1.

With this document I do hereby support, defend and protect the Constitution of the United States against domestic enemies who have attacked not only my personal civil rights, but who has also attacked the Constitution of the United States itself which I now herein defend. Military Service, Honorably Discharged, Disabled Veteran 2. On or about my eighteenth (18th) birthday, I went to my local post office and in accordance with federal law I formally registered for Selective Service. 3. I enlisted as a volunteer with the active duty United States Air Force shortly after my 18th birthday, due to a deeply held philosophy that all citizens should perform active duty military service in the regular military and due to a sincere personal commitment to my country. 4. I have been discharged from the Active Duty and Reserve Armed Forces under Honorable Conditions, and received awards due to my good conduct, and service. I am currently a member of the United States Air Force Inactive Reserves, subject to reactivation, and I am also a member of the unorganized militia. 5. As part of my oath of enlistment into the United States Air Force I took a very solemn oath in front of an American Flag, and given to be my an Senior Officer of the United States Air Force. Once this oath is taken, it cannot be undone, and it take effect for the duration of my natural life. 6. I have taken a solemn sworn oath that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same. This oath requires that I undertake actions that will protect the Constitution, and that no matter if it is a foreigner invading this country, or corrupt government officials subverting the Constitution, I am duty bound to defend the Constitution. 7. During my technical training in the military I was indoctrinated in the Code of the U.S. Fighting Force as part of my Code of Conduct training, during which I took my second oath during my military service. I was taught that this code and oath applied not only to active duty personnel, and to reservists of the active duty components, but also to the National Guard (the organized militia), and to all members of the unorganized militia (once they are given the oath). Once this oath is taken, it cannot be undone for the duration of the persons life. 8. Due to my good behavior, technical competencies, responsibility, supervisory skills, leadership skills, and military bearing, I was promoted to the rank of Non-Commissioned Officer, and at that time a took the third oath of my military service. 9. When I joined the military, the United States Government engaged in an extensive special background investigation to ensure that I was a U.S. Citizen. That I was strictly

- 1 -

loyal to the United States, that I could be trusted with Top Secret and related things, and that I held allegiance only to the United States Government and to the Constitution of the United States. The results of this special background investigation resulted in my being granted a Top Secret security clearance, with unsupervised and unrestricted access to the SIOP Plan (nuclear war, and retaliation plans) of the United States; unsupervised and unrestricted Top Secret Cryptographic access; and access to Top Secret materials from the Central Intelligence Agency, and the National Reconnaissance Officer to include access to codeword or specially compartmented classified materials in regards to spy satellites, intelligence derived from covert eavesdropping activities, TSCM, TEMPEST, signals intelligence, to include highly classified penetrations of Soviet Waters and airspace, ferret operations, and other classified matters. 10. Further, early in my military service at various times thereafter I also entered (or reentered) into an agreement with the United States Government where I took a formal oath and made promised to protect classified information with which I was entrusted (once this oath is taken, it can not be undone, I am bound by it for life). 11. I have taken similar solemn oaths of secrecy, and made similar promises of nondisclosures to the Central Intelligence Agency, the National Security Agency, The National Reconnaissance Office, the U.S. Department of State, the Executive Branch, to Congress, the Federal Bureau of Investigation, and other federal; and state agencies. 12. I have no reservations about laying down my life, in defense of our country, and I would do so willingly. 13. I also, have no reservations about defending the Constitution of the United States with every drop of blood in my body, every bone, and every piece of flesh on my body, and I would do so willingly. 14. I am a Veteran of the active duty United States Air Force, proudly served my country, and was transferred to the active Air Force Reserves at the end of my service period. 15. I have also served in the active Air Force Reserves and was given an Honorable Discharge. 16. I was then enrolled in the inactive Air Force Reserves at the end of my active reserve duty. 17. Upon my death, I am entitled to a military casket, a military flag for my casket, and a military honor guard, and military funeral, and veterans tombstone for my internment. 18. During my active duty service, I was significantly injured several times, and due to these injuries, I am partially physically disabled.

- 2 -

19. I am a disabled veteran, I am proud to have placed myself in danger in defense of my nation, and to have sustained injuries while on active duty, and I would do so again without reservation if called to duty to protect this country. Early Training in Arms, Militia, Marching, Military Discipline, and Related Training 20. At about the age of six (6, when I entered the first grade) and continuing until I went on active duty with the USAF after graduating from high school, I was instructed by my family, school groups, Royal Rangers (K-12 church group), Cub Scouts, Boy Scouts, Explorers Scouts, community groups, and church groups in the responsible use of arms, drilled in marching and took part in military style formations and ceremonies on a weekly basis, with the express purpose of developing responsible skills and military discipline for use as a young adult. 21. I was born into a Christian family, to Christian parents, who themselves had Christian parents, as were their parents before them. I was raised as a Christian, educated in the faith, and have consciously adopted the Christian faith as an adult. I was dedicated, and baptized as a young man, and strive to follow the teachings of Christ both in my personal life, and in my professional life. 22. In church, and through my family I was taught the Old and New Testament of the Holy Bible and as a child I was a student of the Gospels to include the Gospels of Mathew, Mark, Luke, and John. I recognize and assert the following: a. Jesus Christ both permitted and commanded his followers to be well armed. "He said to them, 'But now if you have a purse, take it, and also a bag; and if you don't have a sword, sell your cloak and buy one'" (Luke 22:36). b. In the NASB translation and interpretation, the same scripture reads slightly differently, but with a similar meaning as: But now, whoever has a money belt is to take it along, likewise also a bag, and whoever has no sword is to sell his coat and buy one. (Luke 22:36 NASB) c. Jesus Christ himself not only personally supported the keeping and bearing of arms, but Christ himself was actually armed: I come not to bring peace, but to bring a sword" (Matthew 10:34) d. Once Apostles had learned the lesson of trusting in God Carry neither purse, nor scrip, nor shoes: and salute no man by the way. (Luke 10:4), they were to be prepared to defend themselves as they travelled through dangerous areas to take the gospel to the whole world. "Then Peter, who had a sword, drew it and struck the high priest's servant, cutting off his right ear. Jesus commanded Peter, 'Put your sword away! Shall I not drink the cup the Father has given me?'" (John 18:10-11).

- 3 -

e. Jesus allowed Simon Peter to have the sword both before and after this incident. The problem was not that defending someone is wrong; the problem was that it was inappropriate at this time since Jesus wanted to die for our sins (Mark 10:45). "'Put your sword back in its place,' Jesus said to him, 'for all who draw the sword will die by the sword'" (Matthew 26:52). f. Again, Jesus did not necessarily condemn possessing or using the sword. He told Simon Peter to put it back in its scabbard, not to get rid of it. What Jesus is saying is that anyone who fought during that specific confrontation risked his life in doing so as Christ submission to his sacrifice as already ordained.. g. As biblical scripture demonstrates that Jesus Christ required that his disciples, Apostles, and followers to be armed, then as a Christian I am compelled by my faith and religious beliefs to also be suitably armed. Religious civil liberties are guaranteed by the First Amendment to the United States Constitution and in turn by the Fourteenth Amendment, and provide for a federally protected right upon which the Commonwealth of Massachusetts (or any other state) is prohibited to infringe. Additionally, as these biblical commandments predate the formation of the Constitution of the United States, and were incorporated into the minds and intentions of the signatories of the Constitution of the United States, and into the minds and intentions of the colonial era Congress. h. While I am a very gentle, thoughtful, and compassionate Christian, I also recognize that there are times when it is appropriate to use arms, but that this must be done with great restraint and only as a last resort. i. It is notable that the Christian religion and thus the teachings and commandments of Jesus Christ are inherently assumed and implicitly present in the Constitution of the United States. In fact, the United States Constitution contains a direct reference to Jesus Christ in three direct references. j. As the framers of the Constitution embraced religious neutrality and religious freedoms and protections in regards to the practicing of both Christian and nonChristian faiths, they nonetheless based the Militia Clause, and the Second Amendment partially upon the direct commandants of Jesus Christ. This is of particular importance as it convincingly demonstrates the intentions of the framers in regards to their own religious beliefs in regards to arms, self defense, and the defense of others. k. Thus, any infringement or restraint upon my right to keep and to bear arms is not only a violation and deprivation of my right under the Second Amendment to the Constitution of the United States, but as such it is an infringement that impairs my ability to follow the commandments of Christ, and the infringement also interferes with my First Amendment rights in regards to the practicing and free exercise of my faith of my choosing and forms a deprivation of this right.

- 4 -

l. In Sherbert v. Verner, 374 U.S. 398 (1963) the Supreme Court required states to meet the "strict scrutiny" standard when refusing to accommodate religiously motivated conduct. This means that a government must have a "compelling interest" regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith. m. In Wisconsin v. Yoder, 406 U.S. 205 (1972) the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional. n. The need for a compelling interest was narrowed in Employment Division v. Smith, 494 U.S. 872 (1990) which held no such interest was required under the Free Exercise Clause regarding a law that does not target a particular religious practice. o. In Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) the Supreme Court ruled Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santera religion, while providing exceptions for some practices such as the kosher slaughter. Since the ordinance was not "generally applicable," the Court ruled that it needed to have a compelling interest, which it failed to have, and so was declared unconstitutional. p. As the right to keep and to bear arms is a federally protected right, and federal statues already provides limitations upon those right as to may possess arms (for example, this citizens adjudged insane or adjudged to be felons is not allowed access to arms), who is forbidden to possess arms, and how they may be acquired, the Commonwealth of Massachusetts thus has no compelling interest, reason, or cause to impose restrictions beyond those already present in federal statue. q. Further, as there is no federal license required to keep and bear arms, and the right to arms is a federally protected act (by virtue of the Constitution of the United States), any state would err in confecting any licensing scheme in regards to arms as any act of licensure is by its very nature an infringement upon a right. 23. By the time I was in middle school, I knew how to march, how to call cadence, drill with ceremonial sabers, drill with parade rifles, how to march in a parade, how to stand at attention, parade rest, and at-ease, how to keep a crisp uniform, how salute properly (in the U.S. military style), and how to respond and react instantly to the verbal or silent commands and gestures I was given, both in drills, the parade ground, within my family and also in school. 24. I was also oriented to the militia laws that are the underpinnings of our democracy and the to moral responsibility of all citizens to active duty military service upon high school graduation, and to militia service outside of active duty military service.

- 5 -

25. Starting at an early age, my father taught me to be familiar with arms, how to fish, to dress game, and survive in the field for longer, and longer periods through camping trips into the woods. 26. By the age of eight, I was proficient in map reading, dead reckoning, the use of a compass, navigating over land, field first aid, sleeping in a tent (or hammock) while camping, and being able to comfortably march, move, and camp deep in the woods for long durations at a time. 27. As I matured, in my youth my parents started to take me to Civil Defense seminars, workshops, and classes that were run by the county, state and federal government, and courses with the Red Cross on first aid, disaster operations, and related topics. Many members of our church and local community also took part in these courses, workshops, and seminars. Given that this as during the peak of the Cold War the Federal and State agencies were aggressive is educating anybody willing to learn Civil Defense skills, and Fallout Shelter Operation and Shelter Leadership skills. 28. As a youth, my mother and father took me on their weekly range practice sessions. While at the range I was taught safety, and eventually was taught how to properly, hold and aim a firearm. 29. Eventually, as the years went on I was taught to load small caliber revolvers, and my father firmly held my hands on the firearm by encircling his hands over mine and he taught me sight picture and how to shoot the target with considerable accuracy, and to control recoil. He also taught me how to properly clean firearms after use, and how to inspect them for damage. 30. In time, as I grew older he taught me to operate small arms to include pistols, revolvers, small shotguns, air rifles, and small caliber rifles (all under very strict adult control and tight supervision with him moving my hands and fingers to operate the arms, or him holding the rifle while I aimed it and pulled the trigger). 31. In my pre-teen years my parents oriented me to home defense with a pistol and revolver, taught me how to evacuate the home and assist my siblings and elderly relatives out of the home in the event of a fire, and how to respond to various natural disasters. My parents periodically gave me random drills, and periodically in the middle of the night, we would have surprise fire drills, natural disaster drills, or armed intruder drills. 32. As I grew older, and became physically capable of handling full sized arms, I was allowed to carry arms in the field and shoot high powered military-style and hunting rifles, target rifles, and military shotguns, full sized military pistols, and full sized military revolvers under immediate adult supervision and control.

- 6 -

Childhood U.S. Army Marksmanship Training, by way of the Civilian Marksmanship Program (CMP) 33. Throughout my teenage years and right up into my military service, I competed in school and church groups in firearm competitions involving the National Rifle Association (NRA) and through the U.S. Army by way of the Civilian Marksmanship Program (CMP) in National Matches. As the U.S. Army Civilian Marksmanship Program (CMP) is strictly limited to the small arms of the U.S. Military and Militia, in the configurations of the military, I was strictly limited to military arms and ammunition (supplied by the U.S. Army) for both CMP and NRA practice and completions. a. Any United States citizen not suffering from very specific enumerated federal disqualifications may purchase U.S. military surplus battle or assault rifles and ammunition through the Civilian Marksmanship Program (CMP). b. The CMP is currently run by the Corporation for the Promotion of Rifle Practice and Firearms Safety (CPRPFS), a not-for-profit corporation chartered by the United States Congress in 1996 to instruct citizens in marksmanship and promote practice and safety in the use of firearms. c. The group holds a congressional charter under Title 36 of the United States Code. d. From 1903 to 1996, the CMP was sponsored by the Office of the Director of Civilian Marksmanship (DCM), a position first within the Department of War and later in the Department of the Army. e. The original purpose of the program (by way of the Militia Act of 1903) was to orient U.S. Citizens to military arms and ammunition so that they would be of value in the organized or unorganized militia, and to distribute and sell these arms to these citizens directly from the U.S. Army armories so that civilians might possess them, practice with them, compete with them, and when mustered for militia duty to show up armed with personally possessed modern battle rifles, shotguns, pistols, bayonets, accessories, spare parts and ammunition. f. This program was directed towards getting the arms into the hands of young teenagers to allow 4-5 years of practice before reaching the mandatory age of 17, where service in the unorganized militia as required by statute, absent their enlisting in the National Guard or Active Duty military components. g. The Director of Civilian Marksmanship (DCM) was normally an active-duty U.S. Army colonel. h. The Civilian Marksmanship Program - Continuing a 101-year History of Service to the Nation In 1903, the War Department Appropriations Bill authorized the establishment of the National Board for the Promotion of Rifle Practice as

