by Professor Barry M Stentiford
For modern State Defense Forces (SDF), the term militia is a problem. SDFs, in most states that have one, are an organized militia of the state, along with the Army National Guard and Air National Guard. Beginning in the 1990s, the term militia started to become associated in the public mind, as well as in the media, with self-formed paramilitary groups operating outside of civil authority and without state commissioned officers. This conflation of legitimate, state-created and sanctioned militia with these non-governmental groups presents problems of definition and public acceptance for SDFs.
In US Code, as well as common law, militia by definition is under the authority of some level of government. Organized militia is maintained by state statutes and is under the command of officers who hold state commissions, with the governor as the commander-in-chief1. It has always been so in the United States. During the colonial era, militia officers served under town or colony commissions, and later royal commissions, to be replaced by state commissions during the Revolution. Throughout the colonial and national history of the United States, militia has been called out by town, county, colonial, and state authorities to respond to crises. Arguably, in a few instances, the federal government has called out part of the militia.
The US Constitution makes clear that no state shall, without the consent of Congress . . . keep troops…” during peacetime2, but also guarantees the right of the states to keep “a well regulated militia3.” The Constitution is explicit that federalized militia can “execute the Laws of the Union, suppress Insurrections and repel Invasions.”4 To Congress falls the responsibility 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…” while the states retained the power to commission officers and train the militia, as long as the states follow the military discipline set by Congress5. When federalized, militia falls under the command of the president6.
The National Guard grew out of reforms of the organized militia in the decades after the Civil War. The term militia had become discredited in much of the nation, carrying images of amateurish militia musters, which often devolved into drunken holidays or its opposite image, of snobs in garish uniforms toasting each other at banquets while providing little to no real military service. The first units to call themselves national guard were in the New York militia in 1824, which adopted the term in honor of the Marquis de Lafayette, who was then making a return visit to the United States. Lafayette, hero of the American Revolutionary War, had commanded the Garde Nationale during the French Revolution. From New York, the use of the term national guard for organized militia spread until by 1916, the land forces in the organized militia of most states had adopted the term.
In the National Defense Act of 1916, all land forces in the organized militia were dubbed National Guard7. The term militia remained, but in the background, usually only appearing in discussions of legal issues such as the basis of conscription. The term was also occasionally used to refer to the National Guard, such as in the Credence Clearwater Revival song Travelin’ Band, which included the line “someone got excited, had to call the state militia…”8 The term had a revival during the American Revolution Bicentennial celebrations in the 1970s, especially in East Coast states where reenactor groups formed to portray militia and minuteman companies of the late colonial and Revolutionary era. And there the term remained for a decade or so, a quaint relic of the past.
That started to change in the late 1980s and 1990s. Some self-formed paramilitary groups began referring to themselves as militia, and often wore military surplus clothing, created ranks for themselves, and trained together. They began to garner publicity, appearing on talk shows to present themselves to the nation. They usually claimed to draw their legitimacy from being in the “unorganized militia.” The concept of the unorganized militia is not found in the US Constitution, and only made its first appearance in federal law in the Militia Act of 19039. The concept of the unorganized militia was simply a recognition that all states with anything that could be called a functioning militia were using volunteer militia, rather than the general or enrolled militia envisioned in last major piece of federal legislation on the militia, the Militia Act of 179210. The Militia Act of 1903 referred to volunteer militia groups recognized by their states as organized militia, while the mass of adult men theoretically eligible for militia service were referred to as the unorganized militia. The concept of self-formed groups in the unorganized militia was not supported by federal or state laws, nor were they what the Founding Fathers would have recognized as militia.
When Timothy McVeigh blew up the Oklahoma Federal Building in 1995, the links between him and the so-called “Michigan Militia” received wide publicity. The “Michigan Militia” had no official ties to the government of the state of Michigan. Suddenly, the term militia became linked in the public mind with these self-formed private groups. Many had anti-government ideology, and some were overtly racist. The State Defense Force Association was thrown on the defensive. The Association at that time put out a newsletter that was called The Militia Journal. Some members became concerned about what the postman or neighbors might think if they saw that in their mail. The name of the journal was quietly changed to the Journal of the State Guard Association. Historically, State Guard forces, or State Defense Forces, drew their legitimacy from being an organized militia alongside the Army National Guard and Air National Guard of their state. But too many Americans and the media could not differentiate between legitimate state militia and private paramilitary groups.
The label problem persists to the present; witness the intemperate reaction in the media in 2022 when Governor Ron DeSantis of Florida proposed creating a quite modest State Guard. The term militia is today political poison, while it is also increasingly inaccurate for modern State Defense Forces. Almost all State Defense Forces, where they exist have had to downplay the very idea that they would ever bear arms as part of their duties. Which brings about a related question—is an unarmed organized militia actually a militia? The core concept of a militia is armed citizens organized as a temporary body by some level of government. But both the term militia, as well as the potential to be armed, causes public relations problems for SDFs.
Most modern State Defense Forces would more properly be described, to coin a phrase, as organized uniformed services rather than organized militia forces. The United States currently has six branches of the armed forces11, while it has a total of eight uniformed services, with the Commissioned Corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA) the additional two. While not armed services, these two uniformed services largely function along military lines, with ranks and uniforms similar to the US Navy and Coast Guard, while members receive pay and benefits aligned with the military’s. These uniformed federal services perhaps provide better models for modern State Defense Forces. SDFs can be a real force multiplier to a state’s emergency response system, providing skills and services that either augment or compliment the National Guard. The existence of an SDF gives options to lawyers, medical personnel, cyber experts and other professionals who want to be able to serve their state in an emergency but cannot or do not desire to join the National Guard with its additional federal obligations. An SDF as a uniformed service can do that without the negative baggage that comes with the term militia.
- National Guard officers hold an additional reserve federal commission, which gives them command authority when mobilized by the federal government. ↩︎
- US Constitution, Article I, section 10. ↩︎
- Ibid., Second Amendment. ↩︎
- Ibid., Article 1, section 8. ↩︎
- Ibid., Article I, section 8. ↩︎
- Ibid, Article II, section 2. ↩︎
- National Defense Act of 1916: An Act for making further and more effectual provisions for the National Defense, and for other purposes, ch. 134, sec. 2, Statutes at Large of the United States of America 39:166–217 (1917). Naval militia, in the handful of states that had one, was not included in the National Guard. ↩︎
- John C. Fogerty, “Travelin’ Band,” Concord Music Publishing, LLC. ↩︎
- Militia Act of 1903: An Act to Promote the efficiency of the militia and for other purposes, ch. 196, sec. I, Statutes at Large of the United States of America 32:774–80 (1904). ↩︎
- Militia Act of 1792: An Act more effectually to provide for the National Defence by establishing a Uniform Militia throughout the United States, ch.33, sec. I, Statutes at Large of the United States of America I:271–74, 1846). ↩︎
- US Army, US Navy, US Marine Corps, US Air Force, US Space Force, US Coast Guard. ↩︎
