Article 1 §8.16 of the Constitution is about Congress’ power over militias. It is the second of two “Militia Clauses.” I suspect that having militias in the Constitution is a big deal. You know, like almost everything in the Constitution.

Democracy. It seems boring until it falls apart. That’s why I’m studying the Constitution, one clause at a time. I’m up to Article 1 §8.16.

Article 1 §8.16

This is the second of two “Militia Clauses.” The first one talked about Congress’ power to call forth the militia and for what purposes. This one says Congress has the 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;

I’ve read through the Constitution before, but don’t remember noticing the Militia Clauses. I probably substituted “military” for “militia” in my head, since the last few clauses were all about armies. But a militia is not the same as an army.

Regulation of Militias

Last week I mentioned Moore v. Houston, and it’s important again this week. Together with the National Defense Act of 1916, it seems to be the main legal basis for all things militia management. I hope I’m not oversimplifying when I say that basically the conclusion is:

States, keep on keeping on with your militia self until the feds feel like stepping in. Then whatever they say goes, except for assigning rank and training officers. Those always stay with you.

Which seems a little weird to me. But I guess even when you’re building a nation “from scratch,” you still have some pre-existing conditions you have to work around.

Militias Today

I’m ashamed to say I still find the current militia situation confusing. Except that I am now clear about one thing: the white guys with rifles who form groups and “take a political stand” (with guns) are, legally speaking, not militias. The correct term is terrorist or paramilitary organization, depending on what their “political action” entails.

Militias, according to American law, are government organizations, trained and staffed by the states and following orders from the federal government. Over time, the types of orders they might be given have changed.

According to Wikipedia:

In the 21^st century so far, over 300,000 National Guard troops have been deployed to Afghanistan and Iraq, despite the fact the foreign military deployment doesn’t, per the requirements of Clause 15 “execute the Laws of the Union, suppress Insurrections and repel Invasions.” But they were also staffed the federal response to Hurricane Katrina, and were deployed to shovel snow and feed livestock during the blizzards of 2007.