- 7 -

well as the National Rifle and Pistol Trophy Matches, a concept strongly supported by President Theodore Roosevelt, an avid rifle shooter. The measure provided a great boost to civilian marksmanship training, an effort begun a generation earlier by the National Rifle Association. At its first meeting, the Board determined "That every facility should be offered citizens outside of the Army, Navy, Marine Corps, and organized militia [National Guard] to become proficient in rifle shooting, and that this purpose can best be accomplished by means of rifle clubs." In 1905, another step forward was taken, when President Roosevelt signed Public Law 149 into effect, authorizing the sale, at cost, of surplus military rifles, ammunition, and related equipment to rifle clubs meeting requirements specified by the Board and approved by the Secretary of War. The National Defense Act of 1916 authorized the War Department to distribute arms and ammunition to organized civilian rifle clubs under rules established by the Board, provided funds for the operation of government rifle ranges, and opened all military rifle ranges to civilian shooters. Today, many military base rifle, pistol and shotgun ranges are used by civilian shooting clubs and associations, providing excellent opportunities for training, practice and competition. The National Defense Act also created the Office of the Director of Civilian Marksmanship (DCM), under the Board. For many years, the DCMs programs were managed by the Army. However, the National Defense Authorization Act of 1996 (Public Law 104-106, effective date: 2/10/96) transferred the DCMs function to a new, private, non-profit corporation chartered specifically for this purpose. The new entity, the Corporation for the Promotion of Rifle Practice and Firearms Safety, Inc., is directed by a nine-member board of directors initially appointed by the Secretary of the Army. The restructuring of the CMP, earnestly supported by the NRA, was opposed by anti-gun Members of Congress, who would prefer to abolish the program entirely, eliminating its firearm safety training activities and destroying its rifles and ammunition. The CMP continues to administer the historic Excellence-in-Competition program and to sponsor the National Trophy Matches, which include the Presidents Rifle and Pistol Matches, fired with Service Rifles (such as the AR-15) and Service Pistols. Congress has directed the Corporation to give priority to programs that reach as many young Americans as possible. The CMP has no future federal funding and the Corporation must rely entirely upon income generated through sales of rifles, ammunition and related equipment; affiliation and match fees; etc. The Corporation is taxexempt and may solicit funds and services by donation or request. All funds

- 8 -

collected by the Corporation may be used only to support the official functions of the CMP. The DCM is a civilian employed by the Board of Directors and is the chief administrative officer for the daily operations of the CMP. The CMP is authorized to loan, sell or lease rifles, ammunition, targets and other supplies to qualifying clubs and associations. CMP may provide .22 rimfire ammunition and .177 caliber pellets for use by shooters ages 10-20, based on junior members participation in the affiliated organizations programs. Youth programs conducted by the Boy Scouts of America, 4-H, American Legion, and other civic groups are a priority. Competitors 20 years of age and under may receive travel stipends to attend the National Trophy Matches, the Small Arms Firing School held during the matches, and special training clinics. The CMP is authorized to sell surplus M1 "Garand" rifles, ammunition, rifle repair parts and accessories, and competition gear such as shooting jackets and targets, to individual members of its affiliated organizations actively engaged in marksmanship training. Match-grade AR-15s may be purchased through the CMP, by affiliated organizations. National Rifle Association, Posted on August 3, 2004, http://www.nraila.org/newsissues/fact-sheets/2004/the-civilian-marksmanship-program.aspx 34. I took part in my first U.S. Army Civilian Marksmanship Program (CMP) training at the age of 12 (whereby I was receiving formal militia training, from the U.S. Army). By the age of 13, I was competing at the annual National Matches at Camp Perry, Ohio for highpowered service rifles, and the next year competing with military service pistols. In each case, I competed individually, and also as part of a local team (usually with the team from our church). 35. I continued my firearm competitions both locally and at Camp Perry until I enlisted in the USAF for active duty military service. 36. In basic training and technical school for the USAF, at the firearm ranges, I shot as an expert marksman, every time, no matter the weapons used, ranging from pistols, revolvers, carbines, rifles, shotguns, sniper rifles, machine guns, and grenade launchers. 37. While on active duty military service, every time I re-qualified on the range, I achieved an expert marksmanship score and certification. Utilizing Arms in the United States Air Force 38. My duties in the USAF required that I be armed for most of the time I was on duty, and this was usually in the form of a compact Smith and Wesson .38 Special revolver, or a Ruger .357 Magnum revolver, or a Colt 45 ACP 1911 pistol due to tight working quarters, all of which I had gained proficiency with, well before enlistment.

- 9 -

39. While on active duty, and at periods afterwards, I was granted a Top Secret security clearance, and was trusted sufficiently to be given unrestricted and unsupervised access to highly classified materials and activities. 40. As I was deemed both highly trusted, and highly reliable I was designated as a COMSEC and Special Intelligence courier and routinely acted as an armed courier of highly classified (often Top Secret, to include all special access programs) documents, classified cryptographic devices and materials (usually Top Secret), classified electronics, classified computer tapes, classified messages, and various forms of classified items and articles. When performing the duties I would often be armed with a semi-automatic pistol or submachine gun and I was under strict orders and drilled to employ immediate deadly force to protect what I was transporting. This required me to move with these materials on base, and to travel between bases and government facilities by way of civilian transport and interstate highways. 41. Because I was also trusted, and diligent in my protection of classified materials. I was designated to handle the bulk destruction of classified documents and computer storage media such and tapes, films, and drums, to include documents and classified materials of the USAF, NSA, NRO, Department of State, and CIA. This activity required that I be armed both with a semi-automatic side arm, and a shotgun or M16 rifle, and while performing document or material destructions, I was ordered to instantly utilize deadly force to protect the documents and materials. 42. While in the military I was taught to modify my shooting skills away from center of mass shooting and towards areas of the body that would result in instantaneous neurological shutdown and death, and to engage firearms, edged weapons, and impact weapons from either hand and at considerable distances against stationary or moving persons. 43. While in the military I took part in regular on-base competitions with small arms to include the M-16 and AR-15 rifle variants, the M-14/M-1A, 1911, 1903, M-1 Grande, M1 Carbine, military shotguns, and military service pistols. I also helped to coach other service members at the range at and before these competitions, and evolved into a respected firearms instructor and coach. 44. While in the military, I also donated time to help coach local Boy Scout and CMP shooting teams, which used the on base ranges periodically. This included my 1:1 coaching, supervising range safety, and assisting the firearms training officers. 45. While in the military I was repeatedly selected to assist in hunting over-populated wildlife on the base to include hunting overly aggressive alligators, and wild boar, and sometimes deer which were then field dressed, and taken to a butcher shop, and the meat packaged and donated to local churches. I was selected for this duty, as I was one of more skilled expert long distance sharpshooters on the military bases I was assigned to.

- 10 -

Required Militia Duty Required of All Citizens, 17 years of age and older (of both genders) 46. On the date of my 17th birthday I automatically became a member of the "unorganized militia" as defined by 10 USC 311(b)(2). 10 USC 311 - Militia: composition and classes (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 47. The modern organized militia created by the Militia Act of 1903, which split the 1792 Uniform Militia forces, and consists of State militia forces, notably the National Guard and the Naval Militia. This split created three distinct branches of the militia. 48. The National Guard (of the states) however, is not to be confused with the National Guard of Reserves of the United States, which are federally recognized reserve military forces, although the two are linked. 49. The National Guard of the individual states actually take a dual oath first to the Constitution of the United States and to the Federal government, and then afterward to the military command chain of the individual state. In this way the National Guard of any state may be Federalized under Title 10, should the governor, legislature, or judiciary disobey Federal law, and that disobedience requires the application of Federalized troops. 50. The reserve militia or unorganized militia, also created by the Militia Act of 1903, which presently consist of every able-bodied man (and now women) of at least 17, and under 45 years of age who are not members of the National Guard or Naval Militia (that is, anyone who would be eligible for a draft, or militia mustering). 51. Former members of the active duty regular armed forces (Standing Armies, not the National Guard) with an Honorable Discharge up to age 65 are also considered part of the "unorganized militia" per Section 313 Title 32 of the US Code. 32 USC 313 - Appointments and enlistments: age limitations (a) To be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45, or under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular

- 11 -

Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age. (b) To be eligible for appointment as an officer of the National Guard, a person must (1) be a citizen of the United States; and (2) be at least 18 years of age and under 64. 52. By case law and Supreme Court descriptions otherwise listed herein, it is found that the definition of Militia has since been expanded to the in regards to the unorganized militia to include both male and female genders, and through various Supreme Court decisions it is stated to include all citizens of the United States, not merely of a specified age range. 53. After my USAF military service, starting in 1987 and until May 2007 I was a member of the "unorganized militia" as defined by 10 USC 311(b)(2), and M.G.L. Chapter 33, Section 1- 3; and Section 54-56 after which time, due to my age (45 years old) I was permitted to continue in the unorganized militia as a volunteer until the age of 65 due to my service in and honorable discharge form the Regular Air Force, and into the inactive Reserves of the United States Air Force. 54. I am at this very time a member of the "unorganized militia" as defined by 10 USC 311(b)(2) and M.G.L. Chapter 33, Section 1- 3; and Section 54-56, and I am required by law and Supreme Court opinions at present to keep and to possess arms for militia service, to include ammunition and accessories for these arms. 55. When I was given an Honorable Discharge from the United States Air Force, I was informed that I would be enrolled in the inactive reserves of the United States Air Force until I reached the age of at least 65, and that I could be called back onto active duty (with the Regular Air Force) on short notice due to my area of expertise of specialized body of knowledge in a certain area of military electronics. I was instructed that if a mustering of the unorganized or reserve militia were to take place that I was to immediately indentify myself as a honorably discharged veteran who was already in the inactive USAF Reserves, and that I would then be brought back onto active duty. 56. Between Fall 1987 and Summer of 1993, the Massachusetts National Guard went to great effort to recruit me out of the Air Force Inactive Reserves, but due to my contractual obligations as a vendor the U.S. Army and to the intelligence community I was not able to accept their commission as it would have created a contractual conflict along with the fact that I was a disable veteran. Massachusetts Property Exempt from Execution - Personal Militia Arms 57. Under Massachusetts General Law, Chapter 35, Section 34 entitled Property exempt from execution it is listed that Tenth, The uniform of an officer or soldier in the militia and the arms and accoutrements required by law to be kept by the officer or soldier; Under the Militia Act of 1903, federal arms are to be provided by the state to the

- 12 -

National Guard members which is also known as the organized militia (which is one of the benefits of being in the National Guard) as the government arms are provided the citizen at no cost to the citizen from federally supplied armories, and are kept by the National Guard Armories, and not kept by the soldier of officer and hence there is zero property interest of these arms by the citizen. 58. It is notable that M.G.L. Chapter 35, Section 34 does not say National Guard or Organized Militia but merely the word Militia. This is notable as Militia encompasses by statute both the organized and unorganized militia (or ALL citizen who are 17 or older) and not merely the National Guard or standing armies. 59. Under both federal and state statute the unorganized militia also known as the reserve militia and in other places of the law called as merely the militia (which is different by statute than the Organized Militia, Volunteer Militia or National Guard as the name evolved over time) was required to acquire, keep, store and maintain their own arms and accoutrements dating back to the Militia Acts of 1792, through the Militia Act of 1903, and through to the present day. This Massachusetts statue protects these arms and other accoutrements suited for unorganized militia service to be exempt from execution as it defines a personal property interest in these arms, and in fact by so doing acknowledges and then re-acknowledges that arms may be and must be lawfully kept in the home, absent licensing. Further, this state statute clearly defines a class of military arms that are to be kept within the home, and defines a property interest in these military arms. 60. When arms are passed from the Federal government to the National Guard armories the Federal government retains ownership thereof, and allows the states to possess federal arms. If the state on the other hand purchases arms, then these are the possessions of the state and not of the Federal government. Either state purchased arms, or Federal government arms may then be issued to members of the organized militia/national guard and issued to the individual National Guardsman. However, the National Guardsman/Organized militia members have no property right over the arms as these belong to the state, as they are loaned to the state by the federal government by operation of the Militia Act of 1903. Nonetheless, the arms held by the unorganized militia, reserve militia, or militia are the actual personal possessions of the militia members, and neither the state or the federal government has any possession interest or ownership in the arms of this group of militia members. 61. Thus under Massachusetts General Law, Chapter 35, Section 34, state statue confirms that the individual citizen has a direct property interest in these militia arms, and that these arms are for unorganized/reserve militia service, and not the National Guard. This state statute confirms that arms are still to this day to be kept by member of the unorganized militia as their own personal property, for use in militia service.

- 13 -

Refinement of Militia and Military Skills 62. From 1987 until 2007, I visited the firearms range at least several times a month to maintain and to hone my skills with arms (not merely with firearms, but all arms). 63. While on active duty in the military, I also sought off-base, and off-duty firearms and edged weapons training and coaching to further develop my accuracy and skills, where I sought out schools or tutoring run by veterans and recognized luminaries or masters of arms such as Jeff Cooper, Jack Weaver, Rex Applegate and others. 64. After my active duty military service I have also attended both advanced government and non-government formal courses in arms, and over the decades of doing this I have became certified as not only an instructor, but also a master instructor (who can certify instructors), and an armorer in every major manufacture, class, caliber and type of bearable arms used presently or historically used by the U.S. Military (and some of the allies of the United States). These courses took place from 1987 to 2009, and formed a continuation of my earlier militia training, and active duty military training and ensured both my proficiency with arms and more importantly the ability to teach others, or to teach and certify other teachers. Militia Medical and Emergency Management Training 65. I have also attended government and non-government emergency medical training, to also continue my militia training to be of service to my local community, my State and my Country should I be called to militia duty. 66. I also became certified to teach emergency and combat medicine topics to include CPR, First Aid, AEDs, Oxygen Administration, Rescue Inhalers, Epinephrine Injectors, Nerve Agent injectors, and other medications, and so on. 67. I also became a licensed EMT, not as a full time profession, but rather to help my community, my State, and my Country should I be called on. Some of this medical training took place at government schools, and some at civilian colleges to include Harvard Medical School, Yale Medical School, Brown University School of Medicine, Georgetown University School of Medicine, and other medical schools. 68. I also became a Red Cross Volunteer instructor, and was the only Red Cross Instructor on the entire North Shore region who was certified to teach not only CPR and First Aid, but also to teach the emergency administration of Oxygen, and the lay responder and professional use of certain drugs used to reverse allergies, shock, heart attacks, and other topics. 69. I have also attended disaster and emergency courses with both Federal and State agencies to include FEMA Federal Emergency Management Agency, the CDC- Center for Disease Control, MEMA Massachusetts Emergency Management Agency, and the state emergency agencies of New Hampshire, Main, Vermont, Rhode Island, Connecticut,

- 14 -

New York, Maryland, and other states. This disaster and emergency training can and should be considered part of my militia training. 70. As far as I know, I possess more formal FEMA credentials, training, and qualifications than any other person or public servant in the Town of Rockport. 71. The priorities of this FEMA training and related training was first to maintain my skills to be of service to the Federal Government, and to be of service in the unorganized militia, and to the USAF should I be called to be of service to my community in time of a emergency or time of crisis, then to maintain my skills for reasons of personal defense of my family and myself. 72. I also maintained my active Professional Certification status as some of my U.S. Government clients required that I be skilled and certified in the use of arms, chemical weapons, explosives, military electronics, protective driving suitable for the protection of diplomats abroad, CPR, and in first aid along with emergency management, incident control and command and other topics. 73. While on active duty in the USAF, I was also trained in and drilled on how to open and operate mass shelters after a nuclear or nerve agent or biological holocaust, and how to raise a unorganized militia force out of the civilians who were in the shelter (in accordance with Title 10) and integrate them into the military forces to assist in operating the shelters. 74. While in the active duty military I was also trained in the use of radiological instruments, and how to set up and operate fallout shelters, and bomb shelters, and how to supply and equip these shelters, and how to operate them for long periods, to include extra-shelter, pre and post attack/disaster foraging for supplies. 75. I was also trained in the military on not only on ho to inflict an nuclear holocaust, and retaliatory strikes, but also ho to function after such a holocaust in an active duty military role, and to provide a Continuity of Government operations. Militia Service Requires Possession of Suitable Arms, Ammunition, Accessories, and Promotes the Development of Useful and Valuable Militia Skills 76. From 2007 to the present date I have been a volunteer member of the "unorganized militia" as defined by 10 USC 311(b)(2), and I will continue to be a volunteer member until the year 2027, when I reach the age of 65. 77. From 2007 to the present date, I have been a volunteer member of the "unorganized militia" as defined by M.G.L. Chapter 33, Section 1- 3; and Section 54-56, and I will continue to be a volunteer member until the year 2027, when I reach the age of 65. 78. Should I be called to Militia duty, I will automatically revert from my USAF inactive reserve duty status to an active duty status with the United States Air Force, provided the

