THE SECOND AMENDMENT OF THE CONSTITUTION OF

THE UNITED STATES: PUBLIC POLICY FOR THE

MILITIA IN 21ST CENTURY AMERICA

A Master Thesis

Submitted to the Faculty

of

American Public University System

by

Deano L. McNeil, Sr.

In Partial Fulfillment of the

Requirements for the Degree

of

Master of Public Administration

January 2015

American Public University System

Charles Town, WV

PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 2

The author hereby grants the American Public University System the right to display these contents for educational purposes.

The author assumes total responsibility for meeting the requirements set by United States copyright law for the inclusion of any materials that are not the author’s creation or in the public domain.

© Copyright 2015 by Deano L. McNeil, Sr.

All rights reserved. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 3

DEDICATION

This thesis paper is dedicated first and foremost to my wife. Without her support, encouragement, insights, and tolerance, I would have never been able to realize this accomplishment in my life. This paper is also dedicated to the men and women who, without fanfare, and with minimal financial and material support and recognition, serve our great nation as members of the various state defense forces and naval militia in the United States, and to the men and women who serve as members of the National Guard.

PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 4

ACKNOWLEDGMENTS

I would like to acknowledge the faculty of American Military University for the quality

instruction that they have provided to me during my tenure at this institution. To say that my

knowledge base and perspective has expanded as a result of their influence and interaction would

be an understatement. Specifically, I would like to offer my warmest thanks to my faculty

advisor for this thesis paper, Dr. Christi Bartman. Her guidance and insight was critical as I

struggled to take a concept in my head that lacked definition and focus, and refine it into a topic

having academic value that I am proud to present to others.

I would also like to acknowledge my leaders, past and present, who I have served with in

the Ohio Military Reserve. Their knowledge and understanding of the concept of the militia

provided me with the foundation for my growing interest in this particular subject. Finally, I

would like to acknowledge former Ohio Military Reserve Captain Michael Gates. Captain Gates

was perhaps not the most understood or appreciated person who wore the uniform of the Ohio

Military Reserve; however, it would be difficult for any person to argue against the fact that PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 5 there are very few individuals who know the history and understand the historical perspective of the militia better Captain Gates, particularly as it pertains to the militia of the State of Ohio.

Very few people have done more to preserve and protect that history.

PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 6

ABSTRACT OF THE THESIS

THE SECOND AMENDMENT OF THE CONSTITUTION OF

THE UNITED STATES: PUBLIC POLICY FOR THE

MILITIA IN 21ST CENTURY AMERICA

by

Deano L. McNeil, Sr.

American Public University System, January 11, 2015

Charles Town, West Virginia

Professor Christi Bartman, Thesis Professor

Through the examination of historical records and events, through the examination of the political thought of the Founding Fathers, and through the examination of the documents of the

Revolutionary War period, the author will attempt to provide evidence that the purpose of the

Second Amendment is to codify the individual right to bear arms, to be used for the purposes of defense of self and of the state; that the militia is made up of the citizenry and that the citizens are the ultimate defense against tyrannical government; and that the government, both state and federal, have a vested interest in the regulation, training, and utilization of the militia. This paper also discusses contemporary militia issues, state defense forces, and naval militia. Based on the findings established through research that was conducted, a proposal for a model policy for the establishment, regulation, and discipline of contemporary militia organizations will be offered.

Finally, a number of areas where future research and legal study regarding the Second

Amendment and militia in the United States will be proposed .

PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 7

TABLE OF CONTENTS

CHAPTER PAGE

I. INTRODUCTION ...... 9

II. LITERATURE REVIEW...... 10

III. CONCEPTUAL FRAMEWORK...... 13

IV. METHODOLOGY...... 14

V. DISCUSSION ...... 16

What is the Militia? ...... 16

The Well-Regulated Militia...... 26

The National Guard...... 30

State Defense Forces...... 31

Naval Militia...... 37

Model Public Policy For Organization Of The Militia...... 39

Conclusions and Basis for Further Research...... 46

VII. LIST OF REFERENCES ...... 51

PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 8

LIST OF FIGURES

FIGURE PAGE

1. States With Active State Defense Forces and Naval Militia...... 34

2. State Military Justice Systems ...... 40

3. Age for Militia Service Under State Law ...... 42

4. Provision in State Law for a State Defense Force and Whether Force is Active ...... 45

PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 9

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed (Transcript of the Bill of Rights, 1789)." - The Second Amendment to the Constitution of the United States.

The Second Amendment to the Constitution of the United States of America establishes one of the fundamental and inalienable rights of citizenship bestowed upon us, a right to the possession of arms. Its inclusion in the Bill of Rights by our Founding Fathers does much to underscore just how significant this right is to our nation. However, as important as this right is to our citizens, it has been an equal source of controversy and confusion, particularly regarding the gun control debate. Both sides of the gun control debate attempt to use, or perhaps even misuse, this amendment to provide strength to their respective positions on how much or how little gun regulation and legislation that there should be, or even whether the right to bear arms is an individual right or a collective one.

However, it is not the purpose of this paper to argue the merits or disadvantages of gun control, although the findings of this thesis could help to define and shape the gun control debate.

Instead, the purpose of this thesis is to define two more fundamentally important concepts that significantly affect how the Second Amendment should be interpreted. The first concept that must be addressed is actually defining of who and what the militia is. The second concept that must be addressed is to provide a description of just what is a well-regulated militia is, or rather to describe what the regulatory structure of the militia should be.

A portion of this thesis will be devoted to defining the militia through a number of means. First, an examination will be conducted of the structure and utilization of the militia at the time of the Revolutionary War. A brief examination will be made of historical documents associated with the structure and regulation of the militia during that period, including the

PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 10

Articles of Confederation and the Constitution of the United States, along with insights from the

Founding Fathers on how they viewed and defined the militia and the Second Amendment, through an examination of some of their writings.

This historical examination of the concept of the well-regulated militia will then segway into a contemporary analysis of the militia. The current structure of the 21st century militia will be examined, and a sampling of regulatory structures will be reviewed to determine how the states utilize their militia. An overview of the establishment of the National Guard and state defense forces will be conducted as well. Finally, the information gained through the examination of the historical background of the militia and the review of the militia in contemporary American society will be used to develop and present a model policy for how the militia should be structured and how it should be regulated to ensure that it continues to be relevant to our modern society and to ensure that it can meet the needs of the American citizens, now, and for many years to come.

Literature Review

A review of the literature was conducted to examine the body of knowledge that is available in the three areas that this thesis focuses on. The first area of focus is on providing a historical perspective and definition of what the militia is and the relationship between the militia and the government during the Revolutionary War period of our nation's history and founding of the United States.

There is a significant amount of historical information about the militia during the

Revolutionary War era to draw upon. The challenge was to establish the appropriate links between historical events and the regulatory and reference documentation of that period that established the formal link and relationship between the militia and the state and national PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 11 governments. This information is also important in demonstrating the composition of militia units and how they were structured and governed. Bray offers a very good example of how many of the militias were formed during the Revolutionary period. He demonstrates that many of the militia were "militia of association" that were independent associations of citizens that met for the common defense, but also sought charters from the government (Bray, 2013, para. 4). In this manner, militias were institutions not only of the respective state (and of the colonies prior to independence) but also institutions of the people. This relationship is further defined in historical documents, such as Article VI of the Articles of Confederation, which mandated that each state maintain a militia and provided the conditions for how such militia should be maintained (Transcript of Articles of Confederation, 1777). Article 1, Section 8, and Article 2,

Section 2 of the Constitution of the United States are also important information sources regarding the militia, as they not only recognized that the militia are entities of the states, but also prescribed that the Federal government had power to call the militia into the service of the

Federal government, as the Federal government did not maintain a standing army at that point in history. They also stated that the President is the commander-in-chief of the militia when called into Federal service (Transcript of the Constitution of the United States, 1787). The Federal government's power to utilize the militia was further codified and refined in the Militia Act of

1792, which defined the militia in the Federal context and prescribed who members of the militia were and how they were to be equipped (The Militia Act of 1792, 1792). Alexander Hamilton and James Madison offered some insight regarding the militia in the Federalist Papers, No. 29 and No. 46 respectively. Other sources include the original constitutions of the 13 states, of which a sampling based on region are used in this paper.

An examination of the militia in modern America begins with an examination of the Dick PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 12

Act of 1903, which replaced the Militia Act of 1792, and subsequent revisions of that law, which provided for the creation of the National Guard as a militia under state control, but also as a

Federally recognized primary military reserve resource that could be incorporated into the Army of the United States (Legal Basis of the National Guard, n.d.). An examination is also made of how these historical laws served as the basis for the modern federal definition of the militia, as it pertains to the National Guard, under Title 10 of the United States Code. This law defines the militia as able bodied persons between the ages of 17 and 45, who are members, or who have declared their intent to be members of the National Guard, as members of the militia (10 USC

7853, 1956). This statute also provides a federal definition of both the organized and unorganized militia.

This paper also examines the concept of land and naval state defense forces, which are authorized each state and territory under USC 32, Section 109 (c). These forces are federally defined as "other military forces" which are under the exclusive control of the state and territorial governors and, unlike the National Guard forces, cannot be called unto federal service (USC

Title 32, 1956). This paper examines how these forces are also defined as state militia, and looks at materials that offers suggestions as to what role these forces can and do play in service to the citizens of their respective states and territories.

