by Ryan McMaken
Early Americans feared the federal government would overwhelm the states with a large standing army and better-armed military force. To prevent this, many supported a decentralized system of state militias which would provide the bulk of military land forces within the United States. Over time, though, the federal government has increasingly centralized military power and diminished the role of state governments in military funding and planning. While privately-owned firearms have their role in balancing against federal power, the decentralized militia system — now defunct — was intended to play a much larger role in preventing the establishment of an overwhelming federal military force.
The Early Years: A “Well-Regulated Militia”
As originally conceived in the 1770s, the United States was a confederation of independent states assembled for the purposes of military defense. Thus, it is not surprising that the text of the first US Constitution — the so-called Articles of Confederation — is primarily concerned with foreign and military affairs.
Most of the document deals with arming an army and navy, and conducting international affairs such as making treaties, appointing military officers, and funding military equipment. The framers of the document, however, were careful to allow states opportunities to veto federal actions. According to the text:
The United States in Congress assembled shall never engage in a war, nor grant letters of marque or reprisal in time of peace, nor enter into any treaties or alliances … nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine States assent to the same.
In other words, a super-majority of nine member states — more than two-thirds of the states — was necessary for approval of any military actions on the part of the central government.
This did not mean the states were defenseless, otherwise. The document was clear that the states themselves were to provide most of the land forces:
[E]very State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
Those familiar with the Second Amendment will recognize the phrase “well-regulated … militia” which was eventually incorporated into the new Constitution as part of the Bill of Rights.
This phrase reflected what was, by the late eighteenth century, a commonly accepted political reality in the United States. Namely, that state militias were the primary means of dealing with threats from neighboring governments, Indian tributes, and internal rebellions. The United States maintained a permanent professional military force, but it remained small and inadequate to address any large scale military operations.
As designed, the militias were to be the means by which threats from an excessively powerful central government were to be repulsed. We see this in Patrick Henry’s own arguments against the new constitution when he concluded that without locally-controlled arms to oppose the armies of a national government, the member states themselves would be defenseless. In response to the suggestion that citizens could assert their rights by assembling the people in a legislative body, Henry sarcastically declared:
Oh, Sir, we should have fine times indeed, if to punish tyrants, it were only necessary to assemble the people! Your arms wherewith you could defend yourselves are gone. … Did you ever read of any revolution in any nation, brought about by the punishment of those in power, inflicted by those who had no power at all? A [federally-controlled] standing army we shall have also, to execute the execrable commands of tyranny: And how are you to punish them? Will you order them to be punished? Who shall obey these orders?
During the ratification period for the new Constitution, anti-federalists frequently expressed concern that the new federal government may be strong enough to raise a standing army that would dwarf the power of the state-controlled militias. Standing armies, of course, had long been synonymous with abusive government, and targeted by liberals in the eighteenth and nineteenth centuries. Anti-federalists understood the importance of a decentralized and locally-controlled military power as a check on centralized political power.
The Purpose of a Decentralized Militia
For this reason, the anti-federalists demanded the adoption of what we now know as the Second Amendment which reflected their view that state control of military resources was an important defense against the power of Congress and the federal executive power.
Nowadays, many opponents of gun control often support the idea that the militia is — to use George Mason’s words — “all men capable of bearing arms.” This is no doubt one (correct) interpretation of the term “militia” as used by the anti-federalists. But it is not the only interpretation.
The anti-federalists — and the framers of the earlier constitution — assumed the necessity of a “a well-regulated and disciplined militia, sufficiently armed and accoutered” by the state governments themselves. They assumed this precisely because it was such an established part of the status quo in the late eighteenth century. In times of war, it was also assumed that the states themselves would supply a sizable number of the troops and armaments necessary for defense. That is, the federal government would be partially dependent on the state governments for supplying troops to wars.
This situation endured through the nineteenth century, during which, in many cases, the states themselves would continue to play an active and independent role in supplying military forces. We see this in the text of the current constitution itself where it gives Congress the power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
State Opposition to “calling forth the militia”
While the Constitution of 1787 does not provide an explicit veto on the use of state militias, there were nevertheless both statutory and customary barriers to presidents drawing upon local troops without local consent.