- 15 -

emergency is not eminent, in which case I would reactivate as a USAF member, but serve with the militia initially. 79. Any arms, ammunition, or accessories, which I may have possessed at any time starting at the age of 18, were for personal defense, hunting, militia service, and other lawful activities. 80. Also, that under federal law and opinions of the United States Supreme Court, I am required to supply my own arms, ammunitions, and accessories as per the Supreme Court opinion in multiple cases and by federal statute. 81. I possess specialized teaching skills and expertise in arms and matters of military electronics, military communications, intelligence and counter-intelligence which render me of notable value in matters of national defenses, and it is likely that I will be called upon for voluntary militia service beyond the age of 65 should the Commander-in-Chief (the President) call out the unorganized militia during a national emergency. 82. In one specific area of military electronics, I am considered one of the top six experts in the entire United States, and possibly one of the top two. Due to my expertise in this area, I have been called to testify before Congress, have been called on by the Executive Branch (by the President) as a Subject Matter Expert, and I have been certified as a expert in Military, Federal, State, and County courts to testify as a recognized expert in both civil and criminal proceedings, and I have been engaged by virtually every U.S. Intelligence and U.S. Military agency at one time or another as a civilian contractor. Medical U.S. Government Contractor Training 83. From 1987 onto the present date I have been a contractor to the United States Government, through each of the Military Branches, the Central Intelligence Agency, the Federal Bureau of Investigation, the U.S. Department of State, the U.S. Customs Service, other intelligence agencies, and other agencies of the United States. 84. As a contractor to these government agencies, I am required to remain proficient in the handling of military and personal defensive arms, and to remain proficient in CPR and field level first aid (at the first responder or combat lifesaver level), in addition to my technical skills in electronics and technical counter-intelligence. 85. I am a member of the unorganized militia and an American citizen and as such permitted by federal law, to possess any bearable arms, ammunition, and accessories suited for military or militia service, or personal defense or personal protection. Per the Heller (2008) Supreme Court Ruling Id. at 624-25, per the opinion of the 1st and 97th Congress, and the interpretation of the U.S. Attorneys Office in 2004.

- 16 -

U.S. Citizen/Unorganized Militia Members Privileges, Right and Responsibilities to Keep, Bear, and Equip Themselves with Arms, Ammunition, and accessories of their Choosing. 86. I hereby assert and lay claim here, that by function of the Second Amendment, applied to the States by operation of the Fourteenth Amendment and the Tenth Amendment that I am entitled to keep and bear arms of my choosing for personal defense, or hunting, or target practice exclusive of militia service. In addition, that the Supreme Court in Heller and in McDonald have forcefully affirmed this right, privilege, and immunity. 87. I hereby assert and lay claim here, that by function of the Second Amendment applied to the States by operation of the Fourteenth Amendment and the Tenth Amendment that I am entitled and actually required to keep and bear suitable arms of my choosing for service in the unorganized militia, and to do this without infringement or deprivation by the Commonwealth of Massachusetts. In addition, that the Supreme Court in Heller and in McDonald have forcefully affirmed this right, privilege, and immunity. 88. I, (and Congress, and the Supreme Court) recognize that the militia members (consisting of all citizens) are required to keep and to supply their own arms and to keep and supply their own ammunition per Nordyke v. King, 364 F.3d 1025, 1031 (9th Cir. 2004); the first Militia Act enacted in 1792 by the Second Congress; in The Supreme Court in Miller 307 U.S. at 179; Presser v. Illinois, 116 U.S. 252, 265 (1886); Maryland v. United States, 381 U.S. 41, 46 (1965) and other opinions, rulings, and statutes. 89. The Supreme Court of the United States in the case of: Martin v. Mott, 25 US 19 Supreme Court 1827. For the more clear and exact consideration of the subject, it may be necessary to refer to the Constitution of the United States, and some of the provisions of the act of 1795. The Constitution declares that Congress shall have power "to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions:" and also "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." In pursuance of this authority, the act of 1795 has provided, "that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper." And like provisions are made for the other cases stated in the constitution. It has not been denied here, that the act of 1795 is within the constitutional authority of Congress, or that Congress may not lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has actually taken place. In our opinion there is no ground for a doubt on this point, even if it had been relied on, for the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel

- 17 -

invasion is to provide the requisite force for action before the invader himself has reached the soil. The power thus confided by Congress to the President, is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If we look at the language of the act of 1795, every conclusion drawn from the nature of the power itself, is strongly fortified. The words are, "whenever the United States shall be invaded, or be in imminent danger of invasion, &c. it shall be lawful for the President, &c. to call forth such number of the militia, &c. as he may judge necessary to repel such invasion." The power itself is confided to the Executive of the Union, to him who is, by the constitution, "the commander in chief of the militia, when called into the actual service of the United States," whose duty it is to "take care that the laws be faithfully executed," and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. pp28-31 90. James Madison's initial proposal for a Bill of Rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and did not create a new one, has been acknowledged by the U.S. Supreme Court in Heller. "This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it shall not be infringed. As we (the United States Supreme Court) said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), [t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ... Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 3153 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law. 1 W. & M., c. 2, 7, in 3 Eng. Stat. at Large 441

- 18 -

(1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle)." 91. On January 21, 1790, the 1st President of the United States, George Washington, provided a report to the 1st Congress, 2nd Session a report on the Organization of the Militia in which the initial plan for raising a militia as presented. This report is important in this matter as it provides the parameters described in the Heller Court at 2821 that Constitutional rights are enshrined with the scope they were understood to have when the people adopted them As this report to Congress by President Washington when combined with the initial proposal of the Bill of Rights by James Madison as it provided the Heller standard of scope they were understood to have when the people adopted them 92. The issue of the Militia of all citizens was raised prior to the Second Amendment being ratified, and by reviewing the the scope they were understood to have when the people adopted them between July 1776 and January 1790 the rationale and understanding present just prior to the Second Amendment being debated, and then ratified provides the scope they were understood to have when the people adopted them 93. Further the vision of Congress of the well regulated militia, was manifest in law made immediately following the signing of the Bill of Rights, with the Militia Acts of 1792, and with the refinements thereto that took place up to 1800. The scope in which the 2nd Amendment as passed, and the meanings and intensions of the founders are documents in the laws which they passed to refine and define the 2nd Amendment. 94. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is: "a chimerical idea to suppose that a country like this could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?" Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 97 (2d ed. 1863) 95. Noah Webster similarly argued: Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. - Noah Webster, An Examination into the Leading Principles of the Federal Constitution (1787), Reprinted in Pamphlets on

- 19 -

the Constitution of the United States, Published During Its Discussion by the People, 1787-1788, at 56 (Paul L. Ford, ed. 1971) (1888) 96. George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England's efforts "to disarm the people; that it was the best and most effectual way to enslave them . . . by totally disusing and neglecting the militia." He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein - Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 425 (3d Ed. 1937) 97. The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights", which he proposed to be added to the Constitution. 98. Patrick Henry, in the Virginia ratification convention June 5, 1788, argued for the dual rights to arms and resistance to oppression: Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.- Speech on the Federal Constitution, Virginia Ratifying Convention, 1788 99. While both Monroe and Adams supported ratification of the Constitution, its most influential framer was James Madison. In Federalist No. 46, he confidently contrasted the federal government of the United States to the European kingdoms, which he contemptuously described as "afraid to trust the people with arms." He assured his fellow citizens that they need never fear their government because of "the advantage of being armed...." 100. By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to amendments to assure ratification. Samuel Adams proposed that the Constitution: Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless

- 20 -

when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures. 101. To ensure utter clarity in this pleading, we can consider the recorded opinion of many of the philosophies that were present at the time, and we can peer into the original meaning and the original intent of the original authors. a. To disarm the people is the best and most effective way to enslave them. George Mason, 1788 b. A militia, when properly formed, are in fact the people themselvesand include all men capable of bearing arms. Richard Henry Lee, 1788 (Delagate from Virginia, signer of the Continental Association, signer of the Declaration of Independence, signer of the Articles of Confederation. c. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people. Tench Coxe (delegate for Pennsylvania to the Continental Congress), Pennsylvania Gazette, Feb. 20, 1788. d. The power of the sword, say the minority..., is in the hands of Congress. My friends and countrymen, it is not so, for The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans. The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people. Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788. e. Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. Thomas Jefferson "Commonplace Book," 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764 f. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves,or they may act by

- 21 -

representatives, freely and equally chosen; that it is their right and duty to be at all times armed Thomas Jefferson, 1824 g. On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322 h. That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms Samuel Adams, 1850 102. The Second Amendment to the Constitution of the United States was adopted on December 15, 1791, along with the rest of the Bill of Rights. However, within six months of the Bill of Rights being adopted, Congress passed to acts to refine and direct control the militia, and to place direction upon individual citizens who were now legally required to keep arms at all times, and to be able to bear arms. The Second Amendment did not actually create a right to arms, rather it memorialized a right that was in existence well prior to the creation of Amending of the Constitution. However, by the incorporating of the right to arms into the founding documents of this country the mechanism was engaged to require all citizens to unquestionably have arms in their home, and this universal requirement of arms would lay the initial basis for the militia. 103. Once the right to keep and to bear arms was memorial, which permitted all citizen a right to arms for their on personal defenses, facilitating a natural right to self-defense, and other lawful uses, it then enabled the people to start forming the Militia that the Congress and the President had spoken about strongly. 104. The Militia Acts of 1792 were a pair of statutes enacted by the Second United States Congress in 1792. The acts provided for the organization of the state militias and provided for the President of the United States to take command of the state militias in times of imminent invasion or insurrection. This authority was directly used to suppress the Whiskey Rebellion in 1794. 105. What is particularly poignant in regards to the Militia Acts of 1792, is that the Bill of Rights was introduced by James Madison to the 1st Congress in 1789, and then came into effect by ratification on December 15, 1791. But, it was on March 2, 1792 that Massachusetts became the 12th state to ratify the Bill of Rights, which included provisions for the public to be allowed to keep, and to bear or carry arms; to practice the religion or faith of their choosing, if any; and should they be so industrious to be allowed to obtain a printing press, and to operate either for their own edification, or to the edification of others.

- 22 -

106. Thus, the time between the ratification of the Second Amendment and the passing of the Militia Acts of 1792 was a matter of mere months. 107. The intensions of Congress in first passing the Second Amendment and then almost immediately passing the Militia Acts of 1792 are quite clear, wherein they required protection of the ancient right to arms for self defense, and defense of the country, but also expanded and directed these rights and requirements to include very specific minimal requirement of arms of citizens. Thus, both the Second Amendment and the Militia Acts are inexplicably interwoven and intertwined. 108. Congress first laid down the right to arms as a personal and individual right of citizenship. Then, once this personal right to arms was established, certain arms were then required to be possessed and maintained, and upon these arms the militia were formed. However, there could be no militia unless there was first individual possession of arms, and before that a constitutional protection on the keeping and bearing of arms. 109. Additionally in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) on page 2821, the Supreme Court provides the observation: A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an "interest-balancing" approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people... 110. If we take the Militia Act of 1792 (passed mere weeks after the Second Amendment was ratified) we can discover that "enshrined with the scope they were understood to have when the people adopted them" which the Heller Court speaks of. In fact we can use the exact wording of the Militia Act of 1792 and the aforementioned opinions of the Supreme Court and I assert that the right to arms that exists this very moment (in the understanding of the 1790 time frame). 111. The Militia Act of 1792 (May 1792) is known by the full title of An act more effectually to provide for the National Defense, by Establishing an Uniform Militia Throughout the United States [May 8, 1792] Section 1 it shall at all times hereafter be the duty of every such captain or commanding officer, of a company to enroll every such citizen [in the militia]

- 23 -

That every Citizen so enrolled shall, from and after he shall be duly notified of his enrolment be constantly provided with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball : or with a good rifle, knapsack, shot pouch and powder horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder ; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack [Note; The musket or firelock described in this passage is the .75 caliber flintlock muskets, which were the standard long guns of the British Empire's infantry or land forces from 1722 until 1838. The Long Land Pattern (10.4 pounds, 46 inches without bayonet, 62.5 inches with bayonet, was used by both sides in the Revolutionary War.] That the commissioned officers shall severally be armed, with a sword or hanger, and espontoon [in addition to the aforementioned arms of the foot solider] [Note: a espontoon is a type of 6 to 7 foot lance and battle-axe, used both as a edged weapon and a signaling device to help direct infantry troops]. from and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound. [note: This describes a projectile weighing roughly 388.9 grains, or over twice the weight of the .30-06 projectiles of 150 grains used in World War I, and the 173 grain version used after the war. Indeed the projectile described in this passage is that of a .75 caliber bullet (in the form of a lead ball), which as dramatically larger then the modern .50 BMG projectile (this is slightly heavier, but much longer). Nonetheless, this passage describes a long range firearms, that exceed the .30-06 rounds in antiquity by at least two fold, and is larger then the .50 BMG round of modern arms. And every Citizen so enrolled and providing himself with the arms, ammunition and accoutrements required, as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes [Note: under current Massachusetts Statute these arms are still recognized as individual possession of the citizen, and hence by this statute the Commonwealth acknowledges that the Militia of 1792 is still in existence]. the commissioned officers to furnish themselves with good horses, of at least fourteen hands and an half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered With bearskin caps Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mailpillion [a type of heavy saddle bag] and valise [with food, clothing, and supplies, instead of a infantry knapsack], holsters and a breastplate and crupper [saddle harness], a pair of boots and spurs, a pair of pistols, a sabre, and a cartouch box, to contain twelve cartridges for pistols.... [Note: a

- 24 -

Dragoon is a horse mounted infantryman, who would possess all of the arms of the foot borne infantrymen, but also additional arms suitable for use while on a horse.] 112. Thus, by operation of the Militia Act of 1792, the U.S. Government, and the states (to include the Commonwealth of Massachusetts) recognized that citizens has the responsibility to the federal government and the explicit right to keep and bear pistols, shotguns, muskets, and both large bore (.75 caliber), and long-range firearms suited for use on the field of battle or rather assault rifles. As the Supreme Court recognized in McDonald, that while the technologies and weapons of warfare has changed over the centuries, the Constitution and the Amendments thereof remain the same by which modern arms replace antique arms. 113. Also, Congressional papers, debates in Congress, and reports in relationship to the Militia that date from between 1789 and 1794 which span the point in history of the signing of the Second Amendment and the Militia Acts of 1792 so that the actual words and meaning of the original writers, and the reports, intent, understanding and laws that existed at the time of the Second Amendment can be clearly understood, and must be carried forward into modern times. 114. The timeline of events and legislative matters between 1789 and 1792, and more particularly the events between December 1791 and May 1792 provide solid proof as to the original intentions of Congress; that of first codifying law that formally empowered all citizens to possess arms, and then to take these armed citizens and create from them a nationwide militia of armed citizens, armed with their own personal arms (separate from the standing army). Without the law recognizing the right of all citizens to arms, the Militia Acts of 1792 would have been moot as Congress lacked the funds to arm the entire public. 115. It is notable that U.S. Citizens at the time of the signing of the Constitution and the Bill of Rights already were well armed, and this right to arms of the citizens was a tenant of English law which defined a core right of both self defense, and defense of the country. 116. The First Militia Act, passed May 2, 1792, provided for the authority of the President to call out the militias of the several states, "whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe." The law also authorized the President to call the militias into Federal service "whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act. This provision likely referred to uprisings such as Shays' Rebellion. The president's authority in both cases was to expire after two years. These militias of the several states could not be called out if they were not first lawfully armed with their own arms. This Militia Act was repealed and replaced with the Militia Act of 1795.

