Article 1, Section 8, Clause 12
[Volume 3, Page 162]
St. George Tucker, Blackstone's Commentaries 1:App. 272--751803
The objects of this clause of the constitution, although founded upon the principle of our state bill of rights, Art. 8, declaring, "that a well regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state," were thought to be dangerous to the state governments. The convention of Virginia, therefore, proposed the following amendment to [Volume 3, Page 163] the constitution; "that each state respectively should have the power to provide for organizing, arming, and disciplining it's own militia, whenever congress should neglect to provide for the same." . . . A further amendment proposed, was, "that the militia should not be subject to martial law, except when in actual service, in time of war, rebellion, or invasion." . . . A provision manifestly implied in the words of the constitution. As to the former of these amendments, all room for doubt, or uneasiness upon the subject, seems to be completely removed, by the fourth article of amendments to the constitution, since ratified, viz. "That a militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed." . . . To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government. In pursuance of these powers, an act passed, 2 Cong. 1 Sess. c. 33, to provide for the national defence, by establishing an uniform militia throughout the United States; and the system of organization thereby established, has been carried into effect in Virginia, and probably in all the other states of the union.
Uniformity in the system of organization, and discipline of the militia, the constitutional defence of a free government is certainly desirable, and must be attended with beneficial effects, whenever the occasion may again require the co-operation of the militia of the states respectively. The want of power over these subjects, was one of the defects of the former system of government under the confederation; and the consequent want of uniformity of organization, and of discipline, among the several corps of militia drawn together from the several states, together with the uncertainty and variety of the periods of service, for which those corps were severally embodied, produced a very large portion of those disgraces, which attended the militia of almost every state, during the revolutionary war; and, thus contributed to swell the national debt, to an enormous size, by a fruitless expence. By authorising the federal government to provide for all these cases, we may reasonably hope, that the future operations of the militia of the confederated states, will justify the opinion, that they are the most safe, as well as most natural defence of a free state. An opinion, however, which will never be justified, if the duty of arming, organizing, training, and disciplining them, be neglected: a neglect the more unpardonable, as it will pave the way for standing armies; the most formidable of all enemies to genuine liberty in a state.
We have seen that the appointment of the officers of the militia, and the authority of training them, are expressly reserved to the states, by this article: this was considered as a most important check to any possible abuse of power in the federal government, whenever the aid of the militia should be required by it.
Notwithstanding this wise precaution in the constitution, the fifth congress appear to have disregarded it, by authorising the president of the United States, to enlist and organize volunteers, or special corps of militia, whose officers HE was authorised to appoint, either by his own authority, or with the concurrence of the senate; they were likewise to be trained and disciplined in the manner which he should direct, and be liable to be called upon to do duty, at any time that he should judge proper, within two years after their acceptance, and be exempted, during the time of their engagement, from all militia duty, which might be required of them by the laws of the United States, or of any state, and from every fine, penalty, or disability, provided to enforce the performance of any duty or service in the militia. . . . The number of these corps was at first unlimited, and the president was authorised to sell or lend them artillery, small-arms, accoutrements, from the public arsenals. L. U. S. 5 Cong. c. 64. Sec. 3, and c. 74. . . . As these select corps were not called into actual service by those acts, but were only liable to be called upon at the pleasure of the president, it seems impossible to view them in any other light, than as a part of the militia of the states, separated by an unconstitutional act of congress, from the rest, for the purpose of giving to the president powers, which the constitution expressly denied him, and an influence the most dangerous that can be conceived, to the peace, liberty, and happiness of the United States.
Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.
© 1987 by The University of Chicago