Deciphering the 'Armed Forces of the United States'

84 Pages Posted: 1 Oct 2021 Last revised: 25 Sep 2022

See all articles by Robert Leider

Robert Leider

George Mason University - Antonin Scalia Law School

Date Written: September 29, 2021

Abstract

The Constitution provides for two kinds of military land forces—armies and militia. Commentators and judges generally differentiate armies from the militia based upon federalism. They consider the constitutional “armies” to be the federal land forces, and the constitutional “militia” to be state land forces—essentially state armies. And the general consensus is that the militia has largely disappeared as an institution because of twentieth-century reforms that brought state National Guards under the control of the federal Armed Forces.

This Article argues that the state armies view of the militia is erroneous. At the Framing, the core distinction between armies and militia was professionalism, not federalism. Armies comprised soldiers for whom military service was their principal occupation, while the militia comprised individuals who were subject to military service on a part-time or emergency basis. The armies were the regular forces, while the militia was the citizen army.

From these definitions, this article then provides a better translation of the Framing-era military system to the structure of the modern Armed Forces. Today, the constitutional “armies” consist of the regular non-naval forces (including the regular army and the regular air force). The modern “militia” includes all other persons who perform, or could be called to perform, military service on a part-time or emergency basis. These include military reservists and National Guardsmen, all of whom form the modern volunteer militia, and the registrants of the Selective Service System, who form the modern general militia.

Keywords: Armed Forces, Bear Arms, Conscription, Federalism, Military, Militia, Separation of Powers, Second Amendment, Uniform Code of Military Justice

JEL Classification: K10

Suggested Citation

Leider, Robert, Deciphering the 'Armed Forces of the United States' (September 29, 2021). George Mason Legal Studies Research Paper No. LS 22-16, Wake Forest Law Review, Vol. 57, No. 5, 2022, Available at SSRN: https://ssrn.com/abstract=3933151 or http://dx.doi.org/10.2139/ssrn.3933151

Robert Leider (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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