, Peter, _For The Common Defense:  A Military
      History of the United States of American:  Revised Edition_
  Riker, William H,  _Soldiers of the States_
 
One of the few Law Review articles discussing the historical militia is
"The Militia Clause of the Constitution" by Frederick Wiener 54 Harvard
Law Review 181(1940). 


3.2   Was there such a thing as a common law militia?
A.The militia were not created by the common law.  Militia law is
statutory law.  The charter of each American colony included authority to
create militia units.  All American colonies passed militia laws under the
authority granted by their charters.  All states and the federal
government have militia laws.  There never was a period of common law
militia in America. 

Interpreting statute law and the Constitution to understand the meaning of
'militia', for example, does not mean that there ever was a common law
militia.  Even if the Bill of Rights or the Fourteenth Amendment means that
laws against unauthorized paramilitary organizations are unconstitutional
the result would not change civilians into some sort of common law 
militiamen. [Note: To date these laws have been found constitutional]


3.3  Was duty in the militia voluntary in the American colonies?
A.  No, able bodied free males were required by law to belong to the
miliita by the statute law of the colony.  Whether or not they actually
served in militia units is another question.  Sometime the militia laws
were strictly enforced, sometime laxly.  The requirement for service could
be met by joining either the colony's militia in your local area or
joining (if they would have you) a volunteer militia unit.  These
companies were allowed under colonial legislation and were, of course,
subordinate to the authority of the colony.  Some colonies provided
religious exemptions to militia duty. 


3.4   Was the term "unorganized militia" used in colonial America?
A.  No.  The term for those within the militia system was simply the
militia.  A distinction was drawn between those who did their militia duty
in the compulsory units and those who did their militia duty in volunteer
units. The compulsory militia was known as trainbands, beat militia, or
enrolled militia.  The volunteer milita was known as the volunteer
militia, or the uniform militia.  The term 'uniform' referred to the fact
that the volunteers wore uniforms. 


3.5   Aren't you simplifying almost 200 years of militia history?
A.  Yes, but the concept of the militia to remember is that it was a
SYSTEM to create organized armed forces for the colony.  The militia 
could be called out by local officials for defense purposes or called
out by the colonial leadership.  There was also fighting and killing done
by groups that were not militia units. 


3.6   How did the militia change in the 1774-1775?
A.  The militia were revitalized and reorganized in the 1770's by
the colonies to provide a force to counter the British Army in the 
growing constitutional crisis over the colonies. 

"In September 1774 the Continental Congress endorsed a resolution from 
Suffolk County, Massachusetts, calling for the colonies to reorganize
the militias under leadership friendly to the "rights of the people,"
setting in motion a series of provincial actions that made the militia
the cornerstone of armed resistance to British policy through the winter 
of 1775.  Massachusetts moved first to revive the militia's 
ancient function as the armed guarantor of the civil constitution.  
In October 1774, the provincial congress instructed local committees 
of safety to assume responsibility for the training, supply, and 
mobilization of the colony's militia system.  It also directed 
the citizens in their capacity as militiamen, and "with due 
deliberation and patriotic regard for the public service," to elect
their own company officers.  Those chosen in local voting were to 
elect regimental officers to command the militia at the county level. 
The provincial congress retained the power to appoint general officers,
ensuring that the military order remained ultimately subordinate
to civil authority.

"Resolving "that a well-regulated Militia, composed of the gentlemen, 
freeholders, and other freemen, is the natural strength and only 
stable security of a free Government," the Maryland convention 
acted in December 1774 to reorganize its militia under a popularly 
elected officers corp.  ...Six month later, in an effort to provide 
a source of manpower for the newly formed Continental army,  
Congress recommended that all states adopt the republican principles
embodied in the Massachusetts militia structure. ...By early fall 
[1775] provincial assemblies in Maryland, New York, New Jersey, 
Pennsylvania, Virginia, New Hampshire, and North Carolina had taken
steps to comply with the congressional recommendations.
   - Cress, pp. 48-49


3.7   How could a Revolutionary militia be under civilian leadership?  They
      were after all, in revolt against the King? 
The militia of Massachusetts were definitely supervised by the shadow
government that the colonials had set up and which would eventually become
the Patriot government of Massachusetts.

