Militia Clause

Recounting the pre-Revolutionary War history of the American militia and the debates surrounding the adoption of the Militia Clauses to gain insights into the constitutional scope of federal authority.

Arguing that the Framers intended militias to be used to suppress revolution or insurrection.

Recounting the debates at the Constitutional Convention about federal regulation of state militias and documenting the Militia Clauses’ drafting history.

Arguing that the Framers did not insert the Insurrection Clause into the Constitution for the sole cause of protecting slavery but that the protection of slavery was one of the Clause’s anticipated effects.

Arguing that the Framers’ concerns about military mutiny and the abuse of military power by a civilian leader led them to separate the war powers between the Executive and the Legislature.

Providing a brief history of the ratification of the Militia Clauses and the historical practices of the early constitutional militia.

Arguing that the Framer’s structural choice to place the Militia Clauses under Article I both augments and constrains the President’s military power.

Presenting the roles of the army and the militia in the Founders’ political theory, reviewing the debates surrounding the drafting and ratification of the Militia Clauses, and concluding that the Founders believed that relying on a combination of an army and the militia was the most desirable arrangement to protect liberty.

Documenting the pre- and post-ratification debates surrounding the Militia Clauses.

Arguing that the Framers’ intent in dividing power over the militia between the federal and state governments was to protect the nation while simultaneously preserving the states’ liberties.

Offering originalist arguments against the Supreme Court’s ruling in Perpich v. Department of Defense, which limited the rights of the states to decide how their “militias” should be trained.

Analyzing the Framers’ debate over control of the militia and the historical development of the militia in order to resolve several important constitutional issues that arise from the modern-day National Guard’s hybrid state-federal status.