The Militia Clauses
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.
Calling Out the Militia
The states as well as Congress may prescribe penalties for failure to obey the President’s call of the militia. They also have a concurrent power to aid the National Government by calls under their own authority, and in emergencies may use the militia to put down armed insurrection.1784 The Federal Government may call out the militia in case of civil war; its authority to suppress rebellion is found in the power to suppress insurrection and to carry on war.1785 The act of February 28, 1795,1786 which delegated to the President the power to call out the militia, was held constitutional.1787 A militiaman who refused to obey such a call was not “employed in the service of the United States so as to be subject to the article of war,” but was liable to be tried for disobedience of the act of 1795.1788
Regulation of the Militia
The power of Congress over the militia “being unlimited, except in the two particulars of officering and training them . . . it may be exercised to any extent that may be deemed necessary by Congress. . . . The power of the state government to legislate on the same subjects, having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the States, subordinate nevertheless to the paramount law of the General Government. . . .”1789 Under the National Defense Act of 1916,1790 the militia, which had been an almost purely state institution, was brought under the control of the National Government. The term “militia of the United States” was defined to comprehend “all able-bodied male citizens of the United States and all other able-bodied males who have . . . declared their intention to become citizens of the United States,” between the ages of eighteen and forty-five. The act reorganized the National Guard, determined its size in proportion to the population of the several States, required that all enlistments be for “three years in service and three years in reserve,” limited the appointment of officers to those who “shall have successfully passed such tests as to . . . physical, moral and professional fitness as the President shall prescribe,” and authorized the President in certain emergencies to “draft into the military service of the United States to serve therein for the period of the war unless sooner discharged, any or all members of the National Guard and National Guard Reserve,” who thereupon should “stand discharged from the militia.”1791
The militia clauses do not constrain Congress in raising and supporting a national army. The Court has approved the system of “dual enlistment,” under which persons enlisted in state militia (National Guard) units simultaneously enlist in the National Guard of the United States, and, when called to active duty in the federal service, are relieved of their status in the state militia. Consequently, the restrictions in the first militia clause have no application to the federalized National Guard; there is no constitutional requirement that state governors hold a veto power over federal duty training conducted outside the United States or that a national emergency be declared before such training may take place.1792
1784 Moore v. Houston, 3 S. & R. (Pa.) 169 (1817), aff’d, Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820).
1785 Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Tyler v. Defrees, 78 U.S. (11 Wall.) 331 (1871).
1786 1 Stat. 424 (1795), 10 U.S.C. § 332.
1787 Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32 (1827).
1788 Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820); Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827).
1789 Houston v. Moore, 18 U.S. (5 Wheat.) 1, 16 (1820). Organizing and providing for the militia being constitutionally committed to Congress and statutorily shared with the Executive, the judiciary is precluded from exercising oversight over the process, Gilligan v. Morgan, 413 U.S. 1 (1973), although wrongs committed by troops are subject to judicial relief in damages. Scheuer v. Rhodes, 416 U.S. 233 (1974).
1790 39 Stat. 166, 197, 198, 200, 202, 211 (1916), codified in sections of Titles 10 & 32. See Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181 (1940).
1791 Military and civilian personnel of the National Guard are state, rather than federal, employees and the Federal Government is thus not liable under the Federal Tort Claims Act for their negligence. Maryland v. United States, 381 U.S. 41 (1965).
1792 Perpich v. Department of Defense, 496 U.S. 434 (1990).