Some  militia historians believe that the 'subverting' of the colonial 
militias by the Patriots was key to the success of the American
Revolution.[MP]

3.8   Doesn't the uncoordinated behavior of the militia during and after
      Lexington and Concord, in 1775 show that the militia were armed 
      citizens and not organized under the civilian leadership of the 
      rebellious colonies?
A. "The revolutionary government in Massachusetts directed all company
officers to prepare one-third of their command to respond instantly to
calls.  Thus were created the Minute Man units, copied then by other
colonies/states.  Minute Men first came under fire at Lexington when
Captain John Parker's company stood in the way the British march toward
Concord to confiscate military stores.  Although Parker's Minute Men 
fired the shots "heard round the world," they scarely halted the march
of the foe.  At Concord, however, militia units, some of them with 
ancient lineages --lined the rise overlooking the British line of march.
Behind them stood a company made up of old men and boys.  Still farther
behind were citizens who removed the stores the redcoats had come to
confiscate.  Foiled in their mission, the British began the return
march to Boston, only to be hit by fusillades from behind every stone
fence.  This fire came not from organized militia but from clusters of
angry citizens.  Had the marksmen been better organized, they might
have destroyed the invading column."  Mahon, p.36

The conduct of individual militiamen at Lexington and Concord was a factor of 
their hasty spur-of-the-moment mobilization, and not their lack of military
hierarchy.  If you look at the rest of the war in Massachusetts in 1775,
after the first day's events, you will see the mobilization using established
hierarchy and chain of command. [MP] 


3.9  But during the Revolutionary war, the militia were LOCALLY controlled 
     for the most, each unit formed, armed and led by the local elected 
     commander. Only the wealthier states that could afford to appoint 
     provisional state militia officers did so. Everyone else fended for 
     themselves.
A.This is not an accurate characterization of the militia as a whole.  To an 
extent, of course every militia unit was locally controlled, because the 
militia was geographically divided.  A militia general controlled the militia 
in his area of the state.  However, all the state militias were tightly 
controlled by the state governments, which called out militia units for duty, 
drafted militiamen into the Continental Army or for other purposes, set tables 
of organization and equipment, maintained a system of military justice, and in 
every other way organized the activities of the militiamen during the 
revolution.

Units were not formed, armed and led by "local elected commanders."  They were 
formed by the states, armed by a combination of individual action and the 
states, and how they were led depended entirely on state law.  Some states 
appointed all militia officers.  Other states allowed elections.  But again, 
the key is that the state determined the procedure.[MP]


3.10  How did the militias do during the American Revolutionary War?
A. The militia's performance on the battlefield against British troops was
only so-so, but nevertheless the militia was key to American victory.
Patriot militias offered a ready source of manpower in every region,
supplementing the Continental Army.  Moreover, they performed a signal
service in keeping Loyalists in line, thus handing over control of the
countryside to Patriot forces.[MP]

3.11  Did the early state leadership exercise much control over the militia?
A. When the Founding Fathers referred to the militia, they were referring to
the state organizations that had already existed for decades or even more 
than a century in some states by 1787.  These state organizations had 
extensive militia codes which regulated who would be and who would not be 
in the militia, how, when and where militia members would train, who would
officer the militia, what the punishment for transgressions would be, 
how the militia could be called up, etc.  Although it was common for people 
to refer to the state militias as consisting of all the people, since they 
did consist of one whole heck of a _lot_ of the people, anyway, 
in actual fact, exemptions were very common, and it was easy for wealthy 
or privileged people to avoid militia service.  These state organizations 
were hierarchical in nature.  In some states officers were elected; 
in others, they were appointed by the state.   The entire state was usually
organized into geographical divisions which corresponded with a military 
division.  Divisions were geographically subdivided into brigades, 
regiments, and companies, just like regular military units.  In Southern 
states, regiments often corresponded with counties, and militia captains 
had additional civil responsibilities, such as handling elections or 
appointing slave patrols.  

It is a mistake,to conceive of the militia merely as a mass of 
individual men with guns.  Though indeed they were citizen-soldiers, they were 
as organized as 18th century society could organize Americans, and when they 
were called out, it was usually through a top-down, organized fashion.[MP]


3.12  Were the states concerned during the Revolutionary war with
      the subordination of the military,including the militia, to 
      civil authority?
A.  Very much so, and not surprising, considering that the refusal of
British troops to subordinate to colonial leadership was one of the 
major reasons for the American Revolution.

