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Subject Area: Law
Topic: The American Revolution and Constitution

§ 230.: Regulation of the militia.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 230.

Regulation of the militia.—

Congress is authorized 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.”5 The actual control of the militia is, therefore, reserved to the States, until the President of the United States has exercised the power, which may be given him by Congress1 to call the State militia into the service of the United States, when the militia becomes for the time being a part of the United States army; and although the States may regulate the appointment of the officers of the militia, not only are these officers subject to the orders of the President, but they are also subordinate to those officers who may be placed by the President over them in general command of the army or of divisions of the army.2 And when the President, in pursuance of the authority of Congress calls out the militia of the State, he may make his requisition upon the Governor of the State, or directly upon the militia officers. Any one refusing to obey this call subjects himself to punishment under the military laws.3

As already stated, the power to regulate and control the militia of the country is expressly reserved to the States; and hence it cannot be doubted that the power of maintaining a militia was not intended to be included in the prohibition by the constitution of the keeping of troops in time of peace by the States.4 Not only is that true, but it is competent for a State to make it unlawful for any body of men, other than the regularly organized volunteer militia of the State, and the troops of the United States, with an exception in favor of students in educational institutions in which military instruction is given, to associate themselves together as a military company, or to drill or parade with arms in any city or town of the State, without the license of the Governor. Such a statute is not inconsistent with any constitutional provision, and is a reasonable regulation in the interest of public order.1

[5]Const., art. I., § 8, cl. 16.

[1]Congress is authorized to “provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions.” U. S. Const., art. I., § 8, cl. 13.

[2]See Kneedler v. Lane, 45 Pa. St. 238.

[3]Houston v. Moore, 5 Wheat. 1; Martin v. Mott, 12 Wheat. 19.

[4]U. S. Const., art. I., § 10, cl. 3; Luther v. Borden, 7 How. 1.

[1]Dunne v. People, 94 Ill. 120 (34 Am. Rep. 213). See ante, § 173.