- 25 -

117. The Second Militia Act, passed May 8, 1792, provided for the organization of the state militias. It conscripted every "free able-bodied white male citizen" between the ages of 18 and 45 into a local militia company. Militia members were to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack. Some occupations were exempt, such as congressmen, stagecoach drivers, and ferryboatmen. Otherwise, men were required to report for training twice a year, usually in the Spring and Fall. This Second Militia Act (May 8, 1792) has not yet been repealed. 118. Again, through operation of Second Amendment, the entire population of citizens (with certain citizens disqualified such as felons and the insane) was thus proactively protected from any federal or state agency from restricting personal arms possession, or keeping, or the bearing of arms, and as the population was lawfully armed (by operation of the Second Amendment), they could be called up for militia service (using their own arms). 119. But, the right to arms (by operation of the Second Amendment) existed prior to the Militia Acts of 1792, and speak to a personal right to keep and bear arms that was present under English law, and present under the Christian faith. 120. The authority to call forth the militia was first invoked by George Washington to put down the Whiskey Rebellion in Western Pennsylvania in 1794, just before the law granting that authority expired. Congress quickly passed the Militia Act of 1795, which made the provisions of the 1792 Militia Act permanent. 121. The Center of Military Studies, of the United States Army, publishes a series of books of American Military History, and in Volume One The United States Army and the Forging of a Nation, 1775 1917 the U.S. Army itself provided a insightful narrative into the core origins of the militia and the intertwining of the Second Amendment around it: The Constitution gave Congress the exclusive power to declare war, raise armies, and provide for a navy. It also empowered Congress to call forth the militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. But authority over the militia was a shared power. Congress could provide for organizing, arming, and disciplining the militia and governing such Part of them as may be employed in the Service of the United States, but the Constitution specifically reserved to the states the authority to appoint militia officers and to train the militia according to the discipline prescribed by Congress. The militia issue was also central to the shaping of the Second Amendment to the Constitution: the right to keep and bear arms. If the founding fathers recognized the centrality of freedom of speech, the press, and assembly, they also made clear those freedoms would only remain secure if the people could keep and bear arms as an ultimate check on the power of the government. The Second

- 26 -

Amendment has been much politicized since its adoption as part of the Bill of Rights, but there is no question that the architects of our government believed that the people in armsthe militiawere the final guarantors of our freedom. Any subsequent reinterpretations of that amendment must start with the fact that our leaders, fresh from their experiences in the Revolutionary War, relied on the militia as the centerpiece of our national military establishment. The concept of the militia and the right to bear arms are inextricably joined. pages 112-113 122. These Militia Acts of 1792, were amended by the Militia Act of 1862 (12 Stat. 597, enacted July 17, 1862), which allowed African-Americans to serve in the militias of the United States. They were supplemented by the Militia Act of 1903, which established the United States National Guard as the chief body of organized military reserves in the United States, but which maintained the balance. 123. On April 23, 1808, a Militia Act of 1808, was passed entitled An Act Making Provision for Arming and Equipping the Whole Body of the Militia of the United States which established factories, sites, and arsenals to manufacture the individually carried arms needed by the infantry, and that a plan was initiated to be able to arm all citizens by providing these arms to the states, and thence to the militias. While this was an ambitious plan, the arsenals were never able to supply even a fraction of the arms required due to the explosive growth of the nation, and as each citizen was to be armed, the responsibility to obtain arms fell to the citizen as the Federal government was incapable of producing arms fast enough. 124. The Militia Acts of 1792, Militia Act of 1795, and Militia Act of 1862 created a militia that grew historically ineffective as time went on. By the time of the SpanishAmerica War the militias were poorly maintained, poorly disciplined, and essentially impossible to control as a cohesive military force. The Militia Act of 1903, bifurcated the militia, and retained the original citizen militia of 1792, but brought forth out of it also a National Guard force that was now called the Organized Militia. 125. A very important Constitutional aspect of the Dick Act was that the original militia (of all citizens, required to possess or keep arms) established in 1792 continued unmodified, and were not disbanded, and these citizen members were not disarmed or disbanded, and indeed upon passage of the Dick Act was a CMP program through the U.S. Army to re-arm the unorganized citizen militia members in a way that they were actually sold gun directly from federal armories. It is notable that to this day, a U.S. Citizen ho is not otherwise disqualified may purchase dozens of assault rifles directly out of military reserve stocks. 126. The militias were divided into "divisions, brigades, regiments, battalions, and companies" as the state legislatures would direct. The provisions of the first Act governing the calling up of the militia by the President in case of invasion or obstruction to law enforcement were continued in the second act. Court martial proceedings were authorized by the statute against militia members who disobeyed orders.

- 27 -

127. The Militia Act of 1903 (32 Stat. 775), also known as the Dick Act (also known as the Efficiency of Militia Bill H.R. 11654, of June 28, 1902), was initiated by United States Secretary of War Elisha Root following the SpanishAmerican War of 1898 (Ten Week War), after the war demonstrated the profound weaknesses in a militia call-out, and in the serious weaknesses in the entire U.S. military as well. 128. On February 5, 1900, the Secretary of War, Elisha Root published a report in regards to the post Spanish-America War regarding status of the Organized Militia/National Guards, and the status of the unorganized militia (the rest of the citizens). This letter may be found as House Document No. 388, Fifty-sixth Congress, first session and is described by the author as an abstract of the militia forces of the United States and based on a study spanning from 1898 to 1899, and published in 1900. For example, for the Commonwealth of Massachusetts this abstracts lists a total of 5,185 members of the organized militia, and 453,537 of the unorganized militia. The report further states that the grand aggregate numbers of the nationwide organized militia was 106,339 members, plus 10,343,152 members of the unorganized militia. This report to Congress further details that of the 106,339 organized militia members that 93,812 (88.2%) were designated for infantry service, which proves that the militia is primarily infantry in nature, and thus infantry weapons the most natural arms for militia service. As the report designates that there were 106,339 organized militia members and 10,343,152 members of the unorganized militia that roughly for every 98.2 citizens who was in the unorganized militia that there as only one in the organized militia 129. Indeed, the appalling performance of the U.S. Militia forces in the Spanish-American War proved to be a decidedly unreliable fighting force, and in 1901, President Theodore Roosevelt declared: "Our militia law is obsolete and worthless," and an effort was undertaken to immediately refresh the Militia by way of increased funding and updates Militia Laws (which became the Militia Act of 1903), established dual-enlistment, and the harmonized the state militias under federal Army training standards, arms, and procedures. 130. The comment by President Theodore Roosevelt is heralded by some critics of the militia as repealing or nullifying the Militia Acts of 1792, but the Militia Act of February 2, 1901 merely affected cavalry troops (not the unorganized militia), it did not repeal the Militia Acts of 1792, and indeed to this day the Militia Acts of 1792 remain generally intact, although amended. 131. In 1898 the National Guard was still governed by the amended Militia Act of 1792 and almost completely funded, organized, and administered by state governments. But the mobilization of state military forces for the Spanish-American War in 1898, while much more effective than the mobilizations of 1846 and 1861, did clearly demonstrate that the Guard was not a reserve force fit for modern conditions. As a result, most of the units organized for the war had a cadre of Guard officers and noncommissioned officers and large numbers of enlisted men with no prior military training. Federal service revealed that the training of Guardsmen in all aspects of military operations was, for the

- 28 -

most part, grossly inadequate to the demands of active duty and extended field operations. 132. The Act formulated the concept of the National Guard and ensured that all state military forces were simultaneously dual reservists under the authority of the Army Reserve. This last measure was to prevent state governors from using National Guard forces as "private armies", in many ways as had been done in the American Civil War with the militia and to ensure that the President could, at any time, mobilize state military forces into the federal armed forces. 133. A great factor in the Militia Act of 1903 was the German analysis of the SpanishAmerican War, where under Kaiser Wilhelm II (1900): The invasion of the United States was considered vital by many within the reticent German General Staff. The plan was of great detail, and it included an attack on America's Eastern Seaboard with 60 ships and 100,000 men. They planned to start off by shelling Manhattan and capturing Boston. - Hew Strachan, The First World War: Volume I: To Arms', (Oxford, 2003) 134. In 1903, Eberhard von Mantey, a war planner with the German Admiralty Staff, wrote in his diary that the: "East Coast is the heart of the United States and this is where she is most vulnerable. New York will panic at the prospect of bombardment. By hitting her here we can force America to negotiate." - Jonathan Lewis, The First World War 135. Imperial German plans for the invasion of the United States were ordered by Germany's Emperor Kaiser Wilhelm II from 1897 to 1903. Wilhelm II did not intend to conquer the US; he wanted only to reduce the country's influence much the same way that the British had humbled the rebellious Americans for invading Canada in 1812. His planned invasion was supposed to force the US to bargain from a weak position; to sever America's growing economic and political connections in the Pacific, the Caribbean and South America; and to increase Germany's influence in those places. The first plan was made in the winter of 18971898, by Lieutenant Eberhard von Mantey; it mainly targeted American naval bases in Hampton Roads in order to reduce and constrain the US Navy and threaten Washington, D.C.. In March 1899, after significant (yet arguable) gains made by the US in the Spanish American War, the plan was altered to focus on a land invasion of New York City and Boston. In August 1901, Lieutenant Hubert von Rebeur-Paschwitz spied on the target areas and reported back. A third plan was drawn up in November 1903 by naval staff officer Wilhelm Bchsel, called Operation Plan III (Operationsplan III in German), with minor adjustments made to the amphibious landing locations and immediate tactical goals. The Imperial German Navy under Alfred von Tirpitz expanded greatly from 1898 to 1906 but was never large enough to carry out the plans. The German Army under Alfred von Schlieffen, responsible for at least 100,000 troops in the invasion, was certain the proposal would end in defeat. The plans were

- 29 -

permanently shelved in 1906 and did not become public until 2002 when they were rediscovered in the German military archive in Freiburg. -- Sietz, Henning (8 May 2002). "In New York wird die grte Panik ausbrechen: Wie Kaiser Wilhelm II. die USA mit einem Militrschlag niederzwingen wollte" 136. U.S. Senator Charles W. F. Dick, a Major General in the Ohio National Guard and the chair of the Committee on the Militia, sponsored the 1903 Act towards the end of the 57th U.S. Congress. Under this legislation, passed January 21, 1903, the organized militia of the States were given federal status to the militia, and required to conform to Regular Army organization within five years. The act also required National Guard units to attend 24 drills and five days annual training a year, and, for the first time, provided for pay for annual training. In return for the increased Federal funding which the act made available, militia units were subject to inspection by Regular Army officers, and had to meet certain standards. 137. The Militia Act of 1903 was greatly in response to the fears of Germans troops invading the United States by way of the North East, starting with Boston and the bombardment of New York City, with the German invasion force actually using Boston as the primary invasion point and then sweeping 100,000 armed German troops into the Boston area as the initial invasion force. 138. The Militia Act of 1903 still retained the militia, but took a small percentage of this militia and formally converted these to Organized militia with rigorous courses of study that is essentially based on the regular military forces, while the rest of the citizenry remains in the original militia defined in 1792. Indeed, even to this day the militia remains as all citizens who are capable of bearing arms, even the elderly, infirm or disabled. Paradigm Shifts of the Militia 139. The community based militias as they were established in 1792 progressively fell into poor discipline over the ensuring 68 years, and weekly or monthly militia musters (for some U.S. Citizens) devolved into little more then drinking and hunting parties, and in some cases fugitive squads, runaway slave hunting and lynching parties, and in no way did they resemble any sort of cohesive group capable of military operations 140. The community based militia were of tremendous value during the War of 1812, when the militias (using their own personal arms) almost overnight become a fighting force of over 450,000 fighters to supplement the roughly 7,000 professional soldier in the Army at the time, and provided the British with a second statement of independence. While the militias responded enthusiastically to the call to arms to defend their shores, their enthusiastic numbers (of close to a half million) were an utter fiasco due to disorganization as very few citizens had taken militia or military service with due seriousness. While one in thirty-one American militia members died, compared to the British casualties of one in roughly eighteen (the British were 172% more effective in combat). The British marshaled a combined fighting force of roughly 29,200 and the

- 30 -

Americans of roughly 470,000 (a 16:1 ratio), and the British causalities were remarkably low, the assaults on U.S. cities and forts devastating and the U.S. Militia could not muster, mobilize or move fast enough to repel the British. The War of 1812 served as an utter humiliation to the United States, and also to Britain and Canada essentially ended in a stalemate, burning and sacking of Washington DC, and then a Treaty, but no actual definitive winner. 141. Indeed, at the end of the Battle of Yorktown (during the Revolutionary War), Benjamin Franklin is quoted as saying: "The War of Revolution is won, but the War for Independence is yet to be fought." This War of Independence did not stimulate hostilities until 1807 (when England imposed trade restrictions in the United States, and began harassing American Ships), and then the United State (in error) declared war and instigated open warfare in 1812 due to American military incursions into Canada. 142. While the cause of the War of 1812 is academic, from a military perspective the only reason that the British attempted to chastise and humble the Arrogant Americans ultimately failed was the mobilizations of the well-armed citizen militia (with their own weapons), which the British had utterly not expected. It was thus, that America established, finally that she as utterly independent from England, and not merely in revolt or insurrection. However, in the writings of military leaders after the War of 1812, there was expressed a desire (as early at 1816) to form the militias into a more formidable and cohesive force, and not merely roving bands of hunters. Militia Laws of the United States and of the Commonwealth of Massachusetts 143. In 1840, in the book Militia Laws of the United States and of the Commonwealth of Massachusetts, together with extracts from the United States and State Constitutions, in relationship Thereto written by Henry A.S. Dearborn, Adjutant General of Massachusetts (a military commander for the Commonwealth) the issue of the militia was commanded, desired, and empowered in a way that had not been performed previously. This short book in included with this pleading as [Exhibit 1]. 144. The Senate and the House of Representatives of Massachusetts resolved (March 24, 1840) that this book be published by State printers (and as to be possessed by all Militia Officers), and that this book defined the militia and the laws of both the Commonwealth and of the Federal government as they applied to the Commonwealth. There is no record of the resolve that created and published this book was ever reversed or dissolved. Commonwealth of Massachusetts IN THE YEAR ONE THOUSAND EIGHT HUNDRED AND FORTY. RESOLVE CONCERNING THE LAWS RELATING TO THE MILITIA. Resolved, That the Adjutant General be, and he is hereby required, to prepare and cause to be printed in a convenient form, a digest of the existing laws of the Commonwealth, in relation to the Militia, and to forward copies of the same to all the Commissioned Officers of the Militia of this Commonwealth, and to the Assessors and Town Clerk of each Town.

