Archive for the ‘Militia’ Category

Exploring Bermuda’s Forts

OspreyBermuda is also called the “Gibraltar of the West”. It could have once been called a Mid-Atlantic Mackinac Island, but that is one of the many changes not for the best.

it’s also another post.

Anyway, if this is your idea of a fun thing to do (it is mine). I suggest buying a copy of Osprey’s Defenses of Bermuda 1612–1995 in the Fortress series (#112), ISBN: 978-1472825964.

OK, the Bermuda Tourist authority and Historic commissions don’t have their shit together when it comes down to good guides for this. On the other hand, this is an excellent guide which will prevent you from trying to find Forts Albert and Victoria: even though they are on the tourist map. It doesn’t tell you that Fort St. Catherine (the one on the front cover) has been wrecked by development.IMG_7472

You can get what looks like a pristine beach without the future St. Regis residential hotel by using a telephoto. On the other hand, the development of St. Catherine’s Beach caused a shit storm for quite a few reasons (first off, it was a public beach).

Well, they can’t ruin the view looking out to sea. Or maybe they can…

Likewise, Forts Albert and Victoria were trashed by development, but good luck finding that information anywhere besides the Osprey book. I was able to put together the pieces to learn that Fort Scaur was the one I wanted to explore when I was a kid.

IMG_7504

This picture was taken through the fence using the zoom

One major problem with exploring the forts is that Bermuda isn’t really good at preserving its history, as my previous points have shown. The Dockyard is now a tourist trap. They development folk also neglect it was home to Casemate’s prison, which is a whole separate topic.

And probably one most Bermudians don’t want to discuss.

Fort George has a really great view, but it is the Bermuda maritime Operations Centre. You can go there, but not much history or much to see besides the view.

Also, not all these forts are accessible when they still exist. The ones on the islands in St. Davids are on private proerty, which hasn’t really stopped anybody from visiting them.  It also takes some coordination trying to visit the Forts (e.g., you need to make an appointment to see the Martello Towers, which aren’t really restored).

Forts Victoria and Albert became inaccessible to general public after the demolition of Club Med Hotel in 2008, which was located in the same area.  Fort Victoria, which was once one of the finest forts is Bermuda, had been badly damaged from the demolition. Not that having a hotel built around it didn’t do enough damage. A new hotel complex is planned to be built on their site, although the UNESCO world heritage designation of St. George may result in the Forts being somewhat restored.

I’m not holding my breath given the development of St. Catherine’s Beach.

At this point, the Osprey book is the best guidebook around. For that matter: it’s probably the only guidebook around on the topic. Britain’s Island Fortresses: Defence of the Empire 1796-1956 sounds interesting, but it deals with the Fortresses worldwide. The Bermuda Maritime Museum also publishes Bermuda Forts 1612-1957 (ISBN: 978-0921560111), which is the authority on this subject, but a little large for carrying around with you.

On the other hand, this book is very comprehensive and thorough. Like visiting Bermuda, Osprey books were a staple of my youth. Unlike Bermuda, Osprey has only gotten better. This is pretty much the type of information you’ll get on the Island.

Bermuda now has cars. Way too many of the things for a small island.

Buy your copy before you leave since it will cost you (at least) twice the price if you get it in Bermuda. There are a couple of book stores in Hamilton that might have this title (Browns).

Well, you are on an Island in the Atlantic…

See Also:

More on the Unorganised Militia

Usually, you get someone pointing to 10 USC §311(b)(2) and saying they are part of the Unorganised Militia.  Unfortunately, this section of the Code doesn’t give a gloss on what exactly this means, but I have gone into it before in other posts: Asked and Answered–Unorganised, Sedentary, reserve, etcetera militias explained and Still more on the Unorganised Militia.  Basic info being:

The Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia, has always been unorganized and untrained

Active Militias, that is THE organised, enrolled, embodied, active (or other term signifying active) Militia, can be supplemented if necessary by the ballot (selection by lot)–in other words drafted from the Unorganised militia draft pool.

The term “unorganized” did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.

