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Unorganized militia is a term used in United States law to collectively refer to all persons who are not in a government-organized military service, but who are subject to conscription or muster into such a service at the direction of a government authority. The unorganized militia is not an operational military force capable of any type of action, but rather is a legal term that describes a specifically defined group of people who might be organized at a future date at the discretion of government authority.

The term "unorganized militia" has been the subject of frequent pseudolegal interpretations by fringe groups and private paramilitary bands. Many states have laws prohibiting such groups.

Background and history[edit]

The unorganized militia is not an operational military force, rather it is a legal term used to describe a class of persons who might become organized into an operational military force at some point in the future. The calling-out of the unorganized militia represents the final stage of total mobilization and, in practice, such an extreme measure would only be taken during a national crisis of a serious nature.[1][2] Examples that have been cited of situations in which the unorganized militia might be organized include a land invasion of North America, or the aftermath of a major nuclear weapons attack against the continental United States.[1]

Because it is unorganized, the unorganized militia is itself incapable of military action.[3] The unorganized militia becomes organized by an Act of Congress or, in the case of state unorganized militias, orders of a Governor or resolutions of a state legislature.

Members of the National Guard (pictured, soldiers of Joint Task Force Empire Shield) are expressly not part of the unorganized militia.

Most people are "unaware they are even a member" of the unorganized militia.[1] In a 1984 interview with the Gaffney Ledger of Gaffney, South Carolina, Jasper Varn, then Deputy Adjutant General of South Carolina, admitted he had never heard of the unorganized militia.[1]

Terminology[edit]

The 1903 Dick Act standardized the organization and orientation of the disparate state military forces and was "the first step towards the eventual federalization of the traditional organized militia".[4] The Act repealed the Militia Acts of 1792 and, for the first time, differentiated the militia into two classes: the organized militia (consisting of the National Guards of each of the states), and the reserve militia (consisting of all able-bodied male citizens between 18 and 45 years of age who were not members of the regular armed forces, or of the National Guards of the states). The Dick Act gave to the President the exclusive federal authority to call-out the reserve militia.[4]

The specific term "unorganized militia" saw its first statutory use in the National Defense Act of 1916 in which it was substituted for the earlier term "reserve militia". The Act specified that the unorganized militia could be selectively conscripted to fill vacancies in the organized militia: "if for any reason there shall not be enough voluntary enlistments to keep the reserve battalions at the prescribed strength, a sufficient number of the unorganized militia shall be drafted into the service of the United States to maintain each of such battalions at the proper strength".[5]

The Dick Act, in concert with the National Defense Act of 1916, created the unorganized militia as a vast manpower reservoir which could be conscripted, trained by small cadres of professional soldiers, and then deployed under federal orders in the event of a major war or other serious crisis.[6]

Mobilizations[edit]

Governor of Virginia William Tuck (pictured) used Virginia's unorganized militia statute to place power company workers under military mobilization as a way of preventing a strike.

Since its statutory creation in 1903, the unorganized militia has never been mustered for a military purpose.[1] However, there is at least one instance of the unorganized militia being mustered for purposes of manpower control.

In 1946, to stop a threatened strike by workers at the Virginia Electric and Power Company, Governor of Virginia William Tuck mobilized all Virginia Electric and Power workers into into the armed forces of the Commonwealth of Virginia by virtue of their status as members of Virginia's unorganized militia.[7][8] The move, which caused 1600 civilian employees to be instantly pressed into nominal military service, was designed to allow Tuck to order the workers to remain at their jobs under penalty of court martial.[9][7]

A similar tactic was threatened by President of the United States Harry Truman in 1947 when he said he intended to mobilize all members of the Brotherhood of Locomotive Engineers and Trainmen – which had called for a nationwide railway strike – into the Army of the United States, by virtue of their membership in the unorganized militia, so as to compel them to continue working.[7]

In both cases, the potential strike actions were called off by organizers.[7]

Composition[edit]

Federal unorganized militia[edit]

The unorganized militia, under U.S. federal law, consists of all male United States citizens between the ages of 17 to 45 who are not members of the National Guard of the United States or the armed forces of the United States.[10] It is established in Title 10 of the U.S. Code which prescribes:


Notably, though females can belong to the organized militia (specifically, the National Guard), the unorganized militia consists exclusively of males.

State unorganized militias[edit]

Composition[edit]

Separate from the U.S. Code, most individual states also classify those of their citizens not in regular military service as part of a state unorganized militia. In Arizona, the unorganized militia includes men and women age 18–45 who are not in organized military service with the exception of judges, members of the Arizona State Legislature, the seriously disabled, convicted felons, and "members of the clergy".[11][12] The Arkansas unorganized militia, meanwhile, is composed of able-bodied men age 17–45 who are, or intend to become, U.S. citizens.[13] Alaska places no upper age limit on its unorganized militia, it including both male and female citizens age 17 and older.[14]

Possible exemption of federal residents[edit]

Writing for the majority in Evans v. Cornman, Harry Blackmun explained that the appellants in the case – persons who lived on a federal enclave (specifically, in that case, the National Institutes of Health campus) – were "exempt from service in the State's [Maryland's] unorganized militia".