"Every state ratifying a new constitution during the Revolutionary
War save New Hampshire, Georgia, and New Jersey, noted the necessity
for the subordination of military to civil authority, proclaimed the
right and obligation of free men to bear arms, and denounced standing
armies as a threat to the civil liberties of a free society...
[C]onstitutional conventions sought to ensure that the states' 
military capacities could not become the springboard by which 
ambitious political authorities could subvert the constitutional
order for their own political ends.  Establishing the primacy
of the state assemblies in military affairs provided the 
principal means of acheiving that goal.

"In no state was the governor denied the office of commander in 
chief of both militia and regular state troops.  Nevertheless, the
real power to mobilize the states' military institutions belonged
to the representative assemblies...Most states required the consent
of an executive council before the militia could be embodied...

"All regular and militia officers in the states served under 
commissions granted by their respective governors...

"Still, there was little chance that militia officers might become
extensions of an ambitious executive authority, for in no state 
did the governor enjoy a free hand in appointing militia officers.
The governor of New York held the power to make militia appointments
with the advice of his executive council.  Virginia's  governor held
the same power, except that all appointments were to be made on the
advice of local county courts.  In the other states, governors had 
no role in the appointment of militia officers.  Constitutional 
conventions in Delaware, North Carolina, and South Carolina required
the joint concurrence of the popular branches of government for the
appointment of field and general grade officers.  The same conventions
vested the legislative assemblies with the power to determine how
to select company-grade officers.  In New Jersey and New Hampshire
company-grade officers were to be elected by the rank and file, and
field and general officers were to be appointed by both houses of 
the general assembly.  Pennsylvania allowed its militiamen to 
elect officers through the grade of colonel, and in Massachusetts
popular election extended to the level of brigadier general.  In 
both states, however the highest level of the militia command structure
served at the behest of the popular assemblies"
  - Cress pp. 60-62: 


3.13  What did the Articles of Confederation say about the militia?
A.  The militia was still very much the state militia with little central
control. The States were given the responsiblity for actually supplying
the militia with arms and equipment.  

The Articles stated:
"No vessels of war shall be kept up in time of peace by any State, except 
such number only, as shall be deemed necessary by the United States in 
Congress assembled, for the defence of such State, or its trade; nor 
shall any body of forces be kept up by any State, in time of peace, 
except such number ony, as in the judgment of the United States, in 
Congress assembled, shall be deemed requisite to garrison the forts 
necessary for the defence of such State; but every State shall always 
keep up a well regulated and disciplined militia, sufficiently armed and 
accoutred, and shall provide and constantly have ready for use, in public 
stores, a due number of field pieces and tents, and a proper quanittity 
of arms, ammunition and camp equipage."

There are other paragraphs pertaining to the militia in Article VI,
Article VII, and Article IX.  Article VII provides that all militia 
officers under the rank of colonel be appointed by state legislatures.
Article IX provides that Congress should appoint officers at the 
regimental level (colonels, usually) and above, and also gives a 
procedure by which the federal government could call upon the 
militia in case of national emergency. It was up to state governments 
under the Articles to determine which men would serve in the militia. 

The Articles also clearly distinguish between troops which can be only
be kept in time of peace by states with the consent of Congress and
militia which it is the obligation of the state to supply and keep up.


3.14  What was Shays' Rebellion and how did it bring about more central
      control over the militia? 
A. "In 1786, a body of men under Daniel Shays, who had been an efficient
captain of a company [of militia] during the Revolution, rebelled against
the foreclosure of land in Massachusetts.  As many as as 1100 of them
threatened the Supreme Court, whle 800 militiamen, called to defend the
Court but sympathetic to the rebels, looked on.  The mortgage holders
resided in eastern Massachusetts, the rebels in the west.  Because there
was ill-feeling between the two sections of the state, the creditors were
able, using influence and money, to gather enough militia men from eastern
Massachusetts to march against the insurrection.  ... The use of citizen
soldiers to suppress rioters became the pattern for dealing with
insurrections in the last decade of the 18th century.  The difficulty in
suppressing Shays' rebellion was only one episode convincing former leaders
of the Revolution that the Articles of Confederation were too weak to
preserve the structure they had fought to bring into being. "  Mahon, p.47


3.15  Was Shays' Rebellion an example of a private militia?
To the extent that the Shaysites had military structure,
they used the existing militia structure; simply not for legal purposes.