Militia service was so unpopular that Delaware abolished its militia system altogether in 1831. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856.” – Mahon, John K, The History of the Militia and the National Guard, p. 83

The term “unorganized militia” was kept in use in subsequent decades as a statutory “reminder” that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the “unorganized militia,” the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise.

Of course, legal method would tell you that there might be another part of the US Code that addresses this issue.  In fact, Title 10 is the Section of the US Code that covers the Armed Forces and there are sections that further elaborate on this topic.  10 USC Chapter 1003 – Reserve Components Generally–specifically addresses who the national guard happens to be:

10 USC 10101

The reserve components of the armed forces are: (1) The Army National Guard of the United States. (2) The Army Reserve. (3) The Naval Reserve. (4) The Marine Corps Reserve. (5) The Air National Guard of the United States. (6) The Air Force Reserve. (7) The Coast Guard Reserve.

10 USC 10105 – Sec. 10105. Army National Guard of the United States: composition

The Army National Guard of the United States is the reserve component of the Army that consists of – (1) federally recognized units and organizations of the Army National Guard; and (2) members of the Army National Guard who are also Reserves of the Army.

Also 10 USC § 312. Militia duty: exemptions, addresses who exempt from service in the militia. 32 USC § 313 deals with who can enlist to serve in the militia.

As I have said before, you need to actually be a member of the National Guard to actually claim that you are a member of the militia.  And that Constitutionally, the only body that can call itself a militia is one which is organised under Article I, Section 8, Clause 16–not the Second Amendment.

I should also add that the unorganised militia is usually addressed in state laws, where it is made clear that this is a reserve force with no duties or obligations.

See also

Pride and Prejudice…and THE MILITIA!

Yeah, we’re talking the Jane Austin Pride and Prejudice where the Bennet girls become friendly with militia officers stationed in the nearby town. The militia is leaving town, which makes the younger, rather man-crazy Bennet girls distraught. Lydia manages to obtain permission from her father to spend the summer with an old colonel in Brighton, where one of the officer’s regiment will be stationed.

The subplot of the militia in Pride and Prejudice is a constant throughout the novel. Though members of the militia were only required to train for twenty eight days of the year, they were often thought to be superior patriots and were generally held in high regard. The militia served as Britain’s standing army of reserve troops; during the the late Georgian and the Regency eras. Their purpose was to defend Britain in case of a French invasion. When Pride and Prejudice was written, Britain was on the verge of war with France and eventually became involved in the Napoleonic Wars, therefore Austen’s inclusion of officers in Pride and Prejudice merely accurately reflected the perception of the militia at the time.

Since training lasted only twenty eight days of the year, Lydia’s expectation that Colonel Forster would host a ball in Meryton was not unrealistic at all, and given the lack of conflict on British soil combined with widespread respect for the patriotic militia officers, their presence at such social events was probably commonplace. Indeed, in Pride and Prejudice the absence of the militia greatly affected Elizabeth in that “parties abroad were less varied than before; and at home she had a mother and sister whose constant repinings at the dulness of everything around them, threw a real gloom over their domestic circle”. Essentially, the absence of soldiers did not affect the safety of the surrounding area of their former camp, but the social life.

Wickham’s position as an officer in the militia and a gentlemen allows him to escape from paying his debts for quite awhile, but when Mr. Gardiner and Mr. Bennet must finally research his debts, it is found that he has many “debts of honor”to other officers, and that he was a “gamester”. Such debts demonstrate the laxity of the volunteer military atmosphere and the culture of the military regiments, the greater implication being that many militia men are involved in gambling, and that Wickham is one of the few who dishonorably ignore his debts.

Of course, the role of the militia is much more interesting in the later versions of Pride and PrejudicePride and Prejudice and Zombies and Pride and Prejudice and Zombies: Dawn of the Dreadfuls where the militia proves useful in combatting the dreadfuls (otherwise known as zombies). That and the Bennet girls’ ladylike martial arts abilities.

See also:

  • Fulford, Tim, Sighing for a Soldier: Jane Austen and Military Pride and Prejudice, Nineteenth-Century Literature, Vol. 57, No. 2. (2002), pp. 153-178.