In some cases, state governments asserted control over state militia troops when federal orders conflicted with state agendas. For example, during the War of 1812, the governor of Vermont Martin Chittenden attempted to recall Vermont troops that had been federalized by the US government and sent to New York. Chittenden declared “[It] has been ordered from our frontiers to the defence of a neighboring state … [and] placed under the command, and at the disposal of, an officer of the United Sates, out of the jurisdiction or control of the executive of this state.”
During the same conflict, the state legislature of Connecticut issued a declaration passed by both houses: “it must not be forgotten, that the state of Connecticut is a FREE, SOVEREIGN, and INDEPENDENT state; that the United States are a confederacy of states; that we are a confederated and not a consolidated republic.” (emphasis in original)
At the time, the governor of Connecticut refused to comply with a requisition request from the United States Secretary of War. The governor condemned the federal attempt at nationalizing the militia and wrote: “By the principles of the proposed plan … our sons, our brothers and friends are made liable to be delivered, against their will and by force, to the marshals and recruiting officers of the United States, to be employed not for our defence, but for the conquest of Canada …” The state assembly concluded that the federal demands were “not only intolerably oppressive, but subversive of the rights and liberties of the state, and the freedom, sovereignty, and independence of the same, and inconsistent with the principles of the constitution of the United States.”
According to William Chauncey Fowler, writing in his book Local Law in Massachusetts and Connecticut:
The Governor of Connecticut took the ground that, by the constitution fot he United States, the entire control of the militia is given to the state, except in certain specified cases, namely: to execute the laws of the union, the suppress insurrection, and to repel invasions, and he contended that neither of these cases actually existed. He also took the ground that the militia could not be compelled to serve under any other than their own officers, with the exception of the president himself, when personally in the field.
The state legislature concurred.
Kentucky Declares Neutrality
Another notable case of a state asserting control over its own military resources is Kentucky’s insistence on neutrality in the early days of the American Civil War.
By 1860, demographic and economic changes in Kentucky had made it a semi-industrialized state with a declining reliance on the slave economy. Kentucky had close economic ties with both Northern and Southern states. Although the Kentucky governor Beriah Magoffin was a Southern sympathizer, he was unwilling to support secession and insisted on neutrality in the war. Magoffin announced “I will send not a man nor a dollar for the wicked purpose of subduing my sister Southern States,” and he refused a federal demand for four regiments from Kentucky to be added to the Union army.
Magoffin was not alone in neutralist views, and former Kentucky Senator Archibald Dixon urged local citizens “to stand firm with her sister Border States in the centre of the Republic to calm the distracted sections.” By this, Dixon claimed, Kentucky “saves the Union and frowns down Secession.” Similarly, an assembly of voters in Louisville convened a public meeting on the matter in Louisville and concluded it was the “duty of Kentucky … to maintain her present independent position, taking sides not with the [Lincoln] Administration, nor with the seceding states, but with the Union against them both.” Reflecting on the extent to which Kentucky had separated itself from both the North and the South during this period, Lowell Harrison has suggested that, at the time, “a bewildered observer from abroad might well have concluded that the United States had become three countries: the Union, the Confederacy, and Kentucky.”
Predictably, Lincoln himself — who had concluded he must avoid military intervention to force Kentucky’s compliance — took a dim view of Kentucky’s neutrality, declaring the doctrine of “armed neutrality” to be “disunion completed,” while neutrality “recognizes no fidelity to the Constitution, no obligation to maintain the Union” and as “treason in effect.”
Lincoln would eventually obtain political support from Kentucky, but not because he won the constitutional or legal argument. Eventually, Unionists took control of the state government and sided with the Union over the confederacy, ending the debate.
Nevertheless, the Kentucky case merely continued the established practice of state governments vetoing federal use of state militias and military resources. In the case of Kentucky, the assertion that state governments could prevent federalization of local troops had worked as intended: Unionists — both in Washington and locally — were forced to win political support for the Northern side among Kentuckians before state resources could be used to prosecute the war.