 "...[N]ews arrived from Massachusetts in September 1786 that armed
 insurgents had closed the courts of Common Pleas in Hampshire, Worcester,
 and Middlesex counties.  Instead of rallying to defend the civil order,
 the local militia sided with Shays' Rebellion.  Only a day after Governor
 James Bowdoin had called on upon the citizenry to quell the rebellion,
 word arrived from Worcester that 'there did appear universally that
 reluctance in the People to turn out for the support of Government as
 amounted in many instances to a falt denial: in others to an evasion or
 delay which amounted to the same thing.' From September through January
 reports of the militia's unreliability flowed into the governor's office. 
 Even the militia's successful defense of the Continental arsenal at
 Springfield was marred when supposedly loyal militiamen joined the ranks
 of the insurgents during the skirmish.  Resistance to constitutional
 authority was by no means limited to the militia's rank and file.  Militia
 officers discouraged their companies from taking the field, prevented the
 distribution of powder and supplies, and actively recruited their
 subordinates for service with the insurgents."  Cress,pp.95-96


3.16  If the militia, as all the people armed, was considered good by the
      anti-Federalists, what was the evil?
A. For many, the good was a militia made up of all the people, the evil
found in both standing armies and a 'select' or 'classified' militia 
system.

A select militia was basically dividing the militia into several groups
with varying levels of burdens, with the prime burden of military service
placed on those from 18-26 or so.  Congress never established such a
system, despite the wishes of people that ranged from George Washington to
Henry Knox to Rufus Putnam to Timothy Pickering to Thomas Jefferson to
James Madison, etc.,, etc. etc. [MP]

For example, Richard Henry Lee's Letters from a Federal Farmer saw little
difference between a standing federal army and a select militia:

   "Should one fifth or one eighth part of the men capable of bearing
   arms, be made a select militia, as has been proposed, and those
   be the young and ardent part of the community, possessed of but
   little or no property, and all the others put upon a plan that will
   render them of no importance, the former will answer all the purposes
   of an army while the latter will be defenseless."

Or, John Smilie of Pennsylvania: 
   "Congress may give us a select militia which will, in fact,
   be a standing army". 

What Lee and Smilie feared was that Congress was 
given so much power--particularly "to organize"--that if could form, if it 
wished, a select militia.  The notion of a select militia, though it had 
earlier antecedents, was basically the result of the end of the Revolutionary 
War.  Alexander Hamilton in 1783, as a member of Congress, asked George 
Washington for his opinions on what sort of military forces the U.S. should 
have in time of peace.  George Washington consulted with a number of military 
subordinates, most of whom recommended that, in addition to several things 
having to do with the Army, that the militias should be classified according 
to age, with the younger men doing most of the work, and should be more under 
the authority of the national government.  Washington condensed their opinions 
and sent them off to Alexander Hamilton, who basically ignored them and 
offered a different plan of classification, but based on marriage, not age.  
Two of Washington's advisors, Henry Knox and Baron Steuben, then printed their 
plans separately in the mid 1780s.  Knox's plan, in particular, was discussed 
by Congress in 1786 and "recommended" to the states.  Knox, an ardent 
federalist, wanted the federal government to have great authority over the 
state militias.  There was an awful lot of opposition to his plan.

It is primarily Knox's plan, and others like it, that the anti-federalists 
feared when they referred to a "select militia."  It was not a militia that 
actually existed, but one that they felt could come into existence if Congress 
was given too much power over the militia. [MP]


3.17  Was there opposition to the strong federal power given  by the
      Constitution over the state militias?
A. Sure.

November 1787: "An Officer of the Late Army" complains that "The MILITIA
is to be under the immediate command of Congress." 

December 1787, Pennsylvania Convention:  Robert Whitehill calls for the
power to organize, arm and discipline the militia to remain with the
states, not Congress. 

The Dissent of the Pennsylvania minority claimed that "The absolute
unqualified Command that Congress have over the militia may be made
instrumental to the destruction of all liberty, both public and private." 

Patrick Henry, June 1788, "They have power to call them out, and to
provide for arming, organizing, and disciplining them.--Consequently they
are to make militia laws for this state." 

These people, in fact, thought that Congress had so much control over the
militia that the Constitution should not be adopted.  However, most people
didn't think that this much control posed a threat, because the militia
would not stand for any attempt to use it against the people. 