Why I hate the individual right interpretation of the Second Amendment and so should you.

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.–James Madison

It cannot be presumed that any clause in the constitution is intended to be without effect;–Marbury v. Madison, 5 U.S. 137 (1803).

I was thinking about calling this post The Truly Embarrassing Militia Clauses of the US Constitution as a take of on Sandford Levinson’s “The Embarrassing Second Amendment”. In it, Levinson points out that “the second amendment is not taken seriously by most scholars.” Levinson then says:

I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even “winning,” interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay –The Embarrassing Second Amendment — for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.

Problem is that Lawyers know the rules of the game better than most plain folks, and in Constitutional law, it appears some know it far better than 5 of the Judges on the Supreme court. Never mind that when Levinson wrote his piece (1989-1990) the Civic Right interpretation was pretty much the norm. The Second Amendment was neglected since it was pretty much seen as settled law prior to the rise of the revisionist pseudo-scholars. Levinson article was part of the flood of scholarship that has led to revisionism of the Second Amendment pseudo-scholars which has unsettled nearly 70 years of settled precedent. The pseudoscholars have been like good magicians and directing people’s attention to the wrong thing while they deceive them into making the illusion look real.

But, my reason for disliking the individual right interpretation goes to the two quotes that start here. True “Second Amendment” scholarship goes beyond just the text of the Second Amendment which everyone involved in this game knows comes in two versions:

As passed by the Congress:

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

.As ratified by the 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.

The Pseudoscholarship only looks at the second half of the Second Amendment (“the right of the People to keep and bear arms shall not be infringed”) and tries to neglect the Prefatory clause (A well regulated militia being necessary to the security of a free State). Unfortunately, this has coloured the debate in recent years despite the admonition from Marbury v. Madison that “It cannot be presumed that any clause in the constitution is intended to be without effect”. The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. It is wrong that the prefatory text should be treated as mere surplusage according to the original rule for interpreting the Constitution.

The current debate isn’t True Second Amendment/Constitutional law scholarship since that MUST include also the militia clauses from Article I, Section 8 of the US Constitution along with the text of the Second Amendment:

Clause 15. The Congress shall have Power *** To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Clause 16. The Congress shall have Power *** 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.

These two clauses change the debate and bring it closer to historic reality of how the Second Amendment should be interpreted. When the commentators were saying things such as “The great object is, that every man be armed”, Henry was specifically addressing Article I, Section 8, Clause 16 as the text shows:

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States.” To the state legislatures is given the power of “appointing the officers, and training the militia according to the discipline prescribed by Congress.” I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

The problem is that if one looks at the Second Amendment in light of Congress’s powers under the Militia clauses, in particular–the power to arm the militia, the individual right proposition begins to wither away. Even more so when seen in the proper historical perspective. Then, needs to add Article 1, Section 8, Clause 12 (To raise and support Armies) to the mix to get the proper meaning of the Second Amendment.

Somehow, the dislike of Standing Armies in the Anglo-American mind has also been neglected in this mix. In the 17th and 18th Century Great Britain and the British Colonies in America, there was a sentiment of distrust of a standing army not under civilian control. In England, this led to the Bill of Rights 1689, which reserves authority over a standing army to Parliament, not the King. The Declaration of Independence lists keeping standing armies during time of peace as one of the grievances. This dislike was far more nuanced in the United States Constitution which reserves by virtue of “power of the purse” similar authority to Congress, instead of to the President. The President, however, retains command of the armed forces when they are raised, as commander-in-chief. This dislike of standing armies heavily flavoured the debates relating to the adoption of both the Constitution and Bill of Rights, which leads to to this question from Elbridge Gerry:

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

The Constitution’s retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a standing army. For it was perceived by some that Article I contained a significant gap: While it empowered Congress to organize, arm, and discipline the militia, it did not prevent Congress from providing for the militia’s disarmament. As George Mason argued during the debates in Virginia on the ratification of the original Constitution:

“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” Elliot 379.