The final issue that this thesis examines is how each state statutorily defines and regulates its militia. This examination is accomplished by examining the state constitutions and military statutes of six randomly selected states, and also the State of Ohio, to explore how each state manages its respective military structure and militia forces that it may have. National Guard forces are not specifically included in this particular examination, other than to recognize that the

Adjutants General of the respective states and their staff would possess command and control PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 13 responsibilities over the respective state defense forces. It is also recognized that a state legal regulatory and disciplinary structure must exist when these forces are in state, or Title 32 status.

Based upon the examination of these state constitutions and statutes, this paper will seek to create a model policy that every state and territory can use to manage its non-National Guard forces and regulate its National Guard forces when in state status.

Conceptual Framework

The concept of this thesis is to create a model policy that can be used nationwide to provide a uniform methodology to define a state or territorial militia, provide a method or organizing it, provide a means to regulate it, and provide a disciplinary structure for it.

Currently, there is no uniformity across the states and territories in how they operate their militia.

Even with the National Guard, which is a federally recognized militia, there is little uniformity in regulation and discipline when the National Guard is in Title 32 status.

In conducting an examination of the body of academic knowledge there was little indication that any serious attempt has been made to research the institution of the militia and develop uniform model policy for the organization and regulation of the militia in the United

States. The academic literature that was found generally focused on two particular themes. The first theme was the subject of gun control and the debate of the pro and cons of this issue. In many instances and papers the academic community attempts to use the Second Amendment of the United States Constitution as a means to justify both positions in the gun control argument.

The second area that the academic community focuses on is the area of militia groups, mainly subversive ones. While citizen militia groups have a historical relevance in attempting to define who and what a militia is, for the purposes of this thesis, these modern militia groups have no relevance. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 14

In focusing on creating a modern interpretation of the Second Amendment to fit these two particular topics, the academic community has failed to understand that the interpretation of the Second Amendment must be based upon the period in which it was written, the post

Revolutionary War period of 1789, and not the modern period of 2014. Only by examining how the militia was structured and operated during that period, and only be examining how the

Founding Fathers viewed and defined the militia, can the context of the Second Amendment be established and truly understood. One can then examine the historical context of the militia, as defined in the Second Amendment, and understand how the historical militia has affected and evolved into the contemporary militia, neither of which relate to the gun control issue or the issue of anti-government militia groups.

It is with this in mind that this paper will attempt to examine the historical concept of the militia, explore how it has evolved into the contemporary militia, and attempt to use both the historical and modern information resources to create a militia definition, structure, and model policy for utilization of the militia that can be applied across all states and territories into the 21st

century.

Methodology

As previously stated, the first question that this thesis attempts to answer is, "Who and

what are the militia?" It is the hypothesis of the author that, in the simplest context, the people

are the militia. It is important to identify whether or not this hypothesis is correct, as this

definition is central to the whole concept of what the militia is, how it should be structured, and

how it should be regulated and utilized.

To answer this question, the author plans to utilize a qualitative research method that

examines existing literature, both historical and contemporary. This research will consist of a PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 15 review of a number of different information sources. First, a review will be conducted of historical texts to provide examples of militia organization and membership. This material will also examine literature that examines the nature of American forces that engaged the British

Army in battle during the Revolutionary War. Second, a review will be conducted of a number of historical legal documents, such as a sampling of state constitutions that were written and approved subsequent to the approval of the Declaration of Independence. Third, certain items of literature will be reviewed that will assist in shedding light on the Founding Fathers interpretation of what the institution of the militia is. The Federalist Papers, along with insights of those founders affiliated with the Anti-Federalist movement will be examined as will. Finally, an examination of contemporary documentation will be conducted to determine if the author's hypothesis remains true with the contemporary militia. Some of the documentation that will be examined are a random sampling of contemporary state constitutions, Federal law, including

United States Code Titles 10 and 32, and a review of opinions of the United States Supreme

Court regarding militia in the United States, including the District of Columbia v. Heller, which provide a significant amount of historical insight that may help to address this question (Scalia,

2008).

The next question that will be examined is the issue of what a well-regulated militia is.

To answer this question, an examination of available literature will be conducted to examine the historical relationship between members of the militia, and the relationship between the militias and the state, and the militia and the Federal Government. While historical texts and academic materials can provide insight into this question, a review of a representative sampling of

Revolutionary War period state constitutions will provide insight into this relationship as well, along with the regulatory authority that the state and Federal governments reserved for PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 16 themselves to govern the militia and the powers that were reserved to the militia, such as the appointment of militia officers. This research will extend to contemporary militia and examine the relationships between the militia and the state and federal governments today and the current regulatory structure today. Changes in this relationship, if any, will be examined and described.

Incorporated into this examination is a review of the concept of the National Guard and of state defense forces, which are considered "other military forces," that are specifically reserved for use by state and territorial governors.

Given that the militias are institutions of both the state and the federal government, it is the hypothesis of the author of this paper that there are significant inconsistencies in the way that the militia is regulated, organized, and tasked. To determine if this hypothesis is correct, an examination will be conducted of the state constitutions and state statutes of six randomly selected states, and the State of Ohio, which is the home state of the author. Comparisons between the state military structures will be conducted to determine if there is a significant disparity in military organization between these states. If it is determined that this disparity exists, as preliminary review suggests, then it is the author's purpose to attempt to create a uniform model policy that states could adopt for the purpose of the regulation of state militia; including the National Guard in state status, state defense forces, and naval militia.

What is the Militia?

What is the Militia? Perhaps a better way to phrase the question is, "Who is the Militia?"

As previously stated, it is the hypothesis of the author that, in the simplest context, the people are

the militia. While there is certainly no doubt that the militia is organizational in nature, in

attempting to interpret the Second Amendment, and in attempting to define model policy for the

militia of today, one must examine the wording of the Second Amendment not by modern PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 17 interpretation. Rather, it must be examined and interpreted by the standards of the 18th century; the time that the amendment was written. To define the concept of militia, we must examine the militia of that period and the relationship of the militia between the people and the colonial and state governments. Further, we can gain insights by examining the thoughts of the Founding

Fathers.

The historical origins of the militia can be traced back to the formation of early colonial militia in 1636, less than 30 years after the founding of the colony at Jamestown, in which groups of settlers joined together for mutual protection (National Guard: Legacy, n.d.). It is an interesting historical note that in 1754, a young officer serving in the colonial militia of Virginia was ordered to take a force into the Ohio Valley to challenge French expansion. That officer, whose name was George Washington, established Fort Necessity (where Pittsburgh is now located). After Washington unsuccessfully attacked the French at Fort Duquesne, the French counterattacked and trapped Washington and his troops, forcing Washington to surrender

(Brinkley, 2007, p. 105).

Bray offers insights into how militia organizations were formed and for the purposes that they were formed. He discusses a contract that can be found in the archives of the Rhode Island

Historical Society, from 1774, which describes the formation of a local militia in Kent County,

Rhode Island. This contract states, in part:

"We the subscribers do unanimously join to establish and constitute a military independent company," reads an agreement signed by dozens of local men. "That on every Tuesday and Saturday in the afternoon for the future, or as long as occasion require it shall be judg'd necessary or expedient a Meeting to be held at the House of William Arnold in East Greenwich for the Purpose aforesaid," 'You and Bill and I hereby agree to make an army, and let's meet at Bill's house to practice (Bray, 2013, para. 3)."

Bray states that this militia was not an institution of government, although this militia did later PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 18 seek recognition from the colonial government. He further states that it was not simply a group of individuals with guns. Rather, Bray states that this was a "militia of association," and became a militia "when they talked among themselves, agreed on rules and a shared purpose, and signed a mutual contract (Bray, 2013, para. 4)."

Bray offers another example of the unique nature of early militia when he discusses research that was conducted by the historian, Steven Rosswurm. Rosswurm described the negotiations between Pennsylvania's Revolutionary government and the ordinary men who served as enlisted privates in the state militia. These privates formed a "committee of privates" to present to the Revolutionary government the specific terms under which they would perform armed service. It was often that case at that point in history that government didn't just command the members of the militia; governments and communities talked, bargained and came to agreements. Individuals were both free to act and responsible to one another for their actions, in a constantly debated balance between government control and oversight and the sovereignty of the citizens (Bray, 2013, para. 9). It is interesting to note that even when a militia had selected its leaders, actions of the militia were often based on collaboration and agreement between the commander and the soldiers of the militia, rather than specifically upon the orders of the commander. Bray offers an example of this in a discussion of the Battle of Lexington. He states that on April 19, 1775, the militiamen of Lexington, Massachusetts, met with their commander,

Captain Parker. He greeted them as "neighbors, kinsmen, and friends," and they held a discussion about what they were going to do about the British troops who were enroute to their town (Bray, 2013, para. 8). It essence, the men and their commander held a town hall meeting ahead of battle to talk about how they were going to proceed. These cases certainly support the notion that the individual played an important role in the concept of the militia of that period. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 19

Additional insight into the importance of the individual as a militiaman can be found from examining the relevant sections of the constitutions of the 13 original states that were established around the time of the creation of the United States. The Constitution of the State of

Vermont, passed on July 8, 1777, contains a specific clause regarding the militia and the individuals serving in the militia. Chapter 1, Section XV states (The Avalon Project:

Constitution of Vermont, 1777):

"That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."