- 31 -

House of Representatives, March 24, 1840, Passed ROBERT C. WINTHROP, Speaker. In Senate, March 24, 1840, Passed DANIEL P. KING, President March 24, 1840.- Approved. MARCUS MORTON. 145. In the past (post-1792, pre-1840) books of military science had been quite scholarly and well written, but they did not rise to become actual law in a meaningful way, nor were they previously so forcefully ordered and imposed on the militia by their commanders by operation of the legislature. The majority of these books from 1792 to 1840 were primarily written for military officers, and not the individual militia members). With this book by Dearborn in 1840 [Exhibit 1], the Commonwealth of Massachusetts, through its own Militia Commander became the first State to directly address this in a meaningful way, in a way that was actually useful to, and which could be understood the general citizenry (who were the actual Militia). 146. This book is notable as it was authored, published, and entered as a statute AFTER the War of 1812, but prior to the beginning of the Civil War (of 1861), and that it exceeds the persuasive value of a merely scholarly article on the topic at the time, and rather it is an actual Commonwealth of Massachusetts statue and law on the topic for that period of time. 147. Under Article 10 of the Massachusetts Constitution of October 25, 1780 the author described that the individual citizen only obtains their right to life, liberty, and property by providing his personal service in the defense of others (by way of militia service, or its equivalent). Is this passage as included in the state as la, thus, Massachusetts became the first state to mandate that citizenship as contingent on militia service. 148. The same author explains that under Article 17, the people have a right to keep arms. as The Supreme Court of the United States would in later years rule that the people means individual citizens and not the collective people when this Article written in 1840 (by the Commander of all Militia forces in the Commonwealth) spoke to individual rights and individual responsibilities and not collective rights and responsibilities. 149. On page eight (8) of this book, the author presents extracts from the Constitution of the United States (which went into operation March 4, 1789). To the left of the entry on regards to the Second Amendment the author has listed this Amendment is in regards to the Right to Keep Arms. Not only has the 57th Congress, and the Supreme Court defined this Right to Keep Arms as an individual right, but also it is to listed in this military law book as a individual right and responsibility. 150. In the lead up to the Civil War (1850-1861), and during the Civil War itself (18611865), the community based militia groups were often used by community leaders as their own personal armies, and members of the judiciary in the South used unlawfully them to enforce slave codes.

- 32 -

151. In the post Civil War period, the militias of the South were used to persecute the newly freed negroes and to engage in acts of organized insurrection, requiring that the U.S. Army intervene to enforce the law upon state and country officers, and quite often judicial officers who were using their local militia, which resulted in the ratification of the 14th Amendment (in 1868). 152. On page 9 of this book it is listed that Every citizen to be enrolled with certain exceptions, in accordance with the Militia Act of May 8, 1792. These arms and their accouterments were to be supplied by the citizen, based on their rank and position in the Militia. 153. On page 10, it is forcefully stated that And every Citizen so enrolled and providing himself with the arms, ammunition and accoutrements required, as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes. 154. In even the most liberal reading of page 10 still clearly requires the citizen to procure and to maintain their own arms, essentially the state-of-the-art assault weapons of their era. 155. The Massachusetts Militia Laws, of April 24, 1840, section 5 provides (essentially draft registration): Every able-bodied white male citizen, resident within this Commonwealth, who is or shall be over the age of eighteen years, and under the age of forty five years, excepting persons enlisted into volunteer companies, persons absolutely exempted by law, idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime in this or any other state, shall be enrolled in the militia. 156. The Massachusetts Militia Laws, of April 24, 1840, section 36 through sections 42 provides requirements that the militia members themselves provide ammunition, arms, uniforms, and other accouterments. 157. In Section 43 of the same Massachusetts Militia laws of 1840, it is listed that the Commonwealth is to provide rifles, muskets (shotguns), sabers, belts, swords, and pistols, but the armories of the Commonwealth and the local town or city armories lacked sufficient arms to provide for only a small fraction of the militia of all citizens. Indeed, when the Civil War broke out on April 12, 1861 (21 years after this Massachusetts Militia Statute as passed), the Commonwealth still lacked the ability to arm the entire militia, and many members of the militia were issues pointy sticks instead of rifles. 158. In Section 99 of the Massachusetts Militia laws of 1840 listed punishments for members of the militia who came to drills and inspections and their own personally owned arms were inspected, not the Government arms.

- 33 -

"Sec 99. Every non-commissioned officer or private, who shall appear at any inspection on the last Wednesday in May, or at any company training, or at any inspection and review, whose equipment are deficient, or of a bad quality, shall forfeit and pay the sums hereinafter mentioned, for each of the following articles deficient, of a bed quality, or in bad condition: A musket, a bayonet, or belt, an iron or steel ramrod, either or all of them, one dollar. A cartridge box and twenty-four cartridges, suited to the bore of his musket, and containing a proper quantity of good powder and ball, and a serviceable knapsack, either 01' all of them, thirty cents ; provided, nevertheless, that the ball cartridges may be produced and kept, according to the provisions of the eighty-third section; and the knapsack may be dispensed with at company trainings. Two spare flints, a priming wire and brush, either or all of them, twenty cents; provided, that none of the above forfeitures shall be incurred by any private, in a rifle company, who appears with a good rifle and powder horn, knapsack, shot pouch, and a quarter of a pound of powder, and twenty balls suited to the bore of his rifle. In any company raised at large, for deficiency or bad quality of the uniform of the company, two dollars. In any company of cavalry, for deficiency of a sword or sabre, belt and pistols, all or either of them, one dollar. Of any other article of equipment, fifty cents. In any company of artillery, for deficiency of a sword and belt, all or either of them, one dollar. Of any other article of equipment, thirty cents. In a Company of .riflemen, for a deficiency of a rifle, and a sufficient ramrod, both or either of them, one dollar." pp 46-47 159. Massachusetts Militia Laws, of April 24, 1840, General Order No. 2 (page 95-96), Adjunct General Dearborn states: As there is not a sufficient number of sabres, pistols, swords, and rifles, for supplying all the companies of cavalry, artillery and riflemen, they will be distributed by lot, - and the remaining companies furnished, whenever the requisite number shall have been received from the United States for that purpose. (emphasis added) 160. As the various Militia Acts have required all citizens above a certain age to be a member of some level of the militia, and requires that ALL militia members (and hence, all citizens) to be currently self armed with actual modern assault weapons, ammunition, and accoutrements or accessories.

- 34 -

161. Then as described in M.G.L. Chapter 35, Section 34 entitled Property exempt from execution these arms, which the entire body of the population (with a few minor exceptions) are exempt property. 162. As the National Guard of Massachusetts (as do the National Guards of many other states) does not permit National Guardsmen to bring their own government issued weapons and arms from home, and they do not permit National Guard weapons to be removed from the armories to be storage or kept by the Guardsman in their own home. 163. Thus, M.G.L. by way of Chapter 35, Section 34 acknowledges that the Militia is not the National Guard by virtue of the militia member having a direct personal property interest in the arms that they possess in the home for militia duty. In short, the arms described by Chapter 35, Section 34 described arms in the hands of the citizen militia member, and that all citizens above a certain age are members of the militia. Ergo, these exempted arms prove that the Commonwealth of Massachusetts recognizes the regular militia (described elsewhere in the statute as the unorganized militia). [ the arms and accoutrements required by law] 164. The Militia Law text published by the Commonwealth also mandates the keeping of swords at the bottom of pages 9, and on page 11, the requirement of other elements of the militia to self acquire and self possess a pair of pistols, holsters. Breastplate and cruppers, boots, a saber and certain ammunition loads for the pistols (24+ pistol rounds). 165. On page 17, or the statue, the author lists the Militia Act of April 23, 1801, but all that this Act did was establish Federal Armories, and fund supplying federal arms to the militia members and some of the arms being brought to muster were not suitable for military use due to disrepair. 166. One page 20, the author present chapter 12 of the revised statutes of Massachusetts Militia Laws (effective April 24, 1840). 167. On page 21, under the Section Entitled Enrolled Militia there is a list of citizens qualified to service in the militia Every able-bodied white male citizen, resident within this Commonwealth. But it is also notable that Massachusetts directly prohibited certain disqualified certain citizens from any form of militia service to include women, blacks, Orientals, and also idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime in this or any other state Section 5 168. Under Section 8 of the Act, The militia, thus enrolled, shall be subject to no active duty whatsoever except in case of war, invasion, or to prevent invasion. In the Militia Act of 1903 these became the Reserve or unorganized militia. 169. Under Section 10, of this book the Volunteer Militia become the fore-runner of the National Guard, but the enrolled militia as clearly define to be separate from the Volunteer Militia

- 35 -

170. On page 31 of this book the arms of the militia are further defines, between what is required that the militia member purchase and provide themselves, and what items will be provided by the state. Sec. 39. Every officer of the line and staff, and every officer and soldier of any company raised at large, shall provide himself with an uniform complete, which shall be such as the commander in chief shall prescribe, and subject to such restrictions, limitations, and alterations as he may order ; and every such soldier deficient therein shall be liable to the penalty provided in the ninety-ninth section. Sec. 40. Every non-commissioned officer and private in a company of cavalry shall furnish himself with equip a serviceable horse, at least fourteen hands and a half high, a good saddle, bridle, mailpilion and valise, holsters, and a breastplate and crupper, a pair of boots and spurs, and a cartouch box to contain twelve cartridges suited to his pistols, and shall be liable, for. Deficiencies at any parade, to the forfeitures provided in such case in the ninety-ninth section; and if any unprovided commissioned officer or private shall, for more than three months, be unprovided with a horse and equipments as aforesaid, the commanding officer of his company may apply to the commanding officer of the brigade, who shall discharge such non-commissioned officer or private from such company. 171. Also on page 31, under Section 41, it is listed that a company of artillery shall posses the field pieces, and thus defines that which is not considered an individual and personal arms, and those items which were not typically individually possessed or owned (such as large artillery and cannons, thousands of pounds of cannonballs, and hundreds of pounds of gunpowder). Although, if a citizen of 1840 wished to invest in their own personal cannon, or pieces of artillery they were permitted to do so by law. 172. Page 32, continues to define that the volunteer militia would be provided arms by the state, but that these arms were to eventually be returned to the state (and not taken home). 173. Thus, the members of the regular militia were required to possess personal militia arms, as were members of the Volunteer Militia. However, when the volunteer militia were mobilized they left the personal arms at home, and utilized state arms instead (or stored the personal arms they brought with them at the armory, in order to use government arms when such were available) . This is notable as both classes of militia were still required to maintain or to keep arms at home and to muster with them for drill. 174. What is quite important in this book is that citizen militia members of either the regular militia (all white male citizens), or member of the volunteer militia (or all citizens) could be punished with fines for not having the requisite items in their personally supplied possessions, or having their personally owned and kept arms and accessories in proper condition and level of cleanliness and serviceability.

- 36 -

The Post Civil War Militia Reconstructions 175. In the post Civil War Reconstruction (post 1865) there was a revival of sorts of the community and local based militia and to reestablish them as a formidable force of armed, and well trained citizens, with better controls, better rules, improvement in militia laws, a better defined structure, standardized training and drills, but a paucity of enthusiasm as the nation was still in grieving over the losses of the Civil War. 176. As the U.S. Navy had started an emergency buildup of Naval power after the SpanishAmerican War of 1898, and in 1903 the Militia Act being passed, along with the U.S. setting up the CMP program (as part of the Militia Acts of 1903), and selling or giving arms to all U.S. citizens; the Germans and later the Japanese switched their attentions away from invading the United States, and instead focused on European domination, instead of global domination, thus leading to World War I. a. Christian News, a Lutheran journal published in New Haven, Missouri, US, published the following item in its Feb. 4, 2002 issue: "In 1960, Robert Menard was a commander aboard the USS Constellation when he was part of a meeting between United States Navy personnel and their counterparts in the Japanese Defense Forces. "Fifteen years had passed since VJ Day, most of those at the meeting were WWII veterans, and men who had fought each other to the death at sea were now comrades in battle who could confide in each other. "Someone at the table asked a Japanese admiral why, with the Pacific Fleet devastated at Pearl Harbor and the mainland U.S. forces in what Japan had to know was a pathetic state of unreadiness, Japan had not simply invaded the West Coast. "Commander Menard would never forget the crafty look on the Japanese commander's face as he frankly answered the question. " 'You are right,' he told the Americans. ' We did indeed know much about your preparedness. We knew that probably every second home in your country contained firearms. We knew that your country actually had state championships for private citizens shooting military rifles. We were not fools to set foot in such quicksand.' " 177. Also, in 1903 there as a tremendous political and social push for Colleges, Universities, Military Academies, and even High Schools to establish rifle and pistol clubs, and shooting teams, all equipped with the rifles and ammunitions being given away to schools as part of the Dick Act. 178. The Germans in 1924, then revisited the invasion of the United States, and began to rebuild their devastated military and manufacturing facilities in the lead up to World War

- 37 -

II, with an eye of first dominating Europe, then England, and then invading the United States, again by way of Boston and other major cities in the North East. Three Classes of Militia 179. The three classes of militia described in the Efficiency of Militia Bill H.R. 11654, of June 28, 1902 provided for are the organized militia, henceforth known as the National Guard of the State, Territory and District of Columbia, the unorganized militia (consisting of all citizens between the ages of 17 and 45, or 65 if they are a veteran of the regular military, or they volunteer for duty) and the regular army (which is a standing army which now includes the Army, Navy, Marines, and Air Force). 180. For example, in 1902 the Massachusetts Militia was split into two segments, one would be called the National Guard (also known as the organized militia), and the other the unorganized militia. 181. Nothing changed for the unorganized militia from 1792 to 1902, merely that a person could in 1903 enlist in the National Guard if they wished to be more then just the unorganized militia, but did not wish to join the full Standing Army. National Guardsmen also did not have to supply their own arms and ammunitions starting in 1903, like the unorganized militia was required by law to do. 182. Further, from 1792 until the present day (2012) nothing has changed for the unorganized militia which still exists, and is an entity recognized by both Federal and State Statute. 183. Additionally, the requirements of the Militia Acts of 1792 required that citizens provide their own arms, and with the passage of the Militia Act of 1903 this requirement was not lifted; so that members of the unorganized militia were and are still are required to have arms of their choosing, suitable for militia service this includes the unorganized militia of the year 2012, who are required to possess assault weapons. 184. The regular Army was to be armed from the armories of the Federal Government, the National Guard from state held armories, and the unorganized militia from their own personally possessed arms and ammunition (which they are mandated by law to possess, and which the U.S. Army could sell directly to them at a deep discount). 185. The militia thus encompasses every able-bodied citizen (of both genders) between the ages of 17 and 45 (or 65 in the case of a veteran or volunteer). 186. All members of the unorganized militia have the federal responsibility, absolute personal right, and 2nd Amendment right to keep and bear arms of any type that is bearable and useable by the individual militia member, as they can afford to obtain and become skilful with.