On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States. Governor Edmund Randolph, reporting on the Constitutional Convention to the Virginia Ratification Convention, explained: “With respect to a standing army, I believe there was not a member in the federal Convention, who did not feel indignation at such an institution.” 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 401 (2d ed. 1863) (hereinafter Elliot). On the other hand, the Framers recognized the dangers inherent in relying on inadequately trained militia members as the primary means of providing for the common defense, and the institutional deficiencies of the militia were the subject of bitter complaint.

Fortunately, the Congressional debates regarding the adoption of the Second Amendment are very short and found here. There was debate in Congress over the religious exemption, and it was removed. Otherwise, there was general discussion of standing armies and the militia, not about personal uses, and widespread support for the proposed Amendment. It became part of the Constitution with the rest of the Bill of Rights on December 15, 1791.

Considering the immediate political context of the Second Amendment, as well as its long historical background, there can be no doubt about its intended meaning. There had been a long standing fear of military power in the hands of the executive, and, rightly or wrongly, many people believed that the militia was an effective military force which minimized the need for such executive military power. The proposed Constitution authorized standing armies, and granted sweeping Congressional power over the militia. Some even feared disarmament of the militia. The Second Amendment was clearly and simply an effort to relieve that fear.

Thus, the Second Amendment needs to be read as more than just one clause, but within the context of text of the entire Constitution for it to be properly understood. The majority opinion neglected the guide to constitutional construction given by Marbury that “It cannot be presumed that any clause in the constitution is intended to be without effect” and rendered the “prefatory clause” to be mere surplusage, which is far from how a truly “original interpretation” based upon how such a text was understood to be read. This has led to absurdities such as the Chicago v. McDonald ruling which said that a provision relating to Congress’s powers under Article I, Section 8, Clause 16 applies to the states–even though the states do not have these powers granted to them.

It seems to me that there are good reasons for ignoring the Heller-McDonald decisions and reverting to the standard announced by US v. Miller that said the entire text of the Second Amendment must be used for its interpretation:

 

With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

 

Justice William O. Douglas (who was on the Court at the time of Miller) later described the decision as:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.” Adams v. Williams, 407 U.S 143, 150 -51 (1972)

Miller addressed Congress’s power over the militia, yet it has been dropped from the current discussion of the Second Amendment thus removing it from the the debate regarding the proper scope of the Amendment.

Ultimately, the right granted by the Second Amendment (and the Third) was supposed to be one that there would be no Standing Army, not for private citizens to own firearms. The Constitution, in particular, the Second Amendment is silent on the issue of non-militia arms. That fact, strips away the concept of “gun rights” as being protected under the US Constitution (although gun rights are found in State Constitutions). Instead, the Second Amendment is a window on a vastly different United States from the one we now live. One in which standing armies were feared.

The Constitution is not to be taken piecemeal, but to be seen as a whole to properly understand it. The individual right concept separate texts from historical background and says that clauses in the constitution are intended to be without effect rendering them mere surplusage. This turns the constitution upon its head by neglecting that there are two concepts that are in conflict here: the State Militias and the Federal Army.

Yet, rather than scream bloody murder this act has been allowed to be perpetrated upon the American public. Justice Berger called this interpretation a fraud upon the American public and the 5 justices played fast and loose with the rules of Constitutional interpretation to distort the constitution. Those who dislike penumbras in the law and government intrusion into the private lives of citizens, yet can tolerate Heller-McDonald need to understand what they have just condoned. For Heller-McDonald has not come from the penumbras, but out of nowhere in violation of the role of judges to be interpreters of the law, not legislators.

Delegates to the Constitutional Convention had no intention of establishing any personal right to keep and bear arms. Therefore the “individualist” view of the Second Amendment presented in the Heller-McDonald decisions must be rejected in favor of the “collectivist” interpretation, which is supported by history and the pre-Heller-McDonald Supreme Court decisions on the issue: in particular US v. Miller.

The nature of the Second Amendment also does not provide a right that could be interpreted as being incorporated into the Fourteenth Amendment. It was designed solely to protect the states against the powers given to the Federal government under Article I, Section 8, Clause 16, not to create a personal right which either state or federal authorities are bound to respect.