This section implies several things. First, there was obviously a distrust of the concept of a standing army. Second, that the right to bear arms is an individual right that people have to defend themselves. Third, that even though the right to bear arms is an individual one, and that the right of self defense has been established, it is also implied that the citizens have an obligation to come to the defense of the state when called upon, thus establishing the role of individual citizens also serving as members of the state militia.

In the Constitution of the State of New Jersey, passed on July 2, 1776, the manner in which the militia is described is different, but the relevance of the individual in the militia is indirectly stated, nonetheless. In Section X, it states that "captains, and all other inferior officers of the militia, shall be chosen by the companies, in the respective counties," but that field grade and general officers are appointed by the General Assembly (The Avalon Project: Constitution of New Jersey, 1776)." The constitution does not make a claim to power over how the companies at the county level or organized, nor on how their leaders are selected. The implication then is that this power is reserved to the citizens who filled the ranks of, and serve in, the local company. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 20

The State of Vermont obtained wording regarding the issue of the right to bear arms and the nature of defense of the individual and the state for its constitution from the Commonwealth of Pennsylvania. In Section XIII of the Pennsylvania Constitution, passed on September 28,

1776, it states that (The Avalon Project: Constitution of Pennsylvania, 1776):

"The people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power."

Similar language exists regarding the appointment of the executive as the Commander-In-Chief; however, a significant difference in how officers were appointed existed in Pennsylvania from the other two constitutions described in this section. In Section V of the Pennsylvania

Constitution, the legislature preserved to the people "the right of choosing their colonels and all commissioned officers under that rank (The Avalon Project: Constitution of Pennsylvania,

1776). The importance of the individual in service to the state through service in the militia is once again implied, along with the right of individuals serving in the militia to choose their leaders. Further, the distrust of a standing army was once again emphasized.

The distrust of a standing army was well founded. Prior to the Revolutionary War, the

British Army was used to strictly, and sometimes brutally, enforce the laws of the Monarch and to oppress the colonists. The Battle of Lexington was a result of an attempt by the British army to seize a large supply of gunpowder and shot stored in Concord and to arrest rebel leaders

Samuel Adams and John Hancock (Brinkley, 2007, p. 123).

The issue of federal control of the militia and the concept of a standing federal army came to a head during the ratification period of the United States Constitution. Article 1, Section

8 contained two controversial clauses. The first, Clause 12, granted Congress the authority to raise a standing army, but it could not appropriate funds for a period of more than two years. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 21

Clause 16 stated as follows:

"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 (Transcript of the Constitution of the United States, 1787);"

There were two main political factions of that day, the Federalists and the Anti-Federalists. The

Federalists were advocates of a strong federal government, and as such, were strong supporters of the federal government having the authority to raise a standing army and to be able to assert control over the militia forces of the states when needed. The Anti-Federalists were advocates of a weaker federal government and were concerned that if the federal government had a significant level of control over the state militia, the states and its citizens would be unable to defend themselves against a tyrannical federal government and could be disarmed.

The argument in favor of federal oversight and regulatory control of the militia can be found in The Federalist Papers. In The Federalist No. 29, Alexander Hamilton makes several points about the benefit of federal oversight of the militia. First, he states that uniformity in training and discipline would allow the militia to be more proficient; further, he states that this uniformity and discipline would serve the militia better if conducted under the auspices of the federal government (Hamilton, 1788, para. 1). He also make note in the paragraph that even though the training and discipline would be governed by the federal government, the appointment of officers and the implementation of training would be reserved to the states. Later in this document, he discusses a standing army versus federal oversight of the militia. He states that if the federal government has oversight of the militia, and would be able to control it when called into federal service, this would reduce the need for a standing army and, if a standing army was established, it would be of such a small size as it would lack the power of the PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 22 combined forces of the militia (Hamilton, 1788, para. 2).

Hamilton also addresses the issue of a tyrannical use of an army or the militia against the citizens by the federal government and the individual nature of the militia. He states, "if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens (Hamilton, 1788, para. 7)." This statement can be interpreted to mean that an armed citizenry, trained in militia service, would be the biggest discouragement to tyrannical behavior by the government. Hamilton goes on to ask:

"Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS (Hamilton, 1788, para. 9)?"

In effect, Hamilton asks if the nation should be afraid of its own citizens, especially when the loyal of the citizens is to the state by virtue of the militia leaders being appointed by the states.

In the Federalist No. 46, James Madison continues with the argument that fear of a tyrannical federal government is unwarranted. He states that even if individuals were to assume control of the federal government who possessed such tyrannical designs, they would only be able to raise a standing army of approximately 25,000 to 30,000 troops at most. Madison states that opposing this force would be, "a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence

(Madison, 1788, para. 8)." PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 23

The Anti-Federalists were just as passionate in their beliefs as were the Federalists. Led by such prominent citizens as Thomas Jefferson, Patrick Henry, Thomas Paine, and George

Mason, they were strongly opposed to a strong federal government and were opposed to federal control of the militia. They were also strong believers in individual rights. To counter the arguments contained in the Federalist papers, they published The Anti-Federalist Papers in various newspapers in the United States. In The Anti-Federalist Paper No. 28, the unsigned author expresses a concern that under the proposed constitution the federal government could disarm the citizens of the United States. The author states, "Tyrants have never placed any confidence on a militia composed of freemen (The Anti-Federalist Papers No. 28, 1788)." He goes on further to opine, "for what avails this right if they at their pleasure may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficiently numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties, however they might be encroached upon by Congress (The Anti-Federalist Papers No.

28, 1788)?"

In the Anti-Federalist No. 29, the unsigned author expresses what he believes are two significant issues. First, he questions the need for the federal government to create a standing army, except in time of actual war, and whether the militia is sufficient for the nation's defense?

He writes, "Had we a standing army when the British invaded our peaceful shores? Was it a standing army that gained the battles of Lexington and Bunker Hill, and took the ill-fated

Burgoyne? Is not a well- regulated militia sufficient for every purpose of internal defense (The

Anti-Federalist Papers No. 29, 1787)?" He further expresses concern about the federal government having control over the militia and the potential that existed for abuse of those citizens who were serving as a part of the militia. Regarding this, he states, "First, the personal PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 24 liberty of every man, probably from sixteen to sixty years of age, may be destroyed by the power

Congress have (sic) in organizing and governing of the militia. As militia they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind; and to death itself, by the sentence of a court martial (The Anti-Federalist Papers No. 29, 1787)."

As the reader can see, these arguments were significant and the failure to resolve them risked the failure of the ratification of the Constitution. The solution to this dilemma was the creation of a Bill of Rights. While the Federalists did not see the need for a Bill of Rights, the

Anti-Federalists seized upon the Federalists' reluctance to incorporate a Bill of Rights and attacked almost every clause of the Constitution as, "a tyrannical mandate subject to no constraints (Raffin, 2010, para. 2)."

The proposed Second Amendment, as written by James Madison, was based upon verbiage used by George Mason during the 1788 Virginia Ratification Convention. Mason proposed an amendment calling for a "well-regulated militia," taken from Article 13 of the

Virginia Declaration of Rights, the purpose of which being that the well-regulated militia would serve as a defense against a standing army, and wording from the Massachusetts’ Declaration of

Rights which stated that the people have a right to keep and to bear arms (Raffin, 2010, para. 2).

To offer further evidence that the militia is the citizenry, the Pennsylvania Ratification

Convention provides additional information to that effect. During this convention, the Anti-

Federalists offered a minority bill of rights, which was later titled “Reasons of Dissent.” This document included wording that stated, “that the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 25 danger of public injury from individuals. (Raffin, 2010, para. 8).” This document indicated that the right to bear arms was an individual one and that one of the purposes of bearing arms is to defend the state.

We can look to modern precedent for determining that the militia is "the people," by examining the decision of the United States Supreme Count in the case of the District of

Columbia, et. al. v. Heller, which was decided on June 26, 2008. Associate Justice Antonin

Scalia wrote the majority opinion of the Court.

In his opinion, Justice Scalia began by clearly stating that based upon the facts and circumstances of this case, the Court maintained a strong presumption that the Second

Amendment right was not associated with specific service in a militia. Rather, that it is an individual right that belongs to all American citizens (Scalia, 2008, p. 7).

Scalia addressed the concept of a citizen militia in his opinion. He stated that during the period of the Revolutionary War and drafting of our constitution, it was understood by individuals of all political persuasions that the Second Amendment helped to secure the concept of a citizen militia, which might be necessary should an oppressive power assume control of the government and utilize military force against the citizens if the constitutional order of the nation broke down. The threat that this type of government might destroy the citizens' militia by seizing their arms was the reason that the right to keep and bear arms was written into the new constitution, notwithstanding the disagreement between the Federalists and the Anti-Federalists on the necessity of the amendment (Scalia, 2008, p. 31).