- 38 -

187. As some citizens are not financially capable of purchasing a $16,000 custom fitted sniper rifle, with a $10,000 optical scope and a $63,000 thermal sight, plus a custom fitted shotgun, and a brace of custom pistols, it became (and still is) important to allow the citizen to purchase the arms most suited to their pocket book. 188. Purchase of the arms themselves is only part of the burden of the unorganized militia members, they must also obtain ammunition to use for practice at the range (at costs which can well exceed the cost of the arms the ammunition it is used in), then they must possess those accessories needed to render the arms suitable for military usage, such as silencers, flash suppressors, scopes, bayonets, and so forth. Ultimately, the base cost of the firearm, is a fraction what the U.S. citizen in the unorganized militia must invest in. So, for this reason, arms decisions are left to the discretion of the individual citizen how will arm themselves to the capabilities of what each citizens own finances will allow and permit. The Bright Line of Bearable Arms 189. The bright line as it were with the keeping and bearing of arms under the 2nd Amendment is that the arms had to be bearable by an individual militia member or soldier, and they it had to be operational by the same single person. Thus field artillery, canons, mortars are not generally operable by a single soldier, and such certainly can not as a class be moved or operated by a single soldier of the field of battle, whereas a 10 pound shotgun, or a 15 pound individually issued battle rifle can be (a younger militia member would have no problems bearing a 50-75 pound rifle, whereas an old militiamen could be able to carry a 15-20 pound firearm). 190. For example, a U.S. Army M198 howitzer artillery piece weighs around 16,000 pounds, and it requires a 9-man crew to fire it, and a heavy lift cargo helicopter to transport it into the field. As the Supreme Court notes, this is not the type of bearable infantry arms (carried by one person) that the 2nd Amendment protects automatically. 191. Even the very small cannons of the Revolutionary War, the wheeled, carriage mounted cannons required 12 soldiers to operate, Each cannon would be manned by two gunners, six soldiers, and four officers of the artillery, and transported by limbers and a team of horses or oxen. Certainly not the type of arms borne or kept by the individual militiamen, and most certainly unsuited for defending the home and hearth. Many of these colonial canons where multi-ton Queens of the Battlefield were usually owned by the state or town militia or Continental Army, not owned individually by citizens (unless the individual was wealthy enough to own several cannon of their own, and had teams of horses to move them, and the extensive manpower to operate them). 192. There are documents in the U.S. Congressional Records and Debates of the personal and legal ownership of small cannons by wealthy militia members to include canons that fired three to twelve pound cannon balls.

- 39 -

193. Nonetheless, while the large cannons belonged to the state or local militia as a whole, and the individual militiamen was required to provide their own clothing or uniforms and accessories, and supplied their own arms and ammunitions for the personal firearms they carried. As the large cannons could not be carried into battle by the militiamen, it was not included in the arms which they were required to bring when mustered forth for service. 194. Indeed the Militia laws at the time required a citizen provided a musket or rifle, and a pistol, powder, adding, flints, ammunitions and accessories suited for military service, but it says nothing about the citizen showing up for militia muster with a 6 ton cannon and few hundred 8 pound cannon balls and kegs of gunpowder as these could not be moved or carried into the military movements with the same ease as a militiaman arms with several long guns and pistols, bayonets, and other arms. Modern Arms and Ammunition 195. To understand the colonial militia, and the original meanings and the original requirements, it is important to recognize that the unorganized militia were expected to show up and to be armed with modern (colonial era) military arms and ammunition, capable of engaging a modern enemy at extended distance, and great overwhelming wave of defensive force against any invasion or insurrection. 196. To this end, the arms had to closely match what the active duty military was currently using, or when possible to be a higher quality, capable of higher precision, and significantly longer distances. 197. It is important to note that a modern, standard issue Remington .300 Win. Mag. or .338 Laupa Magnum rifle is designed to engage targets beyond 3000 feet, and at this range engaging human sized targets routinely. On the other hand, the AR-15/M-16 may only have a practical range of 300 feet. It would therefore be wise for prudent militia members who provide his own arms to muster with an AR-15/M-16, a suitable shotgun, and if possible, a Remington .300 Win. Mag. (plus a .308 Win conversion bolt) or .338 Laupa Magnum rifle, and of course two matching pistols that can handle military ammunition (usually 9 mm or .45 ACP). Of course, they will also need to muster with the appropriate accessories, magazines, suitable clothing, food, ammunition, boots, and so on. 198. Thus, to understand the modern (2012) militia, we need only to examine those modern arms, used by the modern militaries of the world; to seek out all of the individual equipment that an individual soldier of the United States Military force would be outfitted with for individual and personal use, and then for the militiaman of the modern age to possess types similar to those, and when possible the same models, caliber, and so forth to closely be in line with that already in use. 199. It is also prudent not only for the arms of the militia to possess arms of similar type, model, or caliber of that used by the U.S. military, but also the arms potentially individually used by the soldiers of a potential invading force that would need to be

- 40 -

repelled. Tactically, this places the modern militiaman in a superior position on the field of battle as he or she would possess arms capable of handling U.S. ammunition, but also to collect and utilize the ammunition found on the battlefield that was in use by the invaders. 200. Therefore, we must look at the arms, which an adversary of our country might give their invading force, and our own militiamen must have arms to support these foreign ammunition supplies. 201. To this end, the United States Army, has published Field Manuals on the AK-47 and other weapons systems of adversaries, and U.S. forced practice and drill with these weapons, and thus they are regarded as arms of the militia, and defacto arms protected as militia arms. 202. Further, the modern militiamen must not only be an expert in their on arms but must have familiarity with the invaders arms, as those foreign arms and ammunition may at a point become the only arms available to the U.S. militiamen. 203. These foreign arms must include those weapons and ammunition of any country that could possibly launch any assault upon the United States. Additionally, this must include countries belligerent toward our country, regions becoming hostile to the United States, and sadly the arms of our closest allies. Diplomacy between friendly nations has historically twisted in the winds of time, and the closest of our allies could turn into our bitter adversaries, in the space of only a few of decades, or even years. Colonial Arms and Ammunition 204. The key to understanding the meaning of the 2nd Amendment in view of the Colonial Revolution, is to see the bright line articulated by the 1st and 2nd Congress is to observe that the farmers and hunters were the militia members and they often carried multiple long guns or muskets (rifles and shotguns) with them while hunting, and which they then carried the same arms into battle and into skirmishes. 205. Indeed, history tells us that military tactics used by the Colonial Militiamen, involved fast moving small units, that used cunning, skill, resourcefulness, and multiple arms (often 2, 3, and even 4 muskets per militiamen) against the British who themselves went to battle by sheer brute force and proper military etiquette, with a single musket her soldier, while the Colonial Militiamen functioned more as a collection of semiindependent guerilla warfare units, and skilled hunters capable of hunting rabbit, deer, moose, wolves, ducks, turkeys, and even British Red Coats. The Colonial Armies and Militiamen acted as colonial hunters of men, not as soldiers, but by this method, of unconventional warfare excised the British from our lands. The British officers were actually incredulous by way the Militiamen of the 1700s refused to fight properly.

- 41 -

206. The colonial militiaman also would be armed with a brace of pistols to use in close quarters, a selection of knives and hatchets, and often a long saber. All of these arms being bearable by a single citizen from his home to the field of battle. 207. The key to understanding the 2nd Amendment is to understand the two words to bear as a militiamen can not bear a 16,000 pound howitzer, but they can however, bear a 15 pound rifle, or even a 45-50 pound rifle, but not much beyond that, and they must also bear bayonets, ammunition, accessories, food, water, and things to sustain them in the field. 208. Thus, the words of the 2nd Amendment of to keep and bear arms can be simply and logically reduced to the keeping of arms that were bearable into battle or skirmishes by the militiamen, carrying individually born (or carried) personal weapons and ammunitions. a. Long-barreled muskets were the initial weapon of choice by infantry soldiers from both the British and Continental armies. Many muskets were fitted with a bayonet, which allowed soldiers an additional attack method in close combat without expending additional (very costly, and very scare) ammunition. Muskets used by the continental army were large caliber (.62 to .80) and heavy (eight to twelve pounds). As a bayonet is a vital part of any militia weapon, any state statue that required that this or attachment points be omitted from a firearm is unlawful and unconstitutional as its omission makes the weapon less suited for military use. Indeed in modern times, unlawful state statutes have be passed that removed certain features such a military bayonet lugs, military flash-hiders, and normal sized military issue magazines so as to deprive the citizen from arms useful in militia service (even though such statutes are unlawful under Federal and Constitutional Law, and thus the state statute utterly null and void). b. One of the most common and effective muskets of the American Revolution was the Brown Bess. Used by both the American and British and could be loaded with a single shot or grape shot (multiple balls, for use as a shotgun). This weapon had a short range and was inaccurate (as most muskets were). First used in 1768, the British used this musket throughout the American Revolution, The War of 1812 and the Napoleonic Wars. The weapon was slow to use and reload, thus requiring multiple muskets be carried to sustain sustained rates of fire, and it as not until these long guns became rifled that they became a formidable long distance weapon. With the modern militia, two long guns are desirable to be able to engage their opponent at variable ranges (perhaps one rifle, and one shotgun). Thus, the militiaman may have both an M16/AR-15 and a 12-gauge shotgun, and perhaps a bolt-action hunting or sniper rifle for extended range shooting. c. Both swords and Tomahawk axes were used throughout the revolution as a secondary impact weapon. Sabers were large, curved swords often used by generals and other officers to provide direction during battle, but they would also be used by the ordinary militiaman as a lethal weapon.

- 42 -

d. The colonial flintlock pistol was often used as a secondary weapon, while reloading the long guns and muskets. Pistols during the Revolutionary War era were quite inaccurate, and only suitable in very close quarters. Thus, the modern militiamen will need to pistols capable to either 9 mm or .45 ACP military ammunition, and in line with what is currently or historically issued to the U.S. Military. e. Faults not withstanding, the Revolutionary War era, American arms were state-ofthe art at the time, and the arms possessed by modern day unorganized militiamen must also equally be state-of-thearm, and appropriate for repelling a well armed foreign invader or for quelling internal insurrection. f. Thus, every modern state-of-the-art sophisticated weapon designed for individual use that is currently and in production for the use by the U.S. Military or any U.S. police force or police department must be accessible or bearable by a U.S. Citizen who must be permitted to possess those same arms, or better. 209. The Militia Act of 1903 was indirectly used by the Executive Branch of the government during Civil Rights demonstrations during the 1960s. Many southern governors, chief among them George Wallace, attempted to use state National Guard forces (organized militia) to block civil rights and desegregation initiatives. In these cases, whenever a governor called up the National Guard for use in blocking federal directives, the President promptly mobilized and then federalized the National Guard into the Army Reserve, placing the Guard commanders under direct federal authority, and subject to court martial should they not carry out executive directives from the President. 210. I assert, as does the Supreme Court of the United States, that the active duty military and Reserve Duty components are not the unorganized militia, and the state National Guard are not the unorganized militia; and that the unorganized militia can not be deployed into foreign lands like the active duty, reserve duty, and National Guard; and that the unorganized militia is constricted to function only domestic defense and to obey the lawful commands of the Commander-in-Chief (the President of the United States, and arguably the Governor of a state) and the officers that he or she may appoint over the militia. 211. I assert that the Supreme Court in Miller has recognized that Moreover, the duty to keep arms applied to every household, not just to those containing persons subject to militia service. Thus, the over-aged and seamen, who were exempt from militia service, were required to keep arms for law enforcement and for the defense of their homes from criminals or foreign enemies. - United States v. Miller, 307 U.S. 174, 179-80 (1939) (internal quotation marks omitted). See Kates, 82 Mich. L. Rev. at 215-16. 212. Given that females and negroes are currently given the same rights, privileges, and immunities of white males in the United States in later years, that that are equally empowered to possess arms, and to take part in the unorganized militia, and to possess

- 43 -

arms, and to keep arms, and the bear arms both in their own defense, and in the defense of this nation. 213. Membership in the unorganized militia, and the right to keep and to bear arms is a defacto right of all citizens, and a requirement and responsibility of citizenship. All Citizens are Obligated to Possess Arms, Not Only the Militia Members 214. As the Supreme Court in United States v. Miller, Nordyke v. King, Presser v. Illinois, and Maryland v. United States has ruled that it is actually a legal duty and obligation of all citizens to possess arms, and that these arms are even to be kept by the over-aged and retired veterans, and not only restricted to only the militia ages, and not only to white males of militia age. Thus all citizens of both genders who are 17 years of age or older, are compelled by law to maintain personal arms, ammunition, and accessories of their choosing, suitable for militia service. 215. While certain federal and state statues forbid possess of arms by citizens between the ages of 17 and 20, those statute become null and void by operation of the Supremacy Clause of the Constitution of the United States, the 10th Amendment, the 14th Amendment, and in turn the 2nd Amendment. Indeed, as a citizen who is 17 years of age is by law required to be in the unorganized militia, and thus is permitted by Supreme Law to possess arms within the home, and to carry those arms upon their person as a full right, privilege, and immunity and indeed must do so as an obligation to the Constitution. 216. Massachusetts in 1632 required each person to "have ... a sufficient musket or other serviceable peace for war ... for himself and each man servant he keeps able to beare arms. In the Code of 1672, men were to provide their own arms, but arms would be supplied to those citizens unable to obtain them. 217. In terms of modern, State-of-the-Art arms this would include, but not be limited to individually bearable arms to include a modern semiautomatic battle rifle such as the Semiautomatic Colt AR-15 or M-16 rifle in .223, plus a Mossberg 590 or Remington 870 or 11-87 12 gauge shotgun, and two identical semi-automatic pistols of the same style of type used by the military currently (such as the Berretta M9/92F or the SIGARMS M11/P226, or the Colt 1911 or other .45 caliber handgun). 218. Additionally, some members of the unorganized militia may also own highly sophisticated (and very costly) long-range precision sniping or hunting rifles such as the Remington Model 700, 40-X, or M21 in .300 Win Mag., .308. Win. or .338 Lapua Magnum as sold to the U.S. Military (and which may be purchased as a hunting or target rifle). Perhaps even a member of the unorganized militia may also possess a Barrett M107A1, along with appropriate bayonets, field knives, and other suitable other arms. All of which may be carried and operated by a single individual militiamen, and all of which is protected by Constitutional Law.