The contemporary meaning of the Second Amendment should be the same as it was at the time of its adoption. The federal government may regulate the body that was called the Militia (now the National Guard), but may not disarm it against the will of state legislatures. Nothing in the Second Amendment, however, precludes Congress or the states from requiring licensing and registration of firearms; in fact, there is nothing to stop an outright congressional ban on private ownership of all handguns and all rifles.

See:

THE POWER TO RAISE AND MAINTAIN ARMED FORCES

Founders’ Constitution:

Article 1, Section 8, Clause 12

Article 1, Section 8, Clause 15

Article 1, Section 8, Clause 16

Second Amendment

Amendment Three

House of Representatives, Amendments to the Constitution 17, 20 Aug. 1789 Annals 1:749–52, 766–67

Weatherup, Roy, Standing Armies And Armed Citizens: An Historical Analysis of The Second Amendment, 2 Hastings Const. L.Q. 961-1001 (1975)

Schwoerer, Lois G. “No Standing Armies!” The Antiarmy Ideology in Seventeenth-Century England

(OK, I am reposting this from MikeB’s Blog, but it’s my post and I can do that!)

I am a REAL Second Amendment supporter

Hey, fuck you clowns with your “unorganised militia” bullshit. That’s no more than saying that you have a fucking draft card, dickheads, and means you have fuck all rights.

Get your fucking arses down there and enroll in the Article I, Section 8, Clause 16 militia and get ready for some marching up and down the square!

It’s not about guns, it’s about military discipline!

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.–Joseph Story, Commentaries on the Constitution 3:§§ 1890

Rather be at the pictures I suppose?

See also:
United States v. Haney, 264 F.3d 1161 (10th Cir. 2001)
US v. Oakes, 564 F.2d 384 (1977)
United States v. Rybar, 103 F.3d 273 (3d Cir. 1996)
Militia-History and Law FAQ
Militia Mythology

The term “unorganised” did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia. The 1792 Uniform Militia Act explicitly allowed the states to determine who was exempt from militia service. So states divided their militias into two sections, the “organised” militia and the “unorganised” militia. In this way, the letter, though not the spirit, of the 1792 law could be complied with. Only the “organised” militia actually had responsibilities and obligations. The “unorganised” militia was a “reserve pool” that allowed the states’ militias to comprise the entire white male population from 18-45.

Why does the Second Amendment apply to State Militias?

Let’s start with the Articles of Confederation, which were the United States’ first constitutional document. It was drafted in 1776-77 and became the working constitution, although it was not formally ratified until 1781. The Articles authorised the Continental Congress in its supervision of the American Revolution, its diplomacy with Europe, and its handling of territorial issues. There were complaints that The Articles were too weak to adequately administer the United States’s governmental functions. Shays’ Rebellion pointed out many of the flaws in the system of govrnment instituted by the Articles. Some wanted the Articles amended, others advocated a new order. Eventually, the Articles of Confederation were replaced by the current Constitution in 1789.

Article VI of the Articles of Confederation:

nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity 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.

The lack of an institutional response to the Shays’ uprising was among the factors which led to the reevaluation of the Articles of Confederation and gave strong impetus to the Constitutional Convention which began in May 1787. The delegates of the Constitutional Convention granted Congress the power under Article 1; section 8, clauses 15 and 16 of the federal constitution to “provide for organizing, arming, and disciplining the Militia,” as well as, and in distinction to, the power to raise an army and a navy. The US Congress is granted the power to use the militia of the United States for three specific missions, as described in Article 1, section 8, clause 15: “To provide for the calling for of the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” The Militia Act of 1792 enacted these provisions into law with the militia consisting of; “each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.”

What was not specified in the Constitution, but was clearly understood by all was that the term ‘militia’ meant the militia of the states given its prior usage and understanding in the system set up by the Articles of Confederation.

Note that the Militia Act requires that the militia member is enrolled into his unit. The actual procedure varied from state to state. In most states at most times, it was the responsibility of the local officers to find out who was new to an area and enroll them in the militia.

