The Militia

The militias established in the North American colonies originally consisted of all the white, male citizens over the age of 18. Militiamen were expected to acquire their own weapons and other supplies, and to meet regularly for training. Eventually, in areas that were not under direct threat from Native Americans or other colonial powers (the French and the Spanish), groups of volunteers continued to train while other citizens were only required to assist in emergencies. The militias were under the control of the colonial legislatures, not British-appointed officials. As tensions with the British rose, the militias were increasingly seen as a protection against the professional soldiers enforcing British authority. Locally-controlled militias as well as soldiers in the Continental Army fought the British during the Revolutionary War.1

The Militia in the Proposed Constitution

Article 1, Section 8 of the Constitution gives Congress the power to call up and take control of the state militias “to execute the Laws of the Union, [and to] suppress Insurrections and repel Invasions.” Congress may also “provide for organizing, arming, and disciplining” the militia, although the states retain the power to appoint officers and train the militia as dictated by Congress. This was a significant change from the Document (ratified 1781) that established the United States as a union of sovereign states. Certain powers, such as implementing foreign policy and settling disputes between states, were given to Congress. States retained all unspecified powers. Articles of Confederation, which merely required the states to maintain militias but left those militias entirely under state control.

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In order to understand why the framers of the Constitution proposed this change, one must consider the performance of the militia during the Revolution and in domestic conflicts following the war. Decentralized, local control of the militia during the Revolutionary war sometimes led to problems such as insufficient training or lack of coordination.2 Based on his experience with unprepared militiamen during the War of Independence, General George Washington submitted a document entitled "Sentiments on a Peace Establishment" to the Continental Congress that suggested the maintenance of a small standing army and federal regulation of the militia. However, under the Articles of Confederation, Congress had practically no power to regulate the militia.

Shays' Rebellion, a peaceful protest turned violent uprising in western Massachusetts in 1786, further illustrated the need for reform. Although the state militia eventually defeated the rebels, the defection of some militiamen to the rebels’ cause made it clear that locally-based militias were not a dependable protection against popular uprisings.3

The Militia in the Ratification Debates

However, support for a more centrally-controlled militia was not unanimous: Federal control over the militia was a key reason that many Americans opposed ratification of the Constitution. Federalists argued that a federally-regulated militia would lessen the need for a standing army. (See Alexander Hamilton’s Federalist 29.) However, those who opposed ratification argued that since the federal government had the power to control the militia in order to enforce the law, the militia was no better than a standing army. The dissenters at the Pennsylvania Constitutional Convention argued that since the militia “may be subjected to as strict discipline and government” as a permanent standing army, the two are equally dangerous to liberty.4 The prospect of a standing army, meaning professional soldiers who continue to serve in peace-time, was abhorrent to many Americans. In the period leading up to the Revolution, the British used their professional soldiers to enforce what many Americans saw as unjust laws. More generally, standing armies were common in the authoritarian European countries from which Americans were eager to distance themselves.5

Many critics of the Constitution feared that the federal government would use its power over the militia to enforce tyrannical laws. The dissenters at the Pennsylvania Constitutional Convention suggested an amendment that would severely limit federal control over the militia: Congress could only compel a militia to march outside of its state after obtaining permission from the state government. Without this amendment, “the militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by the most galling oppression,” wrote the dissenters at the Pennsylvania convention. “…Thus may the militia be made the instruments of crushing the last efforts of expiring liberty, of riveting the chains of despotism on their fellow citizens, and on one another.”6 Of particular concern was the potential for the federal government to enforce unjust taxes using the militia. As George Mason pointed out, “what would be a proper tax in one State would be grievous in another.”7

The Federally-Controlled Militia in Action: The “Whiskey Rebellion” of 1794

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In 1794, the so-called Whiskey Rebellion broke out in western Pennsylvania. The unrest had its roots in the anger caused by the Funding Act of 1790, in which the federal government pledged to redeem war debt certificates at their full face value, with interest. In the economic turmoil following the Revolution, farmers and other common citizens struggled to pay their debts. They were forced to sell their war bonds to the wealthy for a fraction of their original price. The Funding Act amounted to a transfer of money from the poor and middle-class to the rich elite. In order to pay bond holders, the federal government raised taxes on various goods—including, in 1791, on distilled alcohol. The tax on alcohol was particularly burdensome on small farmers in western Pennsylvania—they relied on whiskey as a form of money, since both cash and markets for their produce were extremely scarce. In 1794 in western Pennsylvania, discontented farmers engaged in an often violent, increasingly widespread protest movement that aimed to prevent the collection of what they saw as unjust federal taxes.8 (Visit this page for more information on the Whiskey Rebellion)

In 1792, Congress had used its authority under the Constitution to pass two pieces of legislation pertaining to the militia. The Uniform Militia Act set general guidelines for how the states should organize and train their militias, and the Calling Forth Act established the procedure by which the president could take control of a state militia.9 This legislation was soon put to use when the so-called Whiskey Rebellion came to a head in 1794. President Washington obtained the necessary judicial and state permissions to call up a force of 13,000 militiamen from Maryland, Virginia, New Jersey, and Pennsylvania, and he personally led part of their march towards western Pennsylvania.10 With such a large force marching their way, the protesters decided not to offer armed resistance.11 From the perspective of the farmers, the fears voiced by opponents of the Constitution had come true: the federal government had used the militia to crush resistance to what they saw as an unjust tax.

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