3.18  How did the The Federalists reply?  
A.  From THE FEDERALIST - Alexander Hamilton, James Madison, John Jay,XXIX

"...To oblige the great body of the yeomanry and of the other classes of
citizens to be under arms for the purpose of going through military
exercises and evolutions, as often as might be necessary to acquire the
degree of perfection which would entitle them to the character of a
well-regulated militia, would be a real grievance to the to the people and
a serious public incovenience and loss.  It would form an annual deduction
from the productive labor of this country to an amount which, calculating
upon the present numbers of the people, would not fall far short of a
million pounds.  To attempt a thing which would abridge the mass of labor
and industry to so considerable extent would be unwise: and the
experiment, if made, could not succeed, because it would not long be
endured.  Little more can reasonably be aimed at with respect to the
people at large than to have them properly armed and equipped; and in
order to see that this be not neglected, it will be necessary to assemble
them once or twice in the course of a year.  But through the scheme of
disciplining the whole nation must be abandoned as mischievous or
impracticable;  yet it is a matter of the utmost importance that a
well-digested plan should, as soon as possible, be adopted for the proper
establishment of the militia.  The attention of the government ought
particularly to be directed to the formation of a select corps of moderate
size, upon such principles as will really fit it for service in case of
need. By thus circumscribing the plan, it will be possible to have an
excellent body of well-trained militia ready to take the field whenever
the defense of the state shall require it.  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 own rights and those of their
fellow citizens.  This appears to me the only substitute that can be
devised for a standing army, and the best possible security against it, if
it should exist. 

Thus differently from the adversaries of the proposed Constitution should
I reason on the same subject, deducing arguments of safety from the very
sources which they represent as fraught with danger and perdition.  But
how the national legislature may reason on the point is a thing which
neither they nor I can forsee. 

There is something so far-fetched and so extravagant in the idea of danger
to liberty from the militia that one is at a loss whether to treat it with
gravity or with raillery; whether to consider it as a mere trial of skill,
like the paradoxes of rhetoricians; as a disingenuous artifice to instil
prejudices at any price; or as the serious offspring of political
fanaticism.  Where in the name of common sense are our fears to end if we
may not trust our sons, our brothers, our neighbors, our fellow citizens? 
What shadow of danger can there be from men who are daily mingling with
the rest of their countrymen and who participate with them in the same
feelings, sentiments, habits, and interests? What reasonable cause of
apprehension can be inferred from a power in the Union to prescribe
regulations for the militia and to command its services when necessary,
while the particular States are to have the sole and exclusive
apportionment of the officers?  If it were possible seriously to indulge a
jealousy of the militia upon any conceivable establishment under the
federal government, the circumstance of the officers being in the
appointment of the States ought at once to extinguish it.  There can be no
doubt that this circumstance will always secure to them a prepondering
influence over the militia... 
  

3.19  But isn't it clear from the debates surrounding the Constitution and
      the Second Amendment, that everyone intended for the militias to be
      the means by which the states could resist a tyrannical federal 
      government. How does handing almost absolute control of the militias
      to the federal government fit with this clear intent? 
A.  It can safely be generalized that most people thought that militias
would not stand to be controlled by the federal government if that body
were to begin acting oppressively.  Therefore, giving some control over
them to the federal government (which would help the nation repel foreign
attacks, etc.) would probably not lead to despotism.[MP]


3.20  What does the Constitution say?
A.  First, the constitution continued the prohibition of states keeping
troops in peacetime without the consent of Congress.  Again, troops were
considered different from the militia. 
Article 1, Section 10:  
  "No state, shall without the consent of Congress, lay any
  duty of Tonnage, keep Troops, or Ships of War in time of Peace,
  enter into any agreement or compact with another state, or wiht
  a foreign power, or engage in war, unless actually invaded, or 
  in such imminent danger as will not admit of delay".    

The Militia Clauses gives Congress the power: 
  "...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;"

Power of the President over the Militia
 "The 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;"

Like most things, the militia clauses were a compromise between those who
wanted a centralized national militia and those who wanted the militia to
be very decentralized. 

What was not specified in the Constitution, but was clearly understood by
all was that the term 'militia' meant the militia of the states. 


3.21  What about the Second Amendment?
A. The 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 meaning of the Second Amendment, especially in these newsgroups, is
a matter for heated debate.  This FAQ is not a FAQ on gun control or the
Second Amendment, but it will make a few comments.

Most historians agree that at least part of the meaning of the Second 
Amendment was that it specifically guarantees the the right 
of states to ensure the arming of their militias in the face of fears
that the federal government might effectively deny to arms to a
state controlled militia.  However, those fears never came true.
 
The Second Amendment has been largely irrelevant to the history of the
militia since 1792. 

