The Militia: A Definition and Litmus Test

53 Pages Posted: 30 Apr 2021

Date Written: April 21, 2021

Abstract

The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the militia consists of all persons in a state or territory who are of arms-bearing age; third, the militia cannot deploy overseas; and fourth, the militia is under the command of the state’s or territory’s governor. This definition will provide courts a firm foundation upon which to rest future opinions regarding the militia.

Keywords: Militia, National Guard, Perpich, Montgomery Amendment, Supreme Court, Enumerated Powers, Second Amendment

Suggested Citation

Armstrong, Marcus, The Militia: A Definition and Litmus Test (April 21, 2021). 52 St. Mary's Law Journal 1 (2021), Available at SSRN: https://ssrn.com/abstract=3831471

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