Standing His Ground: A legal blog on self-defense, gun control, and the Second Amendment
by Robert Leider

New Article: The Modern Militia

I have posted my new article, The Modern Militia, to SSRN. Here is the abstract:

Twentieth-century legal reforms of the military have obscured the distinction between an “army” and a “militia.” For the Framing generation, the distinction between these two kinds of land forces was sharp. An “army” consisted of regular, professional troops, while the “militia” comprised citizens who would perform temporary military service when needed. The twentieth-century reorganization of the military, however, brought nonprofessional soldiers within the umbrella of the U.S. Armed Forces. As a result, most now view the standing army as central to our military system and the militia as anachronistic and largely extinct. Further, most believe that contemporary American society has jettisoned the Framers’ fears of standing armies.

This article reexamines the modern relevance of the militia system. The prevailing view presumes that the traditional army/militia divide concerned whether the country should rely on federal troops or state troops for national defense. But this federalism account is profoundly mistaken. The core of the Framing-era debates involved whether to professionalize the military. The Framers were deeply skeptical of professional soldiers, regardless of whether those soldiers were employed by the federal government or a state government. They preferred that the bulk of American military power reside with civilians. These civilians would perform military service during emergencies but would otherwise live normal, non-military lives.

Viewed through the proper lens, the militia – that is, the nonprofessional soldiery – remains a crucial part of the U.S. military system. Today, nonprofessional soldiers perform three principal tasks, which are similar to those that militiamen performed at the Framing. First, nonprofessional soldiers provide a means to connect the civilian community to the regular military. Second, nonprofessional soldiers supplement the regular forces in emergencies. Third, nonprofessional soldiers provide local forces for domestic peacekeeping to aid civil authorities when necessary because Framing-era norms against use of the professional military for domestic law enforcement persist.

In modern times, we denote the militia with different terminology – “reservists,” “Guardsmen,” and “registrants” (or “conscripts”). But while the labels have changed, the functions of nonprofessional soldiers have not. The militia system remains a vital institution.

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