Scalia built upon this argument by citing sections of J. Pomeroy's 1868 scholarly work,

An Introduction to the Constitutional Law of the United States . Pomeroy stated that, "[The purpose of the Second Amendment is] to secure a well-armed militia. But a militia would be PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 26 useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms. The clause is analogous to the one securing the freedom of speech and of the press.

Freedom, not license, is secured; the fair use, not the libelous abuse, is protected (Scalia, 2008, p.

45).”

Through his reasoning in this opinion, Scalia expounded upon the concept that the

Second Amendment is an individual right. He further acknowledged through the discussion of the citizen militia that the militia is "the people," and that the militia is the last defense against tyrannical government and a breakdown of law and order (Scalia, 2008, p. 27).

Through the examination of the historical records and events, through the examination of the political thought of the Founding Fathers, and through examination of the documents of the

Revolutionary War period, it appears logical to arrive at certain conclusions. Given that

Madison used wording from these collective sources to create the Second Amendment, the evidence would indicate that the right to bear arms is an individual one, used for the purposes of defense of self and of the state; the militia is made up of the citizenry and that the citizens, or

"the people" are the ultimate defense against tyrannical government; and that the government, both state and federal, has a vested interest in the regulation and training of the militia and both share the use of the militia. This interpretation of the definition of the Second Amendment also appears to be supported in our contemporary time, through established case law.

The Well-Regulated Militia

Even though the colonial and early state militia were often formed and manned by PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 27 citizens, independent of an official military command structure, precedent was established early on that the states during the Revolutionary War period of our nation's history would have a responsibility toward the management of militia units in the state. In May of 1776, the

Continental Congress passed a resolution that the colonies should establish governments where the authority of the government was derived from the people and not the government (Miller,

1979, p. 482). It was these early constitutions that were ratified after the Declaration of

Independence that established the legal mechanism for state oversight and control of the militia.

One example of this relationship between the militia and the state, and the foundation of state control and regulation of the militia can be found in the 1777 Constitution for the State of

Vermont, which states in Chapter II, Section 5:

"The freemen of this Commonwealth, and their sons, shall be trained and armed for its defence (sic), under such regulations, restrictions and exceptions, as the general assembly shall, by law, direct; preserving always to the people, the right of choosing their colonels of militia, and all commissioned officers under that rank, in such manner, and as often, as by the said laws shall be directed (The Avalon Project: Constitution of Vermont, 1777)."

This section also re-emphasizes the importance of the individual in service to the militia and the importance of the right of the individuals serving in the militia to select their leaders.

Another example of this early control of the militia by the state can be found in Section

VIII, of the Constitution of New Jersey, ratified in 1776, which states that the Governor of the state shall "act as captain-general and commander in chief of all the militias and other military force in this Colony (The Avalon Project: Constitution of New Jersey, 1776)." It is interesting to note the difference between Vermont and New Jersey in how militia officers are selected. In the

New Jersey Constitution, it stated that, "captains, and all other inferior officers of the militia, shall be chosen by the companies, in the respective counties; but field and general officers, by the Council and Assembly (The Avalon Project: Constitution of New Jersey, 1776)." PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 28

This type of state regulation of the militia could be consistently found in the early state constitutions.

While these militia forces were primarily under colonial and state control, the federal government also established mechanisms for control of the militia, even before the Declaration of Independence. In May of 1775, the Continental Congress took two specific actions in this regard. First, the Continental Congress commandeered the services of the Massachusetts militia into the service of the Continental Army and second, the Congress resolved to raise a land Army, of which many of the soldiers were members of state militia (Miller, 1979, p. 419).

After the creation of the United States, the federal government continued to exert its authority over militia forces belonging to the states. Prior to the adoption of the Constitution,

Article VI of the Articles of Confederation required that each state maintain a militia and provide for necessary supplies and equipment (Transcript of Articles of Confederation, 1777). Article

VII further stated that when a state raised land forces, all officers at, and under, the rank of

Colonel would be appointed by the state, thus implying that any General Officers would be appointed by the Congress and that there would be federal command of state militia forces when these forces were called into the service of the national government (Transcript of Articles of

Confederation, 1777). This practice had already been established when the Continental Congress appointed General George Washington as Commander-In-Chief of the Continental Army on

June 19, 1775 (Primary Documents in American History, 2014). With the ratification of the

United States Constitution, the Congress maintained the right to mobilize militia forces into the service of the federal government pursuant to Article 1, Section 8, and the President was designated the Commander-In-Chief of the Army and Navy, and of the Militia, pursuant to

Article II, Section 2 of the Constitution (Transcript of the Constitution of the United States - PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 29

Official Text, 1787).

Federal regulation of the state militia continued with the passage of the Militia Act of

1792. This act was unique, as it was the first federal law to not only give the President statutory authority over the militia, and which defined the procedure to call forth the militia, but it also specified who was considered to be a member of the militia and how they were to be armed and equipped. This act stated in part:

"That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty- five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non- commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred (sic) and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack (The Militia Act of 1792, 1792)."

The act further defined who was exempt from militia service, how the militia was to be organized, that Adjutants General were to be appointed in each state, and that members of the militia were subject to rules of discipline passed by the Congress in 1779 (The Militia Act of

1792, 1792). The Militia Act of 1792 was eventually replaced by the Dick Act of 1903, which provided for the creation of the National Guard from the previous militia structure. The National

Guard is both the state militia and it is the primary military reserve force in the United States.

The Dick Act was codified into Title 10 of the United States Code. This Act will be discussed PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 30 further in the next section of this paper.

The regulation of the militia in its state and federal status is defined in both the constitutions of the several states and of the United States, and in federal and state statute as well. An example of how a state constitution defines the role of the militia in a state can be found in Article 7-12 of the West Virginia Constitution, which states, " The governor shall be commander-in-chief of the military forces of the state, (except when they shall be called into the service of the United States) and may call out the same to execute the laws, suppress insurrection and repel invasion (West Virginia Constitution, 2014)." State law defines the organization of the militia in each state and covers a variety of state specific issues, such as eligibility, organization, equipment, and stores. Military justice is covered in the statutes of most state legal codes as well. Further, the militia is governed by various regulations issued by the United States Army and the National Guard Bureau, along with state regulations promulgated at various levels of the chain of command, under the authority of the state's Governor and Adjutant General.

The National Guard

The National Guard is the primary state and federal militia organization in the United

States military structure. Although it was not designated as the National Guard prior to 1903, the

Guard traces its establishment and linage to the formation of colonial militia in 1636 as a "citizen force organized to protect families and towns from hostile attacks (National Guard: Legacy, n.d.)." These colonial and state militia forces, prior to the formal establishment of the National

Guard, continued to play an important role in meeting the challenges of our nation's military conflicts through the 18th and 19th century and into the 20th century, as the United States did not maintain any standing land army until the War of 1812, when it established a small standing army (Legal Basis for the National Guard, n.d.). PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 31

In 1903, Congress officially established the National Guard as the primary military reserve force through the passage of the Dick Act. The Dick Act replaced the Militia Act of

1792, and subsequently passed laws that made modifications to that law (Legal Basis for the

National Guard, n.d.). The National Defense Act of 1916 gave the President of the United States the specific power to call the National Guard into federal service during a war or national emergency and made the use of the term "National Guard" mandatory as the official designation of the state militia (Legal Basis for the National Guard, n.d.). The National Guard Status Act of

1933 designated the National Guard as a component of the Army. If also created a new reserve component, the National Guard of the United States. This law stated that a member of the

National Guard could only serve in one status as a time; in state status as a member of the state

National Guard, or in federal status as a member of the National Guard of the United States, when ordered to federal service by the President under an emergency declaration passed by the

Congress (Legal Basis for the National Guard, n.d.). In 1973, the National Guard, along with all other active and reserve components of the armed forces, was integrated into a total force concept. The leadership of the National Guard states that this concept establishes the founding fathers designs for a small standing army supported by the militia (Legal Basis for the National

Guard, n.d.).

State Defense Forces

In 1916, President Woodrow Wilson mobilized a significant portion of the National

Guard to serve along the Mexican border. He then mobilized much of the remaining National

Guard forces to serve in the Armed Forces with the involvement of the United States in World

War I (Tulenko, et.al., 1981, p. 1). However, this mass mobilization exposed a significant flaw in the Dick Act that was not permanently fixed until after the conclusion of the Korean War. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 32

This flaw involved states that had their National Guard forces federalized being unable to defend themselves in the absence of their National Guard.

During World War I, and later on during World War II, critical infrastructure was left unprotected from potential enemy sabotage, in which a serious risk existed during those wars. In addition, states lacked resources to address incidents of mass civil disorder, disaster incidents, or incidents where a declared emergency existed. This lack of protection was due to the fact that according to Article 1, Section 10 of the United States Constitution (Transcript of the

Constitution of the United States, 1787), states were specifically prohibited from keeping troops during times of peace (war was not declared by Congress against Germany until 1917) and the states has no opportunity to engage in planning for their protection ahead of the war declaration and federalization of National Guard troops. After the National Guard troops were activated, many communities formed "Home Defense Committees," or "Home Defense Leagues," whose purpose was to supplement local police and fire services (Tulenko, et.al., 1981, p. 7). In a number of states, political officials who were concerned about security of facilities within their states submitted requests to the Department of War for military personnel to provide security for critical state infrastructure but were denied (Tulenko, et.al., 1981, p. 9). Many of these officials,

seeing the results of what local communities had undertaken, made efforts to pass legislation

authorizing the creation of home guard units in their states. Because of the constitutional issues

about states keeping troops that was discussed earlier, the legality of these home guard units was

questionable until the passage of the Home Guard Act of 1917, which provides a semblance of

legal sanction for these forces and provided a means of modest federal support in the way of

arms and equipment, such as the war effort allowed (Tulenko, et.al., 1981, p. 10).

