I recently read that many states have laws that automatically make virtually all men between certain ages part of that state’s “militia.” South Dakota is one of a number of states where the automatic membership arises from the state Constitution.
Article 15, § 1 of the Constitution says, “The militia of the state of South Dakota shall consist of all able-bodied male persons residing in the state, between the ages of eighteen and forty-five years, except such persons as now are, or hereafter may be, exempted by the laws of the United States or of this state.” This has been part of the state constitution since it was adopted in 1889. In the mid-1970s, the legislature twice proposed repealing this provision but voters soundly defeated both proposals.
In SDCL 33-2-2, whose predecessors also date back to the 19th century, the legislature divides the militia into two classes: the National Guard and “the unorganized militia.” So any man within those age brackets not in the National Guard (or active military) is a member of the unorganized militia. I guess that meant I was a member for 27 years without knowing it. This statute differs from the Constitution in that it says it applies to “all able-bodied qualified residents of the state,” not just “able-bodied male persons,” who are within the current age limits to enlist in the active U.S. military.
There’s also some lengthy federal historical roots to state militias. Most obvious is the fact the federal Constitution says the president is not only commander-in-chief of the armed forces but also “the Militia of the several States when called into the actual service of the United States.” Likewise, the Second Amendment’s right to keep and bear arms arises because a “well regulated Militia [is] necessary to the security of a free State.”
Several months after the Bill of Rights was ratified, Congress enacted what’s called the Second Militia Act of 1792. It required that “every free able-bodied white male citizen” of a state at least 18 years old and under 45 years old be enrolled in that state’s militia. Although the act was repealed by the Militia Act of 1903, its essence remained. The new Militia Act just didn’t say an individual had to be free and white. It created two classes of militia: “organized militia” and “the Reserve Militia.” The Act denominated the organized militia as the National Guard, which consisted of active militia units in the states that received federal support.
Many of the state constitutions establishing militias contain an interesting provision. South Dakota’s appears in Article 15, Section 7, “No person having conscientious scruples against bearing arms shall be compelled to do military duty in time of peace.” Such provisions appear to be a method of recognizing religious-based objections, such as by Quakers. Note, though, the caveat that this applies only “in time of peace.” I speculate this was to recognize and preserve a state’s power to conscript in time of war.
I’m just kind of surprised that I’m only now learning I was a militiaman nearly half my life.
…members of the “unorganized” militia were NOT supposed to perform any duty or carry any weapons or have any responsibilities.
Militia History and Law FAQ (1995)