For example, here is the 1836-37 Revised Statutes of North Carolina:

“That all free white men and white apprentices, citizens of this state, or of the United States, residing in the State, who are or shall be of the age of eighteen, and under the age of forty-five years, shall, as soon as is practicable, be severally and respectively enrolled in the militia of this State, by the captain or commanding officer of the infantry company within the bounds of whose district…such citizen shall reside; and it shall, at all times, be the duty of every captain or commanding officer of any community, to enrol every such citizen, except as hereinafter excepted; and also those between the ages aforesaid, and not exempt by law, who may from time to time, come to reside within the bounds of his district, and remain therein thirty days; and he shall without delay, notify such citizen of his enrolment, by a proper non-commissioned officer of the company, by whom the notice may be given.”

Also note that 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.

A major concern of the various delegates during the constitutional debates over the Constitution and the Second Amendment to the Constitution revolved around the issue of transferring militia power held by the States’ (under the existing Articles of Confederation), to Federal control. The new Constitution effected a dramatic shift of military power from being militia based and predominately controlled by the States towards being controlled by the federal Congress and the President with the addition of a federal army. It was this shift in power with the Federal government being given the power to arm the militia which led to the Second Amendment.

See also:
The Founder’s Constitution
Militia-History and Law FAQ
Militia Mythology

Alamo rant.

This little rant comes from MikeB’s post about the Alamo that was inspired by a similar one at Notionscaptial.

The Mexican-American war was one of the US’s more idiotic wars in terms of after effects (up there with the war for independence). The effects that this war caused and caused this war are plaguing the United States: such as the influx of Hispanics from the Central America, in particular former Mexican Territory. The US does not realise that by annexing a large segment of Mexican Territory, it divided families. As the PBS page on this topic points out:

The issues raised during the U.S.-Mexican War are ones that are still valid today: the contradiction between stated ideals and actual practice; the distinction between a “just” and an “unjust” war; the ways citizenship is defined and identified in a multicultural society; and the challenges in building progressive and democratic nations.

Some way that the Mexican American war was a warm up for the Civil War since many of the officers who fought in this conflict were high ranking officers in the Civil War (Grant and Lee). As the two other posts pointed out, Slavery was one of the many issues in this war (as was the newly discovered gold in California). Territory as well.

War, of course, makes no sense, but this was a War for territory that would ultimately change the character of the US. Even 150 years after this war, the US has not come to grips with the Hispanic culture it has inherited in the South West. There is that Northern European Chauvinism that wants to make everyone speak English and assimilate them into US culture.

The Mexican-American war was also the beginning in the change of attitude toward the Military from the Civilian Militia defence forces to full time Standing Armies. The Militia is not supposed to be used as a force for conquest, but as a means of protecting the homeland. The fact that the militia is an amateur force with primarily Civilian occupations was supposed to keep it from being used away from its home.

“Provided, That the militia of any state shall not be marched out of such state without the consent of the executive thereof, nor be continued in service out of the state, without the consent of the legislature thereof, for a longer term than six weeks; and provided, that the power to organize, arm, and discipline the militia, shall not be construed to extend further than to prescribe the mode of arming and disciplining the same.”–Melancton Smith, Proposed Amendment, New York Ratifying Convention


At one time it was said, that the militia under the command of the national government might be dangerous to the public liberty; at another, that they might be ordered to the most distant places, and burthened with the most oppressive services; and at another, that the states might thus be robbed of their immediate means of defence. How these things could be accomplished with the consent of both houses of congress, in which the states and the people of the states are represented, it is difficult to conceive. Joseph Story, Commentaries on the Constitution 3:§§ 1197

The Mexican-American War has unfortunately passed into the void of US history. Its realities have been replaced by myths despite the fact that it added Hispanic Territories and Culture to the United States. This war along with the Spanish-American War ensured that Hispanic culture would be part of the US Culture.

Needless to say, I wish that the Mexicans had won this conflict. That would have put a halt, or at least slowed down, US imperialism.

SEE:
PBS’s US-Mexican War
Was the US-Mexican War Necessary?