Technically, Lincoln faced this problem in every northern state, although most state governments willingly sent state-organized troops to the war effort because they were ideologically aligned with the anti-secession movement. Had Lincoln failed to win political support from the individual states, however, he would have lacked the resources necessary to prosecute the war. At the time, the federal government simply lacked the resources necessary to carry on a large military operation of the type needed to invade the Southern states.
The Twentieth Century: State Militias Nationalized
By the early twentieth century, the federal government began to consolidate control over military resources in the states.
The first large step toward consolidation came in the form of the Militia Act of 1903 which for the first time began the use of the phrase “National Guard” in federal statutes. This new legislation also paved the way for the use of National Guard units to be used outside the territory of the United States, with a 1906 amendment specifically creating a provision for the use of militia units “either within or without the territory of the United States.”
This provision was later contested on constitutional grounds, but the Congress responded with the National Defense Act of 1916 which made it even easier for the president to call up state troops for federal purposes.
Over time, the line between state militias and federal troops became increasingly blurred, and today, with the exception of the “state defense forces” state National Guard units today do not function independently of the United States government in any meaningful way.
The final nail in the coffin of local control came in 1987 courtesy of Mississippi Congressman Gillespie Montgomery. Montgomery introduced a provision in the 1987 National Defense Authorization Act which specifically states that “The consent of a Governor … may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty.”
In the nineteenth century, of course, this measure would have been considered to be blatantly unconstitutional. But in 1990, the US Supreme Court, reflecting dominant opinion among American politicians, sided with the Congress and its Montgomery Amendment, and ruled against attempts by governors in California and Minnesota to stop deployments of state troops overseas.
Thus, the Montgomery Amendment ended any remaining ability of states to veto federal use of state “militias.” By the mid twentieth century, though, state militias had already been dwarfed by the national army and air force that could function totally independently of states. Thanks to the federal income tax, the federal government no longer need rely on state resources to prosecute large and expensive wars. State reserve forces offer augmentation to the federal standing army, of course, but they no longer provide the essential core of any national fighting force.
Why Military Decentralization is Important
Modern opponents of gun control often claim the need for private ownership of guns as a balance against state military power. Yet, these same people will often also support a powerful, centrally-controlled national military. These two positions are directly at odds with each other.
Moreover, it is not a terribly convincing claim that unorganized and untrained private gun owners by themselves could offer anything other than token resistance to federal military forces as they currently exist. While private firearms ownership does have value in this respect, its value pales in comparison to the need for a means of decentralizing federal military forces and providing a way for local institutions to deny federal institutions access to state military forces. If gun control opponents were serious about limiting military power, they would advocate for a radical change to the balance of military power in the United States with an eye toward creating a federal dependence on state-controlled militaries that can only be deployed with the consent of state governments.
(As with all attempts to decentralize political power, devolution to the state level should, of course, not be viewed as the end-all-be-all of decentralization, but only as a step in the right direction toward even more radical decentralization and localism.)
It has long been apparent that as long as the federal executive has direct access to immense amounts of military resources, it can send troops anywhere in the world at will, and the Congress lacks the political tools to stop it. The War Powers Act, for example, has never provided any meaningful opposition to presidential military action. Moreover, with the Libya invasion of 2011, the president established that the White House can launch wars in foreign countries without so much as a non-binding Congressional debate.
Given current legal realities and access to enormous amounts of tax revenue, it is likely presidents can continue to launch wars unimpeded by Congress or any other political institution. Given the sheer amount of wealth directly controlled by the federal government, National Guard units would not even be essential to many military conflicts, even if states refused to participate.
Thus, any meaningful opposition to federal military power would need to come in the form of both radical cuts to federal revenues — and federal military spending — and increases in state and local autonomy over military resources.
Additionally, If the federal government were to decide to use the American military against a state or group of states in the US, there is no practical or constitutional obstacle to prosecuting a war on American soil against Americans. The Posse Comitatus Act is a weak reed on which to hang hopes for limiting federal military actions against American citizens.