Authority to assemble[edit]

The authority to actually assemble members of the unorganized militia, and to organize them, often lies with a state's governor. In the state of Washington, the governor may "order out the unorganized militia or such portion thereof as he may deem necessary, and cause them to perform such military duty as the circumstances may require" should the state's organized military forces be first exhausted. In Oregon, the governor may "direct the members of the unorganized militia to present themselves for and submit to registration at such time and place and in such manner as may be prescribed by military department regulations", failure to register being classified a misdemeanor. Utah law directs that, once assembled, the unorganized militia shall "be organized into units as provided by the rules and regulations governing the regular army of the United States".[15]

Pseudolegal interpretations[edit]

At various points, groups of private citizens have organized themselves into paramilitary groups under the belief that such groups are implicitly sanctioned by statutes referencing the unorganized militia.[16] However, the United States Constitution establishes that the militia is a construction of the state subject to its orders.[17] Ergo, while most of the public are part of the unorganized militia, only the government can order its assembly, prescribe its training, or appoint its officers; it cannot appoint its own officers or mobilize itself and depends on a higher, civilian authority to legally function.[17] Private militias "erase the historic link between militias and federal control. Instead of a tool of the state, these new militias positioned themselves against the state".[18]

Private militia bands who assemble themselves or elect their own officers can run afoul of laws which exist in many states outlawing such groups.[16] In Presser v. Illinois, laws banning private militias were upheld by the U.S. Supreme Court as constitutional and valid.[16]

Some groups have alleged that the Second Amendment's reference to a "well-regulated" militia refers to the unorganized militia.[19][20] However, the unorganized militia is – by definition – unorganized as opposed to "well-regulated", or organized.[8][19]

In United States v. Warin the United States Court of Appeals for the First Circuit affirmed that being a member of the unorganized militia conferred upon one no special status.[8]

See also[edit]

References[edit]

  1. ^ a b c d e "You May Have Already Been Drafted". Gaffney Ledger. March 5, 1984. Retrieved January 4, 2018.
  2. ^ Cottrol, Robert (1994). Gun Control and the Constitution: Sources and Explorations on the Second Amendment. Taylor & Francis. p. 133. ISBN 0815316666.
  3. ^ Thacher, Archibald (June 1945). "The Relation of the Militia Clause to the Constitutionality of Peacetime Compulsory Universal Military Training". Virginia Law Review. 31 (3): 54–55.
  4. ^ a b Sieg, Kent. "America's State Defense Forces" (PDF). dtic.mil. Defense Technical Information Center.
  5. ^ Carter, William (March 1917). "Our Defective Military System" (PDF). The North American Review. 205 (736): 356–366.
  6. ^ Brown, John (2011). Kevlar Legions: The Transformation of the United States Army 1989–2005. p. 11. ISBN 1300079541.
  7. ^ a b c d Crawley, William. "William M. Tuck (1896–1983)". Encyclopedia Virginia. Virginia Foundation for the Humanities. Retrieved December 31, 2017.
  8. ^ a b c Dougherty, Chuck (Summer 1995). "The Minutemen, the National Guard and the Private Militia Movement: Will the Real Militia Please Stand Up". John Marshall Law Review. 28 (4): 959–985.
  9. ^ "Coal Strike Aversion Termed Dim". Herald-Journal. Associated Press. March 30, 1946. Retrieved January 1, 2018.
  10. ^ "Dick Tater". snopes.com. Snopes. Retrieved December 31, 2017.
  11. ^ "26–121. Composition of militia; persons exempt". azleg.go. State of Arizona. Retrieved January 1, 2018.
  12. ^ "26–122. Components of militia". azleg.gov. State of Arizona. Retrieved January 1, 2018.
  13. ^ "§ 12-61-101 – Division and composition". justia.com. Justia. Retrieved January 1, 2018.
  14. ^ "Alaska Statutes Title 26. Military Affairs, Veterans, Disasters, and Aerospace § 26.05.010. Alaska militia established". findlaw.com. FindLaw. Retrieved January 1, 2018.
  15. ^ "39-1-7 Muster of unorganized militia" (PDF). Utah Code. State of Utah. Retrieved January 1, 2018.
  16. ^ a b c Doyle, Charles (2002). Vigilantes and Unauthorized Militia in America. Nova Publishers. pp. 37–38. ISBN 1590333330.
  17. ^ a b "Join A Militia – Break The Law?". constitution.org. Constitution Society. Retrieved January 1, 2018.
  18. ^ Reinstein, Thomas (January 29, 2016). "Ammon Bundy's Wrongheaded History of Militias Is Getting People Killed". History News Network. Retrieved January 1, 2018.
  19. ^ a b Williams, David (December 1991). "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment". Yale Law Journal. 101 (3): 551–615.
  20. ^ Yassky, David. "The Second Amendment: Structure, History, and Constitutional Change". DigitalCommons@Pace. Pace University. Retrieved December 31, 2017.
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