The Second Amendment has been used, unsuccessfully, to challenge the
constitutionality of state laws against laws prohibiting unauthorized
paramilitary organizations.  This failure is not surprising.  Even if 
the Second Amendment is intended to protect the right to keep and bear
arms as private citizens, it is a much further step to say it was intended
to protect the right to armed paramilitary activities by self-selected groups
outside of civilian political control. 

For example, the 1776 Virginia Bill of Rights, considered by many as one
of the sources of the Second Amendment states: 
  "That a well regulated militia, composed of the body of the people,
  trained to arms, is the proper, natural and safe defense of a free
  State; that standing armies should be avoided, as dangerous to
  liberty; and that in all cases, the military should be under strict
  subordination to, and governed by, the civil power."


3.22 The Second Amendment refers to a "well-regulated" militia, but I have
     been told that this the term "regulated" in this time frame simply 
     meant "smoothly functioning" rather than in the sense of "rules and 
     regulations," and that there were no regulations for the militia during 
     this time period.
A. I've had some qualms about including this information because of the
danger of the distracting the reader from the main issues about the history
and law of the militia.  On the other hand, it is interesting material and
I've never seen it so well-organized (like the hyphen?) before.

Three points.  One, even if every word that follows in this section 
on 'well-regulated' is wrong, it would have no impact on the rest of this 
FAQ.  Don't let this section sidetrack you from the rest of the FAQ.

Two, Mark Pitcavage, who wrote this section has a rule that he will
not discuss the meaning of the Second Amendment in newsgroups, though he
will discuss it through e-mail. 

Finally, although I've often seen Black's Law Dictionary abused on the
internet, I checked it, and here are the definitions of 'regulate' from
the Fourth edition [I've left out the citations].

  "Regulate.  To fix, establish, or control; to adjust by rule,
  method, or established mode; to direct by rule or restriction;
  to subject to government principles or laws.
  The power of Congress to regulate commerce is the power to 
  enact all appropriate legislation for its protection or advancement;
  to adopt measures to promote its growth and insure its safety; to
  foster, protect, control and restrain.
  It is also the power to prescribe rules by which commerce is to
  be governed and embraces prohibitory regulations"

Over to you, Mark. 
 
This FAQ itself provides some examples of 'regulations' in the form of
the 1792 Uniform Militia Act and the 1837 North Carolina law on volunteer
cavalry.

There is a continuity from the time of the founders (and before) through the 
nineteenth century through today, in which the term "regulated" referred to 
regulations. 

"Well regulated" in the Second Amendment refers to the combination of state 
and federal regulations, as authority over the militia under the Constitution 
was divided between the two by the Militia Clauses.  Most of the founders 
emphasized federal regulations, since that was what was at issue during the 
ratification debates.

Sometimes the  Founding Fathers used the term "regulate" to refer to state 
militia laws.  For instance, Patrick Henry and James Madison, members of the 
Virginia House of Delegates in 1784, were appointed to a committee to 
prepare a bill "to amend the several acts of Assembly, for regulating and
disciplining the militia, and for providing against invasions and 
insurrections."

It is also interesting to read the words of John Sullivan, the former 
Revolutionary War general, Federalist, and governor of New Hampshire, in 1785, 
when he says that "And the Prussian army so formidable in Europe, is nothing 
more than a well regulated militia; the voice of the Prince calls them to the 
field; three months are taken up in disciplining them, and in passing the 
reviews; they are then furlowed..."  Sullivan evidently thought that "well 
regulated" could mean three months of government training a year!

In 1783, Alexander Hamilton made a report on national defense to the 
Continental Congress, in which he suggested that states transfer the right of 
appointing officers to the Continental units to Congress, arguing that 
"without it there can never be regularity in the Military system."  Though 
dealing with a situation that was never adopted, it nevertheless illustrates 
further that the term "well-regulated" could hinge on federal control.   This 
becomes more important later in the same report when he discusses the militia, 
which he felt should be "well regulated;" to that end, Hamilton provided a 
plan for the militia, its organization, training, officering, equipment, 
duties, etc.