These problems with home guard, or state guard forces remained through World War II PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 33 and the Korean War. The federal government utilized a band-aid approach to dealing with the security problem in the states, and only provided temporary legal and material support. During and after the Korean conflict, the issue of the creation of state guard units arose and Congress passed legislation allowing the states to temporarily establish state guard units, but the Army leadership established temporary National Guard units to assist with internal security functions within the states, cutting short the state guard effort. According to Stein, it was possible that due

to the Army believing that the temporary National Guard concept would permanently stop the

state guard movement, it dropped its prior objections to state guard forces, provided that no

federal funds were used to support these forces and that active military personnel, reserve

military personnel, and National Guard personnel were prohibited from serving in state guard

forces (Stein, 1984, p. 10). Because the Army dropped its objection to the establishment of state

guard forces, in 1956, Congress passed 32 USC 109, which permitted, but did not require, each

state, the District of Columbia, Puerto Rico, Guam, and the Virgin Islands to form state military

forces. 32 USC 109 reads as follows:

"(a) In time of peace, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may maintain no troops other than those of its National Guard and defense forces authorized by subsection (c). (b) Nothing in this title limits the right of a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands to use its National Guard or its defense forces authorized by subsection (c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary. (c) In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces. (d) A member of a defense force established under subsection (c) is not, because of that membership, exempt from service in the armed forces, nor is he entitled to pay, allowances, subsistence, transportation, or medical care or treatment, from funds of the United States. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 34

(e) A person may not become a member of a defense force established under subsection (c) if he is a member of a reserve component of the armed forces (USC Title 32, 1956)."

While every state and territory (with the exception of American Samoa and the Northern

Mariana Islands) is authorized to organize and maintain, currently 20 states, in fact, do so. In line with 32 USC 109, the states that maintain these forces do so at their own expense and these forces are exclusively under their control at this point in time. In 2005, there were approximately

14,000 men and women serving as soldiers, sailors, and airmen in state defense forces in 22 states nationwide (Zuckerman, et.al., 2002, p. 2). Figure 1 lists the 20 states that currently maintain state defense forces and what the name of each force is.

Figure 1. States With Active State Defense Forces and Naval Militia State State Defense Force Naval Militia Alaska Alaska State Defense Force California California State Military Reserve Connecticut Governor's Foot and Horse Guard Units Georgia Georgia State Defense Force Indiana Indiana Guard Reserve Maryland Maryland State Defense Force Massachusetts Massachusetts State Defense Force Michigan Michigan Volunteer Defense Force Mississippi Mississippi State Guard New York New York Guard NY Naval Militia (Title 10) New Mexico New Mexico State Defense Force Ohio Ohio Military Reserve Ohio Naval Militia (Title 32) Oregon Oregon State Defense Force Puerto Rico Puerto Rico State Guard South Carolina South Caroline State Guard Tennessee Tennessee State Guard Texas Texas State Guard Texas State Guard Maritime Regiment (Title 32) PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 35

Vermont Vermont State Guard Virginia Virginia Defense Force Washington Washington State Guard Figure 1. This table lists the states and territories that currently have active state defense forces and state naval militia. In the naval militia column, the respective force is designated as a Title 10 or Title 32 force, in line with the unique structure of naval militia. This information was obtained from the website of State Guard Association of the United States - Active Forces; the website of the New York Naval Militia, and the website of the Texas State Guard.

State defense forces carry out a variety of roles and missions, as defined by the Governor

and Adjutant General of the respective states. Traditionally, state defense forces have been

organized as a light infantry, or military police units that were designed to function in the Cold

War era to respond to threats of invasion or to threats of civil unrest (Zuckerman, et.al., 2012, p.

1). As the nation has moved from the Cold War era, this model is less relevant to the needs of

the states. Therefore, while this model has been retained as a statutory mission in many cases,

state defense forces have been reorganized and their missions have been redefined to meet the

needs of states in this contemporary era.

Missions related to homeland security and emergency management have become

important functions that have been assigned to many state defense forces. In the author's home

state, the Ohio Military Reserve, while maintaining a statutory constabulary and security

mission, has also been assigned to lead the state military response to requests for assistance

involving Emergency Support Function 6 (mass care) and Emergency Support Function 7

(logistic and warehouse operations), as defined in the Federal Emergency Management Agency's

National Incident Management System. Another mission that state defense forces are able to

assume involves assisting with emergency management planning and maintaining the

functioning of appropriate command, control, and communications facilities, in support of their

National Guard forces, or even in support of federal forces, if required (Tulak, et.al., 2012, p. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 36

140). An example of this type of support is the South Carolina State Guard being tasked to operate state emergency communications vehicles, which maintain a variety of communications capability and interoperability, including satellite communications capability (Tulak, et.al., 2012, p. 140). State defense forces have the capability to provide additional types of mission support to the National Guard, federal forces, and the Federal Emergency Management Agency as well.

Some of these support services may include legal support, chaplain support, administrative support, food service support, medical support, and search and rescue support.

State defense forces and state naval militia have played a quiet role in support of National

Guard and federal forces in man-made or natural emergencies or disasters during the past 30 years. Examples of state defense force and naval militia response include the Alaska Naval

Militia mission during the Exxon Valdez oil spill recovery operation in 1989; the Tennessee

State Guard response to tornados in the state in 1993; and the response of the New York Guard and the New York Naval Militia to the crash of TWA Flight 800 into New York Harbor in 1996

(Tulak, et.al., 2012, p. 141).

Other state defense force responses have included the response to severe winter storms in

a number of states. Responding forces included the New York Guard, the Virginia State Defense

Force, the Oregon State Defense Force, and the Maryland Defense Force. In 2001 after the

terrorist attack on the World Trade Center, members of the New York Guard, New York Naval

Militia, and the New Jersey Naval Militia assisted with transportation duties, harbor security,

medical support, chaplain support and land security functions. During Operation Noble Eagle,

which was a coastal patrol and maritime homeland security operation around the United States,

the Alaska State Defense Force provided critical infrastructure protection of the Alaskan oil

pipeline. Finally, in the aftermath of Hurricane Katrina, state defense forces from eight states, PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 37 including Texas, Mississippi, Virginia, Georgia, Alabama, Tennessee, Maryland, and Louisiana performed a variety of support missions, including shelter operations, medical support, search and rescue, law enforcement operations, and communications support among other duties

Zuckerman, et.al., 2012, p. 3).

State defense forces have two distinct advantages in responding to homeland security and emergency management missions. First, since these forces are exclusively under the control of the state, they are generally able to be activated and respond more quickly than federal forces, or even National Guard forces in many cases. Second, under the Posse Comitatus Act, federal military forces and the National Guard, when in federalized status, are prohibited from generally engaging in domestic law enforcement activities. However, since state defense forces are exclusively state entities, they are under no such restriction and are able to provide law enforcement and constabulary support to state and local law enforcement personnel, if so directed by the Governor and the Adjutant General (Zuckerman, et.al., 2012, p. 3).

Naval Militia

Naval Militias are another type of state defense force that provide maritime support to the state's military forces. Naval militias are the predecessors of the United States Naval Reserve.

In 1775, at the time of the creation of the Navy by the Continental Congress, each of the original colonies, and later states, possessed armed naval vessels under the control of the states. Even though each state's naval forces individually did not match that of the Continental Navy, combined they more that exceeded the total number of federally controlled vessels of war

(Paullin, 1906, p. 315). The state navy of Massachusetts was the largest of the state forces and was the only one to have ocean-going capability. These forces were primarily used in a defensive capacity, protecting ports and shipping routes, and protecting trade vessels (Paullin, PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 38

1906, p. 317). The state forces coordinated with the national naval forces and engaged in mutual support and loans of vessels and equipment.

Even though they are state forces, because of their history, naval militias have a unique status of being able to function in both a federal (Title 10) status and a state (Title 32) status, and unlike land state defense forces, if the naval militia is a Title 10 force it can receive federal equipment and support. What allows a naval militia to function under Title 10 involves the composition of the militia. Under Title 10, a naval militia is considered a part of the Organized

Militia of the United States [10 USC 311, 1956, para. (b)(1)]. For it to achieve this status, at least 95 percent of the members of the militia are required to be active Navy and/or Marine

Corps reservists and the militia is required to operated under the standards established by the

Department of the Navy (Availability of Material for Naval Militia, 2006, para 1). Currently, there is only one Title 10 naval militia active in the United States, and that is the New York

Naval Militia. The mission of the New York Naval Militia is as follows:

"As part of the NY State Military Forces, the NY Naval Militia is trained, organized, and equipped for Maritime Domain Operations in the water of New York State. Elements of the Mission: 1. Provide individuals and or detachments for service with National Guard, and or other federal, state, or local municipal agencies, as directed. 2. Develop in coordination with DMNA: Naval doctrine, tactics, and equipment employed in the support of aid to Civilian Authority. 3. Perform such duties as The Adjutant General may direct (New York Naval Militia Mission, n.d.)."