- 44 -

219. There is also the issue of ammunition with the unorganized militia, where they must bring sufficient ammunition of their own, along with magazines, carriers, pouches, cleaning kits, and other accessories to supply and maintain their arms during the initial emergency or invasion, and then to have their ammunition supplies refreshed in due time from state or federal supplies, or from ammunition picked up on the battle field (from fallen foes). 220. Those unorganized militia members who are not able to purchase state of the art weapons may still arm themselves with older battle rifles and other arms and accessories directly from the U.S. Army, through the CMP for very small amounts of money, and are allowed (at present) to purchase up to 12 battle/assault rifles per year if they so wish. 221. The U.S. Government clearly seeks and indeed requires a well-armed militia (in three tiers), including a well-armed unorganized militia, to the point that the U.S. Government directly sells battle rifles and ammunition to citizens for use in potential defense of the country. 222. On the other hand, the current politicians and the judiciary of the Commonwealth of Massachusetts endeavor to unlawfully infringe on the right of the federal government to have an unorganized militia that is well armed and skilled. 223. Further, the Commonwealth of Massachusetts subverts national security, and subverts the security and integrity of the nation in the name of political gain (albeit, unlawful gain). 224. Further, the Commonwealth of Massachusetts seeks to restrain, deprive, and interfere with the defacto right of the citizens to possess such arms, and has confected an unlawful scheme of licensure to deprive citizens of this right. 225. The Commonwealth of Massachusetts maintains and enforced constitutionally offense statute, operates an unlawful discretionary licensing scheme, and actively and aggressively deprives citizens of the United States their right to keep arms and to bear to arms, either in their on defense, or on defense of the state. Decades of Prior Statutes, Case Law, and Points of Authority, Mandate the Public has Access to Arms 226. I recognize and assert that under United States v. Miller, Nordyke v. King, Presser v. Illinois, and Maryland v. United States and under Federal Law, I am constitutionally compelled to maintain my own personal arms, ammunition, and accessories suitable for militia service. 227. I also assert that by operation of the Supremacy Clause of the United States Constitution, and the 2nd, 10th, and 14th Amendment that I am compelled by constitutional law and by the opinions of the Supreme Court and Congress, and thus I am legally required and bound to obey the Constitution of the United States and to utterly

- 45 -

ignore any Federal or State statues which conflicts with the Constitution of the United States by function of the Supremacy Clause. 228. I assert that in Maxwell v. Dow, 176 US 581 - Supreme Court 1900 at 597, that the Supreme Court ruled: In Presser v. Illinois, 116 U.S. 252 (1886), it was held that the Second Amendment to the Constitution, in regard to the right of the people to bear arms, as deemed at that time to be a limitation only on the power of Congress and the National Government, and not of the States. It was therein said, however, that as all citizens capable of bearing arms constitute the reserved military force of the National Government, and thus the States could not prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government. 229. The U.S. Supreme Court decision in Presser v. Illinois was quite explicit in that is goes to the Federal Requirement to keep arms and in fact the opinion reads thus the States could not prohibit the people from keeping and bearing arms an opinion which is quite powerful in how a small number of states like Massachusetts that unlawfully interferes with the citizens being armed and are actually interfering with and damaging our nations vital defenses, and doing so for political and monetary gain. 230. Further, that in McDonald (2010) and Heller (2008) this was explicitly expanded to also include the Second Amendment rights toward individual states in order to define the rights of citizens, and to clear up any confusion. 231. Since the signing of the 14th Amendment, this has always applied directly to the states, but explicit judgment on the matter was weak until McDonald in 2010. 232. In Heller (2008) at 2805, Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. Then in Heller at 2808, In Houston v. Moore, 5 Wheat. 1, 24, 5 L.Ed. 19 (1820), this Court held that States have concurrent power over the militia, at least where not preempted by Congress. Agreeing in dissent that States could "organize, discipline, and arm" the militia in the absence of conflicting federal regulation, Justice Story said that the Second Amendment "may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested." Id., at 51-53. Of course, if the Amendment simply "protect[ed] the right of the people of each of the several States to maintain a well-regulated militia," post, at 2822 (STEVENS, J., dissenting), it would have enormous and obvious bearing on the point. But the Court and Story derived the States' power over the militia from the nonexclusive nature of federal power, not

233.

- 46 -

from the Second Amendment, whose preamble merely "confirms and illustrates" the importance of the militia. Even clearer was Justice Baldwin. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has "a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either." 234. Thusly, I also assert that the effect of McDonald (2010) and Heller (2008) when combined with Maxwell and Presser is to ensure the all citizens capable of bearing arms of all genders and ages constitute the militia, and that the militia is a duty to the General Government and that possession of arms is not only a right, immunity, and privileged, but also a legal obligation (as per the Supreme Court). 235. I recognize that in the Supreme Court case of Dred Scott v. Sandford, 60 U.S. 393 (1856), that the Dred Scott Decision observes that a U.S. Citizen are able keep and bear arms, and that they may bear these arms from state to state as a full liberty, or pass, or passport, or special laws, or regulations. who were recognized as citizens in any one State of the Union ... the full liberty ... to keep and carry arms wherever they went. 236. I also recognize that most of the earliest gun-control legislation at the state level was the "black codes" that replaced the "slave codes" after the Civil War. These unlawful statutes were nothing less that a mechanism to prevent blacks' from having access to the full rights of citizens, including the right to keep and bear arms. Laws of this type later used racially neutral language to survive legal challenge, but were expected to be enforced against blacks rather than whites. 237. I also understand that an appeal from Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), a decision in which the United States Court of Appeals for the District of Columbia Circuit became the first Federal Appeals Court in the United States to rule that a firearm ban infringes the Second Amendment to the United States Constitution, and the second case to expressly interpret the Second Amendment as protecting an individual right to possess firearms for private use. The first recent federal case that directly interpreted the Second Amendment as protecting an individual right was United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). 238. In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defense" and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right (even though it only applied to whites, and not to blacks):

- 47 -

"The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!" 239. Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations." 240. Congress enacted the Freedmen's Bureau Act on July 16, 1866. Section 14 stated: "[T]he right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens ... without respect to race or color, or previous condition of slavery. ..." 14 Stat. 176-177.

Education, Training, and Experience Based Expert Observations 241. Based on my education, experience, and training I recognize that in a national emergency (such as an invasion or insurrection) that it would be logistically impossible to initially arm the militia out of the Federal and State Armories as the combined inventories of both lacks sufficient arms, ammunition, and accessories to arm all citizens between the ages of 17 and 45 or older. 242. Even if the federal and state armories did contain sufficient arms for the militia members for the entire country, it would be impossible to distribute them in a timely manner to the militia, and in all likelihood the armories would be attacked, sacked or destroyed by an invading force or seized by insurgents or insurrectionists as this is a standard tactic of warfare. 243. I also know, that based on my military service, and consulting projects with emergency agencies that the United States Government maintains regionally distributed, classified armories that will assist in arming a very small percentage of the militia, but

- 48 -

that these armories and caches would only be able to initially arm a fraction of the organized militia, and virtually none of the unorganized militia in a meaningful way. 244. I know that these weapons include at least the M1 Grande, the M1A/M-14 Rifle, the M16 and AR-15, the M-60 Machine Gun, the M2 Machine gun, M-79 and M-203 grenade launchers, and a variety of military shotguns and military revolvers and semiautomatic pistols. 245. Thus, in order to call out, to muster, to draft, to mobilize, to arm the militia, and to effectively control and utilize the unorganized militia there is a requirement the individual citizens themselves must possess suitable arms, ammunition, and accessories or otherwise the militia will be useless, and thus relegated to fighting invaders with sharpened sticks and rocks. Realistic Un-Organized Militiamen 246. I have reviewed the U.S. Census bureau statistics and it reveals that in Rockport, MA that there are roughly 4,893 members of the unorganized militia. 247. In Gloucester, MA, the U.S. Census also reveals roughly 18,481 members of the unorganized militia. 248. Thus the local combined total of members of the unorganized militia in my local community is 23,374 member of the unorganized militia which could be mustered out for emergency military service in the unorganized militia in a matter of hours, provided that politicians, and members of the state judiciary who seek to subvert nation security in the interest of political gain have not unlawfully disarmed them. 249. There is also no longer a National Guard Armory in the City of Gloucester, or the Town of Rockport, nor in any nearby and accessible city, by which members of the militia of Rockport or Gloucester to arm themselves in the event of insurrection or invasion. 250. I have also reviewed the U.S. Census bureau statistics and it reveals that in the Commonwealth of Massachusetts that there should be roughly 4,313,635 un-organized militia members (less the roughly 8,200 National Guardsmen of Massachusetts) of the unorganized militia each possessing (as required by federal law) arms, ammunition, and accessories to sustain themselves in military action when they are called up. It should be noted that there is only one member of the organized militia (National Guard) for every 526 members of the unorganized militia. 251. I have examined the income accounting for the Town of Rockport and for the City of Gloucester and have determined that by analyzing the fees paid to the City/Town for FID and LTC (gun permits) there would appear to be less then 2000 citizens between the two cities who are allowed to keep arms (many of whom have a pistol only, and no long guns, rifles, or shotguns, and likely only a single box of ammunition, and not of a military

- 49 -

caliber or type), a short fall of 21,374 citizens or roughly a 1 to 117 ratio. Where only one local unorganized militiaman would be armed with a pistol, and the other 100+ unorganized militiamen would be armed with pointed sticks and perhaps small rocks. Given the ratio of handgun versus revolver ownership, the ratio of long guns would likely be only 1 in 400 citizens in these areas. 252. A local, Boston area TV station called Channel 5 WVCB, recently obtained firearms licensing statistics from the Massachusetts Firearm Records Bureau, which lists that out of 6,547,629 citizens (of all ages), only 254,653 Class A License to Carry Firearms (only 3.88% of the population) have been issued by the state, upon which they produced a TV news report. (re: http://www.wcvb.com/news/investigative/Number-ofgun-licenses-in-Massachusetts-shoots-up/-/12520878/17217164/-/pen6nf/-/index.html). 253. Given that the population of Massachusetts: 6,587,536 (2011 est.) based on the "Annual Estimates of the Resident Population for the United States, Regions, States, and Puerto Rico: April 1, 2010 to July 1, 2011 - 2011 Population Estimates. United States Census Bureau, Population Division. December 2011." 254. It is thus fairly academic to split out the population into the age ranges and types of the militia by using the 2010 U.S. Census record: http://www.census.gov/prod/cen2010/briefs/c2010br-03.pdf Massachusetts - 2010 Census Full Population 6,547,629 Male Population Female Population 3,166,628 3,381,001

Age 18-44 (Militia 1) 2,410,178 (1,165,633 Males - Approx.) Age 44-65 (Militia 2) 1,815,804 ( 878,176 Males - Approx.) Militia Ages (18-65) 4,225,982 17 Year old Full Militia (17-65) 87,653 Approx. (42,391 Males - Approx) 4,313,635 Approx. (for Massachusetts, M+F)

255. Only 254,653 (per "Mass Firearms Records Bureau") of these (5.9%) have a license to carry arms, when federal law mandates a nearly 100% possession of arms (in their individual homes) in the age range of 17-65, for militia service. 256. Thus, the Commonwealth of Massachusetts is depriving at least 94% (likely closer to 99% given the assault weapon bans) of the population of a civil right, and depriving the United States of America of a required unorganized (and pre-armed/self armed) militia.

- 50 -

257. There are roughly 4.31 million citizens in the Commonwealth who are members of the unorganized militia (less a very small number of National Guard and Active Duty or Reserve military) who are required by law to maintain militia arms in their home. 258. Of course, a small percentage of these citizens are unfit for military service due to legal, ethical, physical and mental health disabilities. 259. Thusly, the Massachusetts scheme of arms licensure serves only as a mechanism to deprive the citizenry their right to arms, and more chillingly to deprive the U.S. Government of an armed unorganized militia that the Federal Government or State can muster to defend against invasion or insurrection. 260. Again we look towards Heller at 2815-2816, We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." 307 U.S., at 179, 59 S.Ct. 816. The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra

261. The Heller court at 2817, also wisely observes that sophisticated arms are required by U.S. citizens to be of value in an unorganized militia. Thus, this strikes down and instantly voids all assault weapon bans within the Commonwealth of Massachusetts, New Jersey, New York City, California, and other States that are in rebellion to the Constitution: It may be objected that if weapons that are most useful in military serviceM16 rifles and the likemay be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the

- 51 -

conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. pp 2817 262. I am aware of the case of United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), in which the government was represented, but Miller himself was long since deceased, and was not represented by any attorney to argue before the court, and no briefs were filed on Millers behalf. Essentially, the Supreme Court at that time ruled in a vacuum of facts and was not made aware of certain vital evidence that the government possessed and was concealing about short-barrels shotguns that were currently in use by the military at that time (which was the base argument in Miller), and which had been in use at the time, and actually in widespread U.S. military use. The Court erred in not recognizing that a short-barreled shotgun was a defacto military arm at the time, issued to U.S. soldiers for trench warfare. a. Benedict Crowell, Assistant Secretary of War (1919). America's Munitions, 1917-1918. Government Printing Office, Washington D.C.. pp. 185186. "When American troops were in the heat of the fighting in the summer of 1918, the German government sent a protest through a neutral agency to our Government asserting that our men were using shotguns against German troops in the trenches. The allegation was true; but our State Department replied that the use of such weapons was not forbidden by the Geneva Convention as the Germans had asserted. Manufactured primarily for the purpose of arming guards placed over German prisoners, these shotguns were undoubtedly in some instances carried into the actual fighting. The Ordnance Department procured some 30,000 to 40,000 shotguns of the short-barrel or sawed-off type, ordering these from the regular commercial manufacturers. The shell provided for these guns each contained a charge of nine heavy buckshot, a combination likely to have murderous effect in close fighting." b. On pp 177, it is revealed by the Assistant Secretary of War that America is a nation of Crack Shots and the long rifle was bonafide military arms: America since the days of Daniel Boone a nation of crack shots was naturally the home of good rifles. Hence perhaps it is not surprising that the United States should be the nation to produce the closest shooting military rifle known in its day This was the United States rifle model of 1903 popularly called the Springfield.