We also find the Federal Farmer, in November 1787, noting that "The state must 
train the militia in such form and according to such systems and rules as 
Congress shall prescribe; and the only actual influence the respective states 
will have respecting the militia will be in appointing the officers...I know 
that powers to raise taxes, to regulate the military strength of the community 
on some uniform plan, to provide for its defence and internal order, and for 
duly executing the laws, must be lodged somewhere; but still we ought not to 
lodge them, as evidently to give one another of them in the community, unde 
advantages over others."  Clearly the Federal Farmer believed that the power 
to "regulate the military strength of the community" was lodged with Congress.
We could turn as well to Benjamin Lincoln, Revolutionary War general, 
Massachusetts politician, and militia officer, who reviewed Henry Knox's 1790 
plan to organize the militia, and referred to it as Knox's "proposed system 
for regulating the militia of the United States."  In fact, the term 
"regulating" was used synonymously for "organizing" by a number of people at 
the time.

Coming back to Alexander Hamilton, we see him in the Federalist 29 in January 
1788, arguing that "if a well regulated militia be the most natural defence of 
a free country, it ought certainly to be under the regulation and at the 
disposal of that body which is constituted the guardian of the national 
security."  (he is referring here to Congress)  It is hard to imagine how one 
could find a plainer statement saying that the term "well regulated" applies 
to laws passed by the national government.  It is clear, too, that the term 
cannot apply solely to training, because the power to train, as Hamilton knew, 
was given to the state governments.  Later in the document, we see Hamilton 
asking the question, "What reasonable cause of apprehension can be inferred 
from a power in the Union to prescribe regulations for the militia and to 
command its services when necessary; while the particular states are to have 
the sole and exclusive appointment of the officers?"

If a Federalist like Alexander Hamilton believed that the term regulated meant 
Congress' power over the militia, what about the antifederalists?  We see 
Luther Martin, in January 1788, arguing that "it was speciously assigned as a 
reason [by nationalists], that the general government would cause the militia 
to be better regulated and better disciplined than the State governments."  
Indeed, Martin gets even more specific, when he argues that instead the 
government should leave power to the states:  "That leaving the power to the 
several States, they would respectively best know the situation and 
circumstances of their citizens, and the regulations that would be necessary 
and sufficient to effect a well regulated militia in each--That we were 
satisfied the militia had heretofore been as well disciplined, as if they had 
been under the regulations of Congress..."  How could you ask for anything 
more specific about the meaning of well-regulated?  What creates a well 
regulated militia?  Regulations!

James Wilson, in the Pennsylvania state ratifying convention, applauded the 
notion of uniform militia laws that would be passed by Congress:  "In every 
point of view, this regulation is calculated to produce the best effects.  How 
powerful and respectable must the body of militia appear, under general and 
uniform regulations!"

David Ramsay, the South Carolinian, gave an oration at Charleston in which he 
said that "Tradition informs us, that about forty years ago France meditated 
an invasion of New England, but on reading the militia law of Massachusetts, 
declined the attempt.  If this was the case under the wholesome regulations of 
one state, what room is there to fear invasion when an union of force and 
uniformity of system extends from New Hampshire to Georgia?"  Again:  Congress 
can best provide for a well regulated militia.

We could turn as well to Benjamin Lincoln, Revolutionary War general, 
Massachusetts politician, and militia officer, who reviewed Henry Knox's 1790 
plan to organize the militia, and referred to it as Knox's "proposed system 
for regulating the militia of the United States."  In fact, the term 
"regulating" was used synonymously for "organizing" by a number of people at 
the time.

Below are a few examples of the meaning of 'regulated' culled from 
the early years of Congress.  There were many more such references; these are 
simply ones that I have made notes on:

1st Congress, 3rd Session .  Mr. Vining observes that the greatest objection
[to a motion for arming the militia] is that it stops short in the regulation
of the buiness.

December 22, 1790.  Mr. Bloodworth [argues that present 
militia bill] goes to the minutiae of the regulations of the militia.

January 9, 1795.  Mr. Tracy said, he was convinced of the necessity of 
amending the militia law; before Congress made any regulations of the kind, 
the militia, in the State he was from, was under very good discipline...

December 19, 1796.  (paraphrase) Mr. Henderson objects that the states haven't 
yet had time to regulate their systems so as to comply with the 1792 law.

April 29, 1798.  Mr. Dayton moved that the committee...be discharged from 
further consideration of this bill [revising the militia system]...however 
salutary the proposed regulations might be in a state of tranquility, he did 
not think it would be proper, in the present circumstances of the country, to 
derange the whole Militia system to so great a degree...

March 6, 1810.  Samuel Smith delivers a committee report, noting that no 
authority is delegated to Congress to regulate fines for non-attendance (at 
militia musters).