There currently is one other operational naval militia in the United States and that is the

Ohio Naval Militia, although the Texas State Guard has a maritime regiment as a part of its organizational structure. Unlike its counterpart in New York, the Ohio Naval Militia is a Title 32 state defense force. As a Title 32 force, it is prohibited from having Naval or Marine Corps reservists serving in its ranks and it is strictly state funded and equipped. The mission of the PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 39

Ohio Naval Militia is as follows:

"The ONM will assist in natural disasters or other emergencies, as called upon by the governor or the Adjutant General. The ONM is here, and ready to Serve the citizens of Ohio."

"The ONM's active mission is to patrol the government impact area off Camp Perry, in the waters of Lake Erie. It is a live-fire area that requires keeping pleasure boaters and fishermen from entering. By patrolling the impact area, the ONM provides support for the Ohio National Guard and other military units as they perform weapons qualifications prior to deploying overseas to fight the war on terrorism (Ohio Naval Militia: Mission, n.d.)."

Model Public Policy For Organization Of The Militia

It has been demonstrated in the previous sections of this paper that a strong argument can be made that the various militias are "the people," or the citizens of our states and territories. It has also been demonstrated that there is an organized militia and unorganized militia under both federal and state law, and it has been demonstrated that both the federal government and the state and territorial governments play an important role in meeting the "well-regulated" concept established in the Second Amendment. However, it can also be demonstrated that there are significant inconsistencies in how militia are legally structured, if they are structured at all, how they are regulated, and who can actually serve as a member of the militia at the federal and state level. It is with this in mind that this paper examines both similarities and differences between the states and the federal government and work to establish a model set of policies that can be used for the organization and operation of both the National Guard and state defense forces.

Regarding the National Guard, it bears repeating that when the National Guard is in Title

10, or federalized status, it is subject to the rules and regulations of the United States Army and

Air Force, and it is incorporated into the Army and Air Force command structure. Therefore, in this status there will only be minimal differences between the Guard and the Army and Air

Force, thus integration issues are minimal as well. It is in state status where there are PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 40 inconsistencies in regulation and discipline. First, let us examine the issue of military discipline.

At the federal level, the United States Armed Forces, the Armed Forces Reserves, and the

federalized National Guard are subject to the Uniformed Code of Military Justice, which is

federal military law. When the National Guard is in state, or Title 32, status, it is not subject to

federal military law, but rather it is subject to state law. As can be observed in Figure 2, of the

seven states listed, four of the states have their own state code of military justice. Florida has

adopted the federal Uniformed Code of Military Justice for state use, and New Jersey does not

employ either.

Figure 2. State Military Justice Systems Yes (Chapter 5924: Code of Military Ohio Justice, 1985) Yes (Chapter 432, Texas Code of Military Texas Justice, 1987) Yes (Title 37-B, Chapter 5, Maine Code Maine of Military Justice, Section 401, 1983) Yes (Chapter 15, Article 1E: Code of West Virginia Military Justice, 2010) New Jersey No Yes (Chapter 38.38, RCW: Washington Washington Code of Military Justice, 2009) Adopted UCMJ for state purposes (250.25: Florida Courts Martial, 2014) Figure 2. This chart lists the states that were selected for the sampling for the paper and whether or not each state has a state code of military justice. The information was obtained from state statutes listed on each state's official website.

In the case of New Jersey, this lack of a military code of justice may be problematic. In the military, there are certain criminal offenses that are military specific. Some of these offenses include desertion, missing movement, being absent without leave, engaging in conduct unbecoming an officer or non-commissioned officer, or insubordination, to name a few. Without a state code of military justice, these kinds of military offenses change from criminal offenses to PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 41 administrative employment actions.

It is recommended that each state and territory that maintains a National Guard force adopt a state code of military justice modeled after the Uniformed Code of Military Justice. By using the Uniformed Code of Military Justice as a model, the states and territories would be able to provide a consistent disciplinary structure for their militia forces. The statutes should be organized in a manner consistent with the state or territory's statute numbering scheme. In additional to statutes modeled after the Uniformed Code of Military Justice, additional statutes can be added as needed that are, by necessity, state specific. This state military code of justice would be applicable to state defense forces and naval militia as well.

Another inconsistency exists regarding militia service, and that is the age at which one can either join the organized militia or would be considered a member of the unorganized militia.

A further point of confusion is the definition of the organized and unorganized militia from state to state. Title 10, Section 311 defines the organized and unorganized militia as follows:

"(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are- (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia (10 USC 311, 1956)."

It is again interesting to note that the unorganized militia is your average individual citizens, or

"the people," who are qualified for service in the organized militia but are not affiliated with it.

It is evident from this section of the United States Code that it pertains specifically to the

National Guard and Title 10 Naval Militia, and not state defense forces. Therefore, this has led to inconsistency in service age and many states have expanded upon the definition of organized PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 42 and unorganized militia, to include both National Guard forces and state defense forces, and to include all appropriate citizens of a state as members of the unorganized militia. For example, in

West Virginia, the organized militia meets the federal definition of the organized militia (West

Virginia Code - Chapter 15, Public Safety, 2014). However, it does not include members of the

West Virginia State Guard, if there was an active state guard in that state. On the other hand, in the State of Ohio, the organized militia consists of citizens between 17 and 67, not permanently handicapped, who are members of the Ohio National Guard, the Ohio Military Reserve, and the

Ohio Naval Militia (Chapter 5923: Organized Militia, 1997). The unorganized militia consists of the same description of persons, but who are not members of the organized militia (Chapter

5923: Organized Militia, 1997). These kinds of state specific definitions have created a variety of age provisions for entry into militia service, as demonstrated in Figure 3 below.

Figure 3. Age for Militia Service Under State Law Ohio 17 to 67 (O.R.C 5923.01) Texas 18 to 70 (Section 432, Subchapter G) 18 to 45, unless exempted by Governor Maine (§225, para. 1) No provision for age in state law for the West Virginia WV State Guard. 17 to 45 for the National Guard (§15-1-3) New Jersey 17 to 45 (§38A:1-2) Able bodied persons over the age of 18 Washington (RCW 38.04.030)

All able bodied citizens of the state Florida (§250.02) Figure 3. This chart lists the states that were selected for the sampling for the paper and the age for service in the militia under state law. This information was obtained from state statutes listed on each state's official website.

To provide for consistency in eligibility for service regarding age, it is recommended that the states and territories adopt a policy that defines the organized militia as being any person, not PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 43 permanently handicapped, between the age of 17 and 47, who is a member of the National

Guard, a state defense force, or a naval militia. In addition, it is recommended that this model policy mandates retirement from the militia at age 67. This model policy should provide for a waiver that would allow one year of prior military service for one year of age over the age of 47, up to the age of 55. This policy would allow the opportunity for a member of the National

Guard, a state defense force, or a naval militia to serve a minimum of 20 years in the militia.

The 20-year threshold becomes important because this is the point that any military retirement benefits, particularly for the National Guard, would become available. Also, 67 is the age at which Social Security pays at the full retirement rate for those born after 1960 (Social Security, n.d.). Finally, many states have established in state law that organizations, fraternities, clubs, or other groups are prohibited from collectively joining a state militia. This policy protects the integrity of the militia by prohibiting groups that may be subversive in nature from becoming part of a legitimate state entity. Many states already have this policy written into their state law.

It is recommended that those who do not utilize this policy should do so.

A model policy that the states and territories could implement for their National Guard, state defense forces, and naval militia would be to provide certain benefits that would serve to provide incentives for not only joining, but also remaining in the respective state military forces.

Some of these benefits might include:

• State paid term life insurance.

• Specialty license plates for military members.

• Free tuition, or tuition discounts at state colleges and universities.

• Employee discounts offered to other state employees for various goods and services.

• State tax deductions or credits for military membership to compensate for expenses PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 44

incurred as a result of military membership.

These are just a few of the benefits that states could provide their National Guard and state defense force members.

The federal government does provide certain types of military benefits to members of the

National Guard. However, the federal government could play a major role in developing the professionalism and readiness of state defense forces at a minimal cost to the taxpayer by adopting policies that support the activities of state defense forces and Title 32 naval militia forces. This support could be provided in two significant areas. First, the federal government could make surplus military uniforms, equipment, and vehicle available to state defense forces that would otherwise be destroyed or sold to the public. This equipment and uniforms could then be issued to state defense force units and personnel, thus reducing the cost of serving to the member. Second, the federal military forces could be given permission to make training opportunities and resources available to state defense force members. Third, federal military training facilities should be made available for use by state defense forces, with the understanding that use of any facilities cannot detract from the training of federal military forces.

