I never knew I was in the militia

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 Although the act was repealed by the Militia Act of 1903, its essence remained.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)

2 comments to I never knew I was in the militia

  • c orpsman

    You have done a fair job of covering the issue, however you have made a couple of minor errors and a major blooper.

    Current federal law is this:

    10 U.S. Code § 311 – Militia: composition and classes

    Current through Pub. L. 113-296, except 113-287, 113-291, 113-295. (See Public Laws for the current Congress.)

    US Code

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    Second Amendment reads:

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Not, “(is) necessary”.

    Most state constitutions have similar provisions.

    To be able to accurately read and understand the Constitution one needs: a copy of said Constitution, a copy of the Federalist Papers, and an English dictionary of the time, such as Dr, Ben Johnson’s “A Dictionary of the English Language” Dublin, Ireland, 1765. or any of the Oxfords of the era. The latter because English usage and word definitions have changed since then.

    “A well regulated Militia” means, and meant when the passage was authored, in good order, well trained, well disciplined. Allegorically like a well tuned engine. It did not, and does not mean regulated by the government. Militias were community organizations that provided for the common defense, law enforcement, fire suppression, emergency medical care and all the services now typically associated with police and other tax funded government agencies. Typically the militia unit had a sergeant who was appointed by a company commander, usually from the largest community in a county or town. The commander was elected by the citizens, and when called to active duty by the sheriff or governor, commissioned by said authority.

    Unorganized means not in active service. It does not mean a list of names. The unorganized militia was expected to meet regularly, perform competent manual of arms, using their personal. privately owned, military weapons and train to the standards of military competence. If a militiaman could not afford a contemporary military weapon, he was issued one or assigned to artillery. That’s right, cannons, owned by the community and maintained by the militia. That is what the Massachusetts governor was after when he sent his British army and German mercenaries to Lexington and Concord on 19 April 1775. The National Guard is a permanent, standing army, albeit “part time”, that does not, and has not supplanted the unorganized militia. Notice all the overseas deployments made by the Guard? By law, the unorganized militia is still fully valid. There is another element under the “organized” militia, and that is the state defense forces. Almost all states have constitutional provisions for a State Guard or Defense Force. This is a uniformed, trained and armed force that reports to the governor and is not subject to federal activation but in time of declared war or invasion. Some 27 states have active forces, some very small and some, like New York, having large formations including air and naval forces.

    Your comment; “…members of the “unorganized” militia were NOT supposed to perform any duty or carry any weapons or have any responsibilities.” is dead wrong. By law.

    • Tim

      Thanks for your comment, especially on the history of militias. I didn’t get into that because I thought the post was too long already and strayed a bit from the fact that I just now became aware of the constitutional provision. However, in self-defense (no pun intended):

      The post doesn’t discuss current federal law because I wasn’t discussing legislative history to the present. I was talking about the age of the laws and that the 1903 act added the two categories and removed the requirement of being a free white man. And I think I said unorganized meant not in active service.

      There are brackets in “[is] necessary” per standard style to indicate a word has been added to the original text.

      If the “comment” about unorganized militias is a “blooper,” it’s not mine. Every post has a quotation appended and I don’t have time to research and verify whether every one is totally correct. I link to the source of the quotes so a reader can evaluate it if they desire.

      Thanks again for reading and commenting.