January 9, 1818.  William Henry Harrison delivers a bill for organizing, 
arming, and disciplining the militia.  In describing the bill, says 
"Regulations for calling forth the militia may remain substantially" as at 
present.  Later in the same report, he says that under the proposed bill, 
when training, the militia "shall be subject to the rules and regulations 
prescribed for the government of the militia when in the military service of 
the United States."

As well, many militia codes passed by the states had titles like 
"A law to regulate the militia."  The militia laws of Ohio from the 1840s
are examples of such phraseology.  These laws "to regulate" the militia
were complete militia laws, dictating everything from officers to court 
martials to training to formation of units to fines to musters, etc., etc.,
etc. 

Some people want the term "well-regulated" to have nothing to do with
regulations or Congress, because of their interest in maintaining a right to
keep and bear arms.  Since some gun control advocates say that the preamble
to the Second Amendment (mentioning the "well-regulated" militia) means that
only members of the "well-regulated militia"--which today would be the
National Guard--have an absolute right to bear arms, it is in the interest
of those who oppose gun control to render this phrase meaningless.

Whether or not the Second Amendment guarantees an individual right to bear
arms is not particularly relevant to this FAQ, but the issue of whether or
not the national government has some authority over the militia is
important.  It is therefore worth pointing out, as I have with the examples
above, that the argument that the term "well-regulated" had nothing to do
with regulations, is very probably false.  [MP]


3.23  Does the Constitution only give the federal government the power
      to organize,arm,and discipline the militia when it has been
      federalized?
A. No.  The federal government always has the power to "organize, arm and
discipline" the state militias.  It has this power regardless of whether
or not the state militias are called up by the federal government. 
Furthermore, it routinely _used_ this power at times when no state
militias were called up by the federal government.  When the state
militias _are_ called up, the federal government has _additional_ powers
over them, but this has nothing to do with the other powers. [MP]


3.24  What was meant by the federal power to 'provide for organizing' the
      militia? 
A. Almost all courts and legislators have understood the term meant the
power to define who was and who was not in it, what sort of units it
should have and how they should be structured, how it would be officered,
and what the duties of officers were.  A number of people thought that the
power to 'organize' extended far beyond this, but there was dispute about
this point. [MP]

From Merriam Webster's Tenth Collegiate Dictionary: 
Provide. vb. 1. To take precautionary measures. (Provide for the Common 
Defense.)2. TO MAKE A PROVISO OR STIPULATION (THE CONGRESS PROVIDES FOR AN 
ELECTED TWO-CHAMBER LEGISLATURE) 3. To make preparation to meet a need; to 
supply sustenance  vt (vert transitive) (archaic) 1. To prepare or get ready 
in advance 2. To supply or make available 3. To make something available to 
4. TO HAVE AS A CONDITION; STIPULATE.


3.25  Did the concept of the militia in 1792 ever include units that were
      not responsible to and militarily subordinate to civilian authority?
A. No.  


3.26  What are the two major pieces of federal legislation concerning the
      militia after the passage of the Constitution? 
A. The 1792 Uniform Militia Act created a militia system that was very
decentralized with every able bodied free male citizen required to do
militia duty.  

The 1903 Dick Act recognized that compulsory militia service
no longer existed.  The organized militia, now called the National Guard,
came under much greater federal control and received much higher federal
funding. 


3.27  The Founding Fathers looked for inspiration to the common law of
      England before the passing of the first militia statute. The 
      Anglo-Saxon  militia, called the Fyrd, consisted of all able-bodied
      men; and it was the Fyrd that the founding fathers had in mind 
      when they spoke of a militia.
A.  There doesn't seem to be much evidence of this.  Congressmen in 1792
didn't have to look any farther than the laws of their respective states
to find inspiration for drafting militia laws. 


3.28  What did the 1792 Uniform Militia Act do?
The 1792 Uniform Militia Act, which was the act that Congress passed to
organize, arm, and discipline the militia, specified that militiamen
purchase and maintain their own weapons. It specified which classes of
individuals were included and excluded from the militia, and specified the
organization of the militia. 

   "[The 1792 Law] gave the militia whatever slight central direction
    it ws to have for 111 years.  It stated that all free, able-bodied 
    white men owed military service to both state and nation.  It furthers
    directed the eligible males to furnish themselves with proper firearms
    and accoutrements.  Certain categories of men were exempt from service
    and the law authorized the states to expand further their own 
    exemptions."  Mahon, p. 52. 



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