The next model policy area that should be addressed is whether states and territories should activate and maintain state defense forces and naval militia. Carafano states that state defense forces can serve as low cost force multipliers that have the ability to respond quickly to emergency situations (Zuckerman, et.al., 2012, p. 1). Tulak, Kraft, and Silbaugh suggest that state defense forces are an under-used and under-resourced force that can play a significant role in the realm of homeland security in support of NORTHCOM, the Federal Emergency

Management Agency, and their state respective National Guard forces (Tulak, Kraft, & Silbaugh,

2003, p. 134). In examining the sampling of states selected for this paper, Figure 4 demonstrates PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 45 that while all of these states are permitted to have state defense forces under USC 32 Section 109

(c), only six of the seven states have provisions under state law that allow them to form state defense forces.

Figure 4. Provision in State Law for a State Defense Force and Whether Force is Active Provision for SDF Active SDF Ohio Yes Yes Texas Yes Yes Maine Yes No West Virginia Yes No New Jersey No No Washington Yes Yes Florida Yes No Figure 4. This table provides information on whether the states in the sampling have provisions in state law for the creation of a state defense force and whether they have active forces currently operating. The provision in law information has been obtained from state statutes found on the official website of each state. Information of active state defense forces has been obtained from the State Guard Association of the United States - Active Forces web page.

Further, of the seven states in the sampling, only three actually have active state defense forces as of the time of the writing of this thesis.

With this fact in mind, it is recommended that the federal government establish a policy that strongly encourages the states to activate state defense forces, and naval militia as appropriate. Further, it is recommended that as a part of this policy, the federal government provide incentives to the states to establish these forces, make resources available to them, and direct the appropriate federal homeland security military commands to incorporate state defense forces and naval militia into their planning and exercises. As far back as 1984, it was recognized that state defense forces had the potential to play a very important role in the defense structure of the United States. Stein suggests that because of potential legal and logistical issues, it is important that there be a clear definition of potential missions for state defense forces. He also states that there be standardized logistical support and training established nationwide for state PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 46 defense forces by the Department of Defense and the National Guard Bureau (Stein, 1984, p.

16). What was true then is still true today.

Conclusions and Basis for Further Research

In summary, the author's first hypothesis is that the militia is "the people," or more specifically, the militia is citizens who group themselves into military units, organizations, and associations to provide for the collective defense of the community, the state, and the nation.

The militia is not necessarily a creation, or instrument, of government, as was demonstrated by

Bray, although most militia sought a relationship with, and sanction by, the state government.

Further, while the states maintained a legal mechanism for calling the militia into service of the state, the militia was also able to act on it's own, as in the case of the Battle of Lexington and

Concord. The militia also served as the citizen's collective defense against a potentially tyrannical government. Justice Scalia described this concept in detail in the majority opinion in

District of Columbia, et.al. v. Heller. The author of this paper suggests that there is sufficient historical and contemporary evidence to state that this hypothesis is valid.

The concept of the "well-regulated" militia is well established, both in the historical and in the contemporary sense. This responsibility for regulation is easily found in the historical legal documents, including the state constitutions of the Revolutionary War period, the Articles of Confederation, and the Constitution of the United States. Several of the Founding Fathers weighed in on this matter in the period leading up to the ratification of the Constitution of the

United States, with the Federalist Papers being one source that highlighted their thoughts and opinions. This responsibility for regulation can also be found in laws such as the Militia Act of

1792, and its revisions through the 19th century, the Dick Act, which created the modern

National Guard, and federal and state statutes of this contemporary period of United States PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 47 history.

The militia concept and relevance was discussed in this paper through a discussion of the

National Guard, state defense forces, and naval militia, with a particular focus on the latter two as specific state controlled forces. Potential missions for state defense forces were examined, and it was recommended as a matter of model public policy that each state and territory provide for state defense forces under state law, activate them, and utilize them in overall support of state security and homeland security functions. Model policy was proposed pertaining to service eligibility, training and equipping of state defense forces, and integrating them into the planning for the national homeland security and defense structure, in support of the federal military forces,

National Guard forces, and federal and state emergency management forces.

While it may appear that issues regarding the militia are fairly stable, there are actually a number of issues and hypothetical questions involving the militia that may be appropriate for potential research by legal scholars and legal professionals. Potentially, these research issues could have serious political and social ramifications as well, particularly in the area of gun control policy. Examples of the questions and issues that may be subjects of additional scholarly and legal research include the following:

• If it were accepted that "the people" are the militia, would a state government (or the

federal government) have the authority to direct citizens who meet the requirements of

eligibility as members of the organized and unorganized militia to own weapons and to

specify what kind of must be owned, and provide for legal action against citizens who fail

to meet this requirement, unless they are legally exempted? Taking this issue to the next

logical step, would a state government (or the federal government) have the legal

authority to issue weapons to citizens who meet the requirement of eligibility for militia PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 48

service under state or federal law?

• Would a state government (or the federal government) have the authority to require

citizens who meet the requirements of eligibility for membership in the organized and

unorganized militia to attend any specific type of militia training and provide for some

nature of legal action for those citizens who don't, unless they are legally exempted?

• Heller v. the District of Columbia stated that the Second Amendment is an individual

right and that the militia is "the people," and as such, citizens are eligible to own weapons

if they are not subject to any other disability. However, both the historical and

contemporary interpretation of the Second Amendment provides both state governments

and the federal government with the authority to regulate the militia. Therefore, the

question arises that once an individual is no longer eligible for service with either the

organized militia or the unorganized militia, as defined under state and federal law, does

that citizen retain the right to possess firearms? In short, does the government have the

right to revoke, or restrict, Second Amendment rights to those individuals who are no

longer members of the legally defined militia, at either the state or federal level,

notwithstanding the Supreme Court determination that Second Amendment rights are not

tied into militia service?

• The Dick Act provides that the National Guard is the federally recognized militia, and as

such, when federalized under United States Code Title 10, can be incorporated into the

Army of the United States. Title 32 Section 109 (c) provides for the creation of state

defense forces, which in most cases are defined as militia under state law, and states that

those forces "may not be called, ordered, or drafted into the armed forces (USC Title 32,

1956)." However, Article 1, Section 8 of the United States Constitution allows for PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 49

Congress to "call forth the militia to execute the Laws of the Union (Transcript of the

Constitution of the United States - Official Text, 1787)." These two competing legal

issues then bear out two questions. The first question is whether Title 32 Section 109 (c)

is unconstitutional by stating that state defense forces, which most states legally define as

militia, cannot be called, ordered, or drafted into the armed forces. The second question

is whether state defense forces can be placed under federal control, pursuant to Article 1,

Section 8, without being called, ordered, or drafted into the armed forces. This concept

was briefly addressed, but not resolved by the United States Supreme Court in Perpich v.

Department of Defense. In his opinion for the unanimous court, Justice Stevens stated,

"It is true that the state defense forces 'may not be called, ordered, or drafted into the armed forces.' 32 U.S.C. 109(c). It is nonetheless possible that they are subject to call under 10 U.S.C. 331-333, which distinguish the "militia" from the "armed forces," and which appear to subject all portions of the "militia" - organized or not - to call if needed for the purposes specified in the Militia Clauses. (Stevens, 1990)."

In conclusion, the militia organizations that serve the United States of America, including

The National Guard, state defense forces, and naval militia will continue to serve as they have for over 375 years since colonial times. The challenge to the militia, particularly state defense forces and naval militia, will be to adapt to the ever-changing security environment and needs of the citizens of our nation, and to maintain their relevancy by redefining themselves as mission and service requirements change.

In addition to their National Guard, states and territories should strongly consider the establishment of state defense forces and naval militia. The federal government should also seek to improve the quality and professionalism of these forces by providing equipment and training resources, where they can be made available at no additional cost to the taxpayers. These forces should be fully integrated into homeland defense planning, so they will be able to serve in PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 50 defined roles when needed. This is particularly important given the role of the National Guard as the primary combat reserve force in the United States military and the federal military commitments that the National Guard has maintained since the first Gulf War. State defense forces are low cost force multipliers that are able to fill a variety of roles in disasters and emergencies, and there is a wealth of trained and knowledgeable personnel available to serve in these militia units. The militia is "the people" and government should take full advantage of this resource.

PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 51

References

10 USC 311. (1956, August 10). Release from Militia duty upon order to active duty in reserve

components. Retrieved November 9, 2014, from

http://uscode.house.gov/view.xhtml?req=militia&f=treesort&fq=true&num=5&hl=true

&edition=prelim&granuleId=USC-prelim-title10-section311

250.25: Courts Martial. (2014). Retrieved December 6, 2014, from

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_Strin

g=&URL=0200-0299/0250/Sections/0250.35.html

Active State Forces. (n.d.). Retrieved November 9, 2014, from

http://www.sgaus.org/states/active-state-forces.asp

Article 4 - Executive Department. (n.d.). Retrieved December 29, 2013, from

http://www.statutes.legis.state.tx.us/Docs/CN/htm/CN.4.htm#4.4

Article 5. (n.d.). Retrieved December 29, 2013, from http://www.maine.gov/legis/const/#a5

Article 9, Militia. (1961, November 7). Retrieved November 9, 2014, from

http://www.legislature.state.oh.us/constitution.cfm?Part=9

Availability of material for Naval Militia. (2006, January 6). Retrieved December 29, 2014, from

http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-

section7854&num=0&edition=prelim

Bray, C. (2013, Jan 26). What a 'militia' meant in revolutionary America. Wall Street

Journal Retrieved from

http://search.proquest.com/docview/1281305316?accountid=8289

Brinkley, A. (2007). A Survey - American History (12th ed.). Boston: McGraw-Hill.