- 52 -

c. It is also notable that on pp 187, the Assistant Secretary of War discusses the military value of revolvers and semi-automatic pistols as bonafide military arms: The American pistol was one of the great successes of the war. For several years before the war came the Ordnance Department had been collaborating with private manufacturers to develop the automatic pistol but none of our officers realized until the supreme test came what an effective weapon the Colt 45 would be in the hand to hand fighting of the trenches. In our isolation we had suspected perhaps that the bayonet and such new weapons as the modern hand grenade had encroached upon the field of the pistol and revolver. We were soon to discover our mistake In the hands of a determined American soldier the pistol proved to be a weapon of great execution and it was properly feared by the German troops. We had long been a nation of pistol shooters we Americans but not until the year 1911 did we develop a pistol of the accuracy and rapidity of fire demanded by our ordnance experts The nations of Europe had neglected this valuable arm almost altogether regarding it principally as a military ornament which only officers should carry The result of Europe's neglect was that the small caliber revolvers of the Germans and even of the French and English were toys in comparison with the big Colts that armed the American soldiers. America owed the Colt 45 to the experiences of our fighters in the Philippines and to the inventive genius of John Browning of machine gun fame In the earlier Philippine campaigns our troops used a 38 caliber pistol Our soldiers observed that when the tough tribesmen were hit with these bullets and even seriously wounded they frequently kept on fighting for some time What was needed was a hand weapon that would put the adversary out of fighting the instant he was hit whether fatally or not We therefore increased the caliber of the automatic pistol to 45 and slowed down the bullet so that it tore flesh instead of making a clean perforation These improvements gave the missile the impact of a sledge hammer and a man hit went down every time. d. Then turning back to pp 171, the Assistant Secretary of War reviews the U.S. Inventory of Machine Guns and Sub Machine Guns, including machines guns that could be borne or carried into the field on battle by a single soldier, and then operated by a single soldier as an individually served weapon. As this 37-pound or the lighter 15.5 pound weapon (the size of the service rifle) may be borne by a single soldier it (and a large number of other modern weapons) is thus a suitable arms for the unorganized militia and a defacto type of arm protected for individual ownership by the 2nd Amendment:

- 53 -

But America's greatest feat in machine gun production was the development of the Browning weapons. These guns as has been noted were of three types the heavy Browning water cooled gun weighing 37 pounds for the use of our troops in the field the light Browning automatic rifle weighing 15.5 pounds and in appearance similar to the ordinary service rifle, also for the use of our soldiers fighting on the ground 263. Indeed, upon consideration of the report issued by the, of Benedict Crowell, Assistant Secretary of War (1919). America's Munitions, 1917-1918. Government Printing Office, Washington D.C. It can be confirmed that a wide range of individually portable arms are suitable for ownership and/or possession by law abiding citizens, to include, but not be limited to rifles, shotguns, short barreled rifles, short barreled shotguns, pistols, revolvers, light weight machine guns, sub machine guns, service pistols, bayonets, knives, grenades, tear gases, and a wide range of other normal arms of the militia that are suited for individual use, and which are individually bearable by a single militiamen, or modern soldier. 264. Should the weapons or arms not be individually bearable then it falls outside of the Constitutional protections of the 2nd Amendment which applied to bearable arms and not canons, heavy artillery, tanks, and arms not designed, developed, or deployed to be individually bearable. 265. This provides use with a very clear, concise, and a very common sense aspect to the argument of what arms are fit for Constitutional protection, and the common sense answer is quite evident to be the arms carried into battle by a single soldier, and which are individually borne on the battle field, and any such weapon or type of weapon, or derivative of weapon is automatically protected, which heavier or larger arms others are not. 266. To bring this argument forward in time to the modern day, one needs only to review the arms used in World War II, the Korean War, Vietnam, and to the Gulf Wars to find types of arms that are suited for protection by the Second Amendment and the various Militia Acts. 267. Additionally, while serving in the Active U.S. Air Force, I was from time to time armed with a short barreled shotguns, and can attest that they are in fact a bona fide military weapon in common use in the military. 268. Additionally which serving on active duty I was also armed with AR-15, M-16, and M1A/M-14 Rifles, also with various pistols and revolvers, and several models of grenade launchers. All of which were individually issued, and individually carried, and all of which are well suited for militia service. 269. In addition, while attending tactical training outside of my active duty military training, but while under contract to the U.S. Government, I also visited the factories of U.S. Firearms manufactures who supply short barreled shotguns to the U.S. Military, and

- 54 -

I was training on their tactics, usage, repair, and maintenance. This included the short barrel shotguns of Mossberg, Remington, Winchester, Savage, and Heckler and Koch. 270. The Supreme Court in Heller guides that: the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: Then the court goes on to list restrictions on the mode of carry For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. This is not to say that arms may be restricted from being carried, merely that the state may regulate if arms may be carried openly, or if they are to be carried concealed, but the court emphatically says that all citizens must be allowed carry arms unless they suffer from specific legal disqualifications, and the state may not infringe upon this right (the state is allow only to dictate is arms may of openly carried, or carried concealed, but are forbidden to control IF those arms are carried). 271. The Heller court then addresses the matter of certain citizens being disqualified from arms, but they did not provide an exhaustive list, but rather The Courts opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, Then the court addressed the issue of prohibited locations: or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings and then addressed the control of retail transactions: or laws imposing conditions and qualifications on the commercial sale of arms. These disqualifiers are enumerated in detail in federal statutes, and form the exhaustive list referred to by the court (a full listing of these disqualifications can be found elsewhere in this paper). 272. Essentially, the only element which the Supreme Court allows the state to legally regulate to a limited degree is the control of retail sales of arms, designation certain prohibited areas (within reasons), and to regulate the mode of carry (within reason). 273. The court in Heller also mentions Millers holding that the sorts of weapons protected are those in common use at the time finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Where the court speaks quite powerfully about arms being in common use they speak of the period of time when Miller was argued, and now in the present day they speak of the arms in common use by the military, police, and private citizens. 274. More importantly in Heller, there is a distinction between bearable arms and arms which are not bearable or which are highly unusually to be stored in the home. 275. The Second Amendment would of course, not protect a thermo-nuclear bomb as it is not a generally available common military item as the numbers used are quite small, and a 6000 pound warhead can not be carried or maintained by a sole militia member. 276. Even in regards to very small man-portable versions of these nuclear weapons, these are not arms that would be are normally carried, nor deployed, nor issued to normal infantryman, and that they are essentially suicide bombs due to the radiation exposure

- 55 -

involved in carrying one. An example is the Mark 54 (or W54) Special Atomic Demolition Munitions that weighs 150 pounds, as designed to be transported by a single (very strong) soldier and deployed by parachute or submarine, but to actually use the munitions a second soldier as required. Nevertheless, the soldier who carried this 150pound package would be subjected to lethal radiation levels, and death due to radiation exposure form the nuclear fuel. The warhead itself was only 51 pounds, with the remaining weight shielding, control devices, and packaging. Even when repacked into the M-388 round for use against tanks and other armor, the round still required three soldiers to launch or deploy, even though a single soldier could transport the warhead. Thus, nuclear weapons fall far outside the scope of the Second Amendment, until technology advances sufficiently to permit a nuclear warhead to be carried and operated by a single soldier. 277. Indeed in federal statute, the classifications of bearable arms is made quite clear as ultimately the argument in Heller is what may be kept in the home, what is bearable and what is not, and then what is unusual and what is not. The Importance of The Militia 278. In A Letter from Inquiry Into The Importance of The Militia, A Letter From William H. Sumner, Adjutant General Of The Commonwealth Of Massachusetts, To John Adams, Late President Of The United States; His Answer. 1823 All nations, to maintain their independence, must at least, possess the means of defence; and, those, who have not the advantage of our local situation, cannot long expect to retain it, without the power of annoyance, also. The militia is intended for defence only; standing armies for aggression, as well as defence. The history of all ages proves that large armies are dangerous to civil liberty. Militia, however large, never can be; for it is composed of citizens only, armed for the preservation of their own privileges. In time of war, the army should be increased in proportion to external emergencies; and, in peace, it should always be so reduced, as not to excite any apprehension of danger, from its power, to constitutional freedom; but, it does not thence follow, that the militia should also be reduced. On the contrary, in proportion to the want of the means of resistance, aggression is encouraged ; and therefore, as the army is diminished, the militia should be cherished. These principles appear to have been well understood, formerly in this state; but a change in the opinions of the people seems to be commencing, founded on the erroneous notion that the militia is a military institution merely, of no use in time of peace. They who reflect upon the principles whereon the militia was predicated, will at once perceive that this opinion is fraught with danger to our civil rights ; while those, who have adopted the error, do not confine their plan of reduction to this establishment. Some of them advocate the abolition of the militia, without an increase of the army; and with some, the army not only is to be disbanded, but the militia, also. The main defences of the country, are to be wiped away, as with a sponge, the marine only excepted- Notwithstanding the navy by its skill and gallantry, fought itself into

- 56 -

the favour of the administration, as the army did of the people; yet, I fear, that even this favourite arm of defence, is less indebted to our political sagacity for its preservation, than to the Algerines and pirates, who have given occasion for its constant employment. It is hoped that the danger to the public safety from external causes, and the encouragement to domestic licentiousness, which it is apparent would immediately follow the adoption of these schemes, will prevent it; but, the very propositions themselves, shew in how little estimation those military attainments are held, by many, which it has cost the nation a hundred millions of dollars, and some of its best blood to acquire. pp 8-9 One of the designs of keeping the militia constantly organized, armed and trained, was to save the expense of maintaining a large regular force. The plan was predicated upon the principle, that the people should defend their own homes; not that they should be called away for the defence of others. It teaches them their dependence upon their own exertions, and makes them ever watchful of danger to those interests, for the protection of which, none feel so great a solicitude as themselves. Thus it is, that, always prepared to resist aggression, they are able to pursue their domestic avocations and agricultural pursuits, for the support of their families, upon the very soil which they may be required to defend. Pp 16-17 In Boston the militia is well disciplined, and could be mustered in an hour, upon any signal of an approaching enemy; and in six hours the neighboring towns would pour in a greater force than an invading enemy will bring against it. "The same remark applies to Salem, Marblehead, and Newburyport, places whose harbours render an invasion next to impossible. In all of them there are, in addition to the common militia, independent corps of infantry and artillery, well disciplined and equipped, and ready, both in disposition and means, to repair to any place where invasion may be threatened, and able to repel it, except it should be made by a fleet of heavy ships, against which nothing, perhaps, would prove any defense, until the enemy should land; when the entire militia would be prepared to meet them. pp 17 279. I am aware that during the War of 1812, during the "Second War of Independence against Britain. Only days after the British invaded Washington, D.C. and burned the White House, they also attacked Rockport, MA, and barraged the city with canon fire, and invaded and took prisoners. I am also aware that, the Rockport Militia operated a small fort at the end of Bear Skin Neck which they armed with cannons, and the fort was taken by the British, when the militia was found to all the militiamen be sleeping in the fort. Then the British snuck into the city on a barge (which sunk) as they bombarded the Town churches and other buildings. Thus, Rockport, MA has a defacto history of post colonial era foreign invasion, and a demonstrated need of a well armed militia (obviously one that needed cannons at the time, and militiamen not to be sleeping on duty).

- 57 -

Armaments of the Modern Militia 280. I have visited the battlefields and monuments on the Battlefields in Concord and Lexington Massachusetts a number of times, and upon my observing the monuments and statues on display I was able to see that the Minutemen and Militia members were armed with what would have been considered a modern arms for their period, and that they are not armed with a pointed stick, or a rock. Further that these arms closely match the arms that were carried into battle by the British at the time, and the bona fide military assault weapons of their age. 281. I have also spoken to the colonial era historians in regards to the weapons and tactics used in Lexington and Concord by the militia and the Minuteman, and I understand those matters as they may apply to weapons of the 20th and 21st century. 282. Based on my education, experience, and training I recognize that the modern militia members must be armed with modern military arms, or with arms which can handle modern ammunition, and preferably standardized military arms, and standardized military ammunition, and standardized accessories, and certainly all calibers of small arms utilized by the current U.S. military or arms or ammunition involved in the Civilian Marksmanship Program (CMP). 283. Based on my education, experience, and training I know that the standard military or militia individual issue of ammunition is 210 rounds (7 magazines, of 30 rounds per magazine) of .223 Rem. rifle ammunition for a scoped M16 or AR15, and that this is the standard issue for all U.S. infantry forces, along with extra rifle ammunition in boxes in order to reload the magazines. This is the type and standard amount of ammunition and magazines an unorganized militia member would be expected to turn out with when called for duty (also known as a muster). 284. Based on my education, experience, and training I know that the standard issue for pistol ammunition is three to five magazines, each of 15 rounds (45 to 75 rounds in magazines), plus an extra box of 50 rounds to be able to top of the magazines as they are expended. This is the standard amount of pistol ammunition a militia member would be required to turn out with when called. 285. Based on my education, experience, and training I know that the standard issue for shotgun ammunition is 10-50 boxes of 5 rounds each to be able to top off the shotgun magazine as they are expended. The typical load of ammunition for a soldier with a shotgun in combat is 250 rounds. This is the standard amount of shotgun ammunition a militia member would be required to turn out with when called. 286. Other arms of the militia involve similar or higher quantities of magazines and ammunition, the above three are merely illustrative of minimal levels, as one person would be expected to provide these three or similar weapons, and ammunition and magazines or other accessories as detailed above.

- 58 -

287. Additionally, sound suppressors or so called silencers have now become standard issue with U.S. Combat troops, and are generally accepted as a legitimate tool of warfare, and thus proven to be a legitimate device or accessories for militia members to purchase as accessories for their militia arms. Massachusetts State statute forbids possession of such things, and thus the statute is void ab initio and in conflict with Federal Law and the Supremacy Clause, as these devices are bona fide military individual issue military items used by infantry forces. 288. I hereby assert that for me to be proficient with arms that regular practice is required, and to be able to do this, suitable militia arms, ammunition, and accessories must be possessed by me. The right to keep and bear arms by the militia is vital to the security of a free state 289. As the right to keep and bear arms is integral to the Constitution of United States and that it is vital to the security of a free state, then under 10 USC 333 the President acting as the Commander-in-Chief is legally empowered to use military force or to call out the militia to restore Constitutional Law both in the Commonwealth of Massachusetts, New York, New Jersey, Maryland, Illinois, DC, and California, and several municipalities who are in open rebellion at this time in regards to the Constitution and the Second Amendment and Fourteenth Amendment since the Heller and McDonald Supreme Court decisions (in which over two dozen Commonwealth Statutes are in conflict with the Supreme Court, and Congressional interpretations of the Constitution, and are thus those statutes are void ab initio. Citizen Ownership of Arms is a Required Element of National Defense 290. As the Second Amendment has been formally applied to the states, and the arming of the militia is something that the United States Supreme Court and the United States Congress has designated as being a required element of national defense or of a free state violation of this requirement by the individual states is an act of insurrection and rebellion. _________________________ JAMES M. ATKINSON (978) 546-3803 jmatk@tscm.com

- 59 -

EXHIBIT 1
Militia Laws of the United States and of the Commonwealth of Massachusetts, together with extracts from the United States and State Constitutions, in relationship Thereto written by Henry A.S. Dearborn, Adjutant General of Massachusetts, 1840.

- 60 -

EXHIBIT 2
A Letter from Inquiry Into The Importance of The Militia, A Letter From William H. Sumner, Adjutant General Of The Commonwealth Of Massachusetts, To John Adams, Late President Of The United States; His Answer. 1823 FROM WILLIAM H. SUMNER, TO JOHN ADAMS. LATE PRESIDENT OF THE UNITED STATES. Boston, May 3d, 1823. SIR, IN an address to governor Brooks, accompanying my last annual return of the militia of this commonwealth, I made some observations on its condition, of which I beg leave to enclose to you a copy. My public situation has made it particularly necessary for me to investigate the uses of the militia, as a military institution ; but this is not the only light in which it should be viewed. Its effects on the manners, habits and laws of our ancestors, are easily traced ; the advantages resulting to us from the application of their principles, by the convention which framed the constitution, to our new condition under it ; the continued influence of the militia in producing pride of character, respect for authority, obedience to the laws, and a just subordination among the people, are reasons of sufficient weight to make it questionable, whether it ought to be considered of the most importance as a civil or a military institution. Yet, as, in the first point of view, it is now hardly ever regarded, and, in the second, in my opinion, not sufficiently so, I beg leave to trouble you with some rem'arks on its utility, in both respects. Besides the consideration of individual respect, my particular inducement to address you on this subject, arises from the sense I entertain of its importance, the open manner in which the militia has been assailed, and, the belief I have, that you will afford your support to an institution, the maintenance of which, appears to be essential to the preservation of our civil rights. The pilgrims, who landed at Plymouth, seemed to have

- 61 -

been fully possessed of the value of military science ; for they brought out a military leader, as well as ministers and elders with them, knowing that they should not be able to enjoy the rights of conscience, and their spiritual privileges, without the aid of temporal power. Their danger from the Indians convinced them, that this was a subject which was not to be left to accidental acquirement; and, in fifteen years after their landing, captain Myles Standish and Lieutenant William Holmes, were appointed " to teach the use of arms for the towns of Plymouth and Duxbury." These officers were each allowed a salary of 20 sterling a year, "to be paid in corn or beaver, as it should then pass." As the settlement in other towns increased, provision was made for their instruction in like manner. To encourage attention to the subject, military attainments were made the ground of honorary titular distinctions which were allowed by the express grant of the civil government. