It Takes a Militia
by Glenn Harlan Reynolds, Professor of Law, University of Tennessee

          The Framers of our Constitution had a fear of standing armies, and of governments backed by them, that one legal scholar calls "almost hysterical." A standing army of professionals, they were sure, would eventually do one of two things: agitate for foreign military adventures to keep itself employed, or turn against its civilian masters to create a military dictatorship. To these two political threats they added a third, moral danger: that citizens used to relying on professionals for the defense of their liberties would come to take their freedom lightly.
          The Framers' solution was the militia, an armed body that included all citizens qualified to vote. Whites without property were also eligible for the militia, provided they were not felons, and so were some blacks. The Framers saw this broad-based military institution as a vital protection against tyranny. Politicians and professional military officers might betray the people, but the militia could not because it was the people. And although militiamen might lack the skills and training of full-time, professional soldiers, those defects would be offset by their vastly greater numbers and morale. Politicians might call out the militia to enforce the laws, but always with the risk that if the laws were unjust the militia might decide to sit things out, or even side with the opposition. Think of it as armed jury nullification.
          The militia system also had an important moral component. By serving in the militia, a citizen said he was prepared to stand up for his rights, even at the cost of his life. Militia service brought together people from disparate social backgrounds and reminded them of their shared citizenship. It also bred a familiarity with military matters that helped to dispel the mystique of professional soldiers, an otherwise potent political tool of the establishment.
          Unfortunately, the militia system foundered on the twin rocks of public apathy and elite dissatisfaction. Of the two, the latter was more decisive. The militia system was designed to make foreign military adventures difficult, and it did. As recently as 1912, when the federal government tried to send state militia units into Mexico, the attorney general opined that such an order was unconstitutional: Militias could be called into federal service only in cases of invasion or insurrection, not in the service of quasi-imperial ambitions abroad. Earlier efforts to invade Canada had encountered similar difficulties. This problem, coupled with a jealousy from professional military men that dated back to the Revolutionary War, led to the replacement of the militia system with the National Guard, a federally controlled force far more amenable to superpower demands.
          Although the National Guard is sometimes referred to as the modern-day militia, it is in fact a federal force, subject to the control of the president in almost the same fashion as regular troops. The patina of state control that remains is almost entirely cosmetic. As Yale law professor Akhil Amar writes: "Nowadays it is quite common to speak loosely of the National Guard as 'the state militia,' but 200 years ago any band of paid, semiprofessional part-time volunteers, like today's Guard, would have been called 'a select corps,' or 'select militia' -- and viewed in many quarters as little better than a standing army. In 1789, when used without any qualifying adjective, 'the militia' referred to all citizens capable of bearing arms." The statute books continue to reflect this distinction in vestigial form: Title 10, Section 311 of the U.S. Code declares that all military-age males, and some females, are members of "the unorganized militia of the United States."
          All of this may come as a surprise to the average American, who, thanks to media stereotyping, probably associates the term militia with tax-protesting, bogus-lien-issuing wackos, and who may even think that the National Guard is the militia that the Constitution talks about. But the classical notion of the militia and the virtues of an armed citizenry have attracted the interest of modern academics. During the last few years, such well-known constitutional scholars as Amar, Robert J. Cottrol of George Washington University, Brannon Denning of Yale Law School, William Van Alstyne of Duke Law School, and Alan Hirsch of Hartwick College have been sympathetically revisiting the old vision of the militia. Some of them have even concluded that it might be a good idea to consider bringing the classical militia back in some form.
          To this number can now be added former senator and former Democratic presidential candidate Gary Hart, a founder of the liberal defense-intellectual establishment. Hart's latest book, The Minuteman: Restoring an Army of the People (New York: The Free Press, 188 pages, $23.00 -- $16.10 at Amazon.com) makes a strong case for bringing back something very much like the classical militia, or perhaps the 20th-century Swiss version, in this post-Cold War era. Hart's argument deserves far more attention than it will probably receive if defense and foreign affairs elites have their way. Hart opens by noting that our current military posture could be described as "Eisenhower's Nightmare": ... 

(This is less than half the article / book review. The whole article begins on page 70 of the May, 1999 issue of Reasonmagazine HERE.) Subscribe to Reason HERE.