Tag: Militia
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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…
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Half a Precedent Is No Precedent At All
Why the application of military law to half-pay officers in Britain from 1749 to 1751 does not support the perpetual application of military law to retirees of the Armed Forces of the United States In Larrabee, the D.C. Circuit supported its holding that military retirees are subject to status-based military law jurisdiction with references to…
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Three Statuses, not Two: Why Larrabee Is the Wrong Rule for Nonprofessional Soldiers
In recent years, the military has court-martialed military retirees for conduct that occurred off base and after retirement. These courts-martial involve civilian offenses (e.g., sexual assault) when the servicemen have essentially returned to civilian life. Congress has authorized such prosecutions under the Uniform Code of Military Justice. But there have been challenges to whether Congress…
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Sovereign Immunity and Military Federalism
Are the federal war powers so absolute and exclusive that they include the power to subject state governments to nonconsensual suits for monetary damages? That was the issue last Tuesday when the Supreme Court heard oral arguments in Torres v. Texas Department of Public Safety. Le Roy Torres was a Texas State Trooper who also…
Standing His Ground 