By: TJ Martinell
Within the debate over the meaning of the Second Amendment, a lot of attention gets paid to the phrase “well-regulated militia.” Most of the time, the focus is on whether or not this phrase infers a collective right, or explains the need for the individual right to keep and bear arms.
What is often left out completely is whether a “well-regulated” militia is needed today as it was then.
In his 2023 paper The Modern Militia, Robert Leider argues in the affirmative. Rather than an obsolete institution outdated by changes to the federal government or the expansion of the U.S. military, Leider asserts that reemphasizing a nonprofessional citizen militia can help ease tensions between the professional military and civilian world, and also help the federal government as it faces an inevitable fiscal crisis.
“Most now view the standing army as central to our military system and the militia as anachronistic and largely extinct,” he writes. “Further, most believe that contemporary American society has jettisoned the Framers’ fears of standing armies.”
During the time of the American Revolution, all colonies except Pennsylvania required able-bodied men between 18 and 65 to be part of a local militia and show up to muster with functioning firearms.
Following the War for Independence, and during the debates over ratification of the Constitution, the issue of a permanent standing army was a source of enormous friction between Federalists and Antifederalists.
Their fears weren’t just based on what had occurred in other countries. The Continental Congress itself had almost faced a coup d’etat at the end of the war via the Newburgh Conspiracy. Officers of the Continental Army planned to march against Congress and force them to issue their back pay. Only an earnest plea by General George Washington convinced the conspirators to abandon their plans.
However, Leider notes the issue during the constitutional ratifying conventions wasn’t merely a national army, but a “professional” force of full-time soldiers who lacked roots, often came from the “dregs” of society, and who were subject to military rather than civilian law. As Leider writes:
“The militia, in contrast, largely avoided the armed faction problem. As nonprofessional citizen soldiers, militiamen were not culturally separate. Militiamen primarily lived as civilians. They had extensive ties to the community, including owning property, civilian employment, and families. Nor were they a legally distinct caste. Unlike regular soldiers who were subject to military law at all times, militiamen were only subject to the rigors of military law during war or in training. Otherwise, militiamen lived as ordinary civilians, subject only to civilian law and retaining their full civilian common law rights. Moreover, the general militia consisted of the entire able-bodied male population. Because the militia maintained an identity with the broader community, the militia was not its own faction within society.”
As Leider points out, for Antifederalists like Patrick Henry and George Mason, a national standing army would subvert the role local militia plays in maintaining domestic civil order.
“Nonprofessional soldiers reduce civil-military tensions by acting as a bridge between civilians living in a free and individualistic society and professional soldiers, who live under the hierarchal and anti-democratic constraints imposed by military law.”
Despite what some may claim about its irrelevancy, Leider says this distinction between the U.S. military and the state National Guard remains to this day.
“The Framers did not trust the regular military to engage in domestic law enforcement, and neither do we. This is why, on and after January 6, the National Guard provided extra security at the Capitol, not the Marines from Quantico.”
Leider argues that professional and nonprofessional soldiers are differentiated based on various criteria, including:
- Peacetime service
- Method of induction
- Enlisted personnel
- Scope of jurisdiction under military law
- Type of Conflict
- Wartime service
Put simply, the two entities are separate, unique, and fundamentally different in their respective roles.
“As two different military systems, standing armies and militias have different strengths and weaknesses,” Leider writes. “For example, standing armies are usually more proficient in warfare than citizens called into temporary militia service. But standing armies are also expensive to maintain, and they can threaten the supremacy of civilian government.”
“By the time of the Constitutional Convention…The question was how to strengthen the military system without risking oppression or undermining civilian government. Ultimately, efforts to limit the size of the standing army were rejected. The Constitution left the size and economic burden of the army to Congress.”
The major distinction between the standing army and a militia was its “professionalism.” This term didn’t refer to its conduct, but the profession of its members.
Was this their primary occupation, or was it a role they served on the side apart from other duties? A national army was more likely to be the former, while it was even more probable local forces would be nonprofessional, because the states had even less money to maintain an army of full-time soldiers. Leider explains:
“Collective-rights theorists, thus, treat these Framing-era military debates as though they pitted a national army against a state militia. These arguments might see some trees, but they miss the forest. The Anti-Federalists were not primarily objecting that the federal government might weaken state governments by disarming state militaries. Instead, their principal concern was that the Constitution created a military structure that would endanger civil liberty.
“This is why many state constitutions had admonitions against the maintenance of standing armies. These state constitutional provisions, some of which predate even the Articles of Confederation, were warning against the dangers of professional troops, not national troops. Professional armies employed by state governments were understood to be even more dangerous than a national standing army. Many Framers’ ultimate fear was that regular forces would usurp the authority of the popularly elected government, either on their own authority or in the service of an unprincipled executive officer.” [Emphasis added]
Many framers ultimately feared that regular military forces would usurp the authority of the popularly elected government, either on their own authority or in the service of an unprincipled executive officer.
Leider ironically notes that while collective rights and individual rights groups disagree over the meaning of the Second Amendment, they typically share two fundamental views: one is that the National Guard is part of a “standing army,” and that a permanent army should not be feared the way the founders did.
However, Leider disagrees with this assessment.
“Concerns about how standing armies interact with democratic governments are not bygone relics of eighteenth-century political thought. In some form, the civilian-military gap continues to exist today, even though its precise scope may be debatable.”
In fact, Leider sees a transition toward a nonprofessional army as a way for the country to get out of its financial straits. He writes:
“The country is over $30 trillion in debt, with much more in future unfunded liabilities. Eventually, the United States will need to cut federal spending, and undoubtedly, part of those cuts will come from the military budget. As our ability to pay and provide benefits for troops declines, we will have to reduce the size of our forces.
“Because of fiscal pressures, vibrant nonprofessional forces will likely remain a crucial part of the American military establishment for generations to come. These nonprofessional forces are not standing armies, and they should not be legally understood as such. It is time that we reinvigorate the legal study of the militia by recognizing the militia for what it is: military forces comprised of nonprofessional citizen-soldiers, distinguished from a regular army of full-time, professional troops.”