Chapter 15, Article 1E: Code of Military Justice. (2010, Jul1 1). Retrieved December 6, 2014, PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 52

from http://www.legis.state.wv.us/WVCODe/Code.cfm?chap=15&art=1E

Chapter 38.04, RCW: Washington Statutes - Composition of the Militia. (2009). Retrieved

January 4, 2015, from http://apps.leg.wa.gov/rcw/default.aspx?cite=38.04.030

Chapter 38.38, RCW: Washington Code of Military Justice. (2009). Retrieved December 6,

2014, from http://apps.leg.wa.gov/rcw/default.aspx?cite=38.38&full=true#38.38.004

Chapter 432, Texas Code of Military Justice. (1987, September 1). Retrieved December 6,

2014, from http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.432.htm

Chapter 5920: OHIO MILITARY RESERVE. (1985, September 23). Retrieved January 4, 2015,

from http://codes.ohio.gov/orc/5920

Chapter 5923: Organized Militia. (1997, September 18). Retrieved November 9, 2014, from

http://codes.ohio.gov/orc/5923

Chapter 5924: Code of Military Justice. (1985, September 23). Retrieved December 6, 2014,

from http://codes.ohio.gov/orc/5924

Florida State Defense Force. (2015, January 2). Retrieved January 4, 2015, from

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0200-

0299/0251/0251ContentsIndex.html&StatuteYear=2014&Title=-2014-Chapter 251

Government Code Chapter 431. State Militia. (2013, September 1). Retrieved November 9,

2014, from http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.431.htm

Government Code Chapter 437. Texas Military. (2013, September 1). Retrieved January 4, 2015,

from http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.437.htm#G

Hamilton, A.. (1788, January 10). The Federalist Papers #29. Retrieved November 9, 2014, from

http://thomas.loc.gov/home/histdox/fed_29.html

Legal Basis of the National Guard. (n.d.). Retrieved October 12, 2014, from

http://www.arng.army.mil/aboutus/history/Pages/ConstitutionalCharteroftheGuard.aspx PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 53

Madison, J. (1788, January 29). The Federalist Papers #46. Retrieved November 9, 2014, from

http://thomas.loc.gov/home/histdox/fed_46.html

Maine Revised Statutes - Maine State Guard. (1983). Retrieved January 4, 2015, from

http://legislature.maine.gov/statutes/37-B/title37-Bsec224.html

Maine Revised Statutes - Enrollment other than National Guard. (1983). Retrieved January 4,

2015, from http://legislature.maine.gov/statutes/37-B/title37-Bsec225.html

Maine State Constitution. (2013, January 1). Retrieved November 9, 2014, from

http://www.maine.gov/legis/const/

Miller, J. (1979). Origins of the American Revolution . Stanford, Calif.: Stanford University

Press.

National Guard: Legacy. (n.d.). Retrieved December 6, 2014, from

http://www.nationalguard.com/legacy

New Jersey Statutes - Title 38A Military and Veterans Law - 38A:1-2 Composition of militia.

(2014, March 22). Retrieved January 4, 2015, from http://law.onecle.com/new-

jersey/38a-military-and-veterans-law/1-2.html

New York Naval Militia. (2012, December 10). Retrieved January 4, 2015, from

http://dmna.ny.gov/nynm/

New York Naval Militia Mission. (n.d.). Retrieved December 29, 2014, from

http://dmna.ny.gov/nynm/?id=mission

Ohio Naval Militia: Mission. (n.d.). Retrieved December 29, 2014, from

http://navalmilitia.ohio.gov/mission.stm

Paullin, C. (1906). The Navy of Massachusetts. In The Navy of the American Revolution: Its

Administration, Its Policy, and Its Achievements . Chicago: Burrows Brothers Company. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 54

Primary Documents in American History. (2014, September 24). Retrieved December 6, 2014,

from http://www.loc.gov/rr/program/bib/ourdocs/commission.html

Raffin, R. (2010, May 1). Mason, Madison, and Militias: A Progressive for a Right to Bear

Arms. Retrieved December 30, 2014, from

http://web.stanford.edu/group/progressive/cgi-bin/?p=559

Scalia, A. (2008, March 18). District of Columbia v. Heller (Majority Opinion). Retrieved

November 9, 2014, from http://www.law.cornell.edu/supct/pdf/07-290P.ZO

Social Security. (n.d.). Retrieved December 3, 2014, from

http://www.ssa.gov/retire2/retirechart.htm

Stein, G. (1984, September 1). State Defense Forces: The Missing Link in National Security.

Military Review , 3-16

Statutes & Constitution :View Statutes : Online Sunshine - Militia. (2015, January 2). Retrieved

January 4, 2015, from

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_Strin

g=&URL=0200-0299/0250/Sections/0250.02.html

Statutes & Constitution :View Statutes : Online Sunshine - Florida Constitution. (2014,

November 9). Retrieved November 9, 2014, from

http://www.leg.state.fl.us/Statutes/index.cfm?Mode=Constitution&Submenu=3&Tab=st

atutes&CFID=36202929&CFTOKEN=60119956

Stevens, J. (1990, March 27). Perpich v. Department of Defense, 496 U.S. 334. Retrieved

December 6, 2014, from

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=496&invol=334

PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 55

Texas State Guard. (n.d.). Retrieved January 4, 2015, from

https://www.txsg.state.tx.us/maritime-regiment.aspx

The Antifederalist Papers No. 28. (1788, January 16). Retrieved December 29, 2014, from

http://www.thisnation.com/library/antifederalist/28.html

The Antifederalist Papers No. 29. (1787, October 23). Retrieved December 29, 2014 from

http://www.thisnation.com/library/antifederalist/29.html

The Avalon Project : Constitution of Pennsylvania; September 28, 1776. (1776). Retrieved

December 29, 2014, from http://avalon.law.yale.edu/18th_century/pa08.asp

The Avalon Project : Constitution of New Jersey; 1776. (1776). Retrieved December 4, 2013,

from http://avalon.law.yale.edu/18th_century/nj15.asp

The Avalon Project : Constitution of Vermont - July 8, 1777. (1777). Retrieved November 9,

2014, from http://avalon.law.yale.edu/18th_century/vt01.asp

The Militia Act of 1792. (1792, May 2). Retrieved November 9, 2014, from

http://www.constitution.org/mil/mil_act_1792.htm

Title 37-B, Chapter 3: MILITARY BUREAU. (1983). Retrieved November 9, 2014, from

http://www.mainelegislature.org/legis/statutes/37-B/title37-Bch3sec0.html

Title 37-B, Chapter 5, Maine Code of Military Justice, Section 401, (1983). Retrieved

December 6, 2014, from http://www.mainelegislature.org/legis/statutes/37-b/title37-

Bsec401.html

Title 38 - Militia and Military Affairs. (n.d.). Retrieved November 9, 2014, from

http://apps.leg.wa.gov/rcw/default.aspx?Cite=38

Title 38A - Military and Veterans Law. (1991, January 1). Retrieved November 9, 2014, from

http://lis.njleg.state.nj.us/cgi- PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 56

bin/om_isapi.dll?clientID=55155716&Depth=2&depth=2&expandheadings=on&headin

gswithhits=on&hitsperheading=on&infobase=statutes.nfo&record={E720}&softpage=D

oc_Frame_PG42

Transcript of Articles of Confederation (1777). OurDocuments.gov . Retrieved from

http://www.ourdocuments.gov/doc.php?flash=true&doc=3&page=transcript

Transcript of the Bill of Rights. (1789). Retrieved January 5, 2014, from

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

Transcript of the Constitution of the United States - Official Text. (1787). Retrieved December 4,

2013, from http://www.archives.gov/exhibits/charters/constitution_transcript.html

Tulak, J., Kraft, R., and Silbaugh, D. (2003). State Defense Forces and Homeland Security.

Parameters. 132-146.

Tulenko, T., Chase, B., Dupuy, T., & Hayes, G. (1981). U.S. Home Defense Forces Study (pp. 1-

98). Washington, DC: Historical Evaluation and Research Organization.

Washington State Guard. (1989). Retrieved January 4, 2015, from

http://apps.leg.wa.gov/rcw/default.aspx?cite=38.14&full=true

West Virginia Code - Chapter 15, Public Safety. (2014, January 1). Retrieved November 9, 2014,

from http://www.legis.state.wv.us/WVCODE/Code.cfm?chap=15&art=1

West Virginia Constitution. (2014, January 1). Retrieved November 9, 2014, from

http://www.legis.state.wv.us/WVCODE/WV_CON.cfm

West Virginia Code - West Virginia State Guard. (n.d.). Retrieved January 4, 2015, from

http://www.legis.state.wv.us/wvcode/Code.cfm?chap=15&art=4#04

USC Title 32 (1956, August 10). Retrieved November 9, 2014, from

http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title32- PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 57

section109&num=0&edition=prelim

Zuckerman, J., et.al. (2012, February 28). Why More States Should Establish State

Defense Forces. The Heritage Foundation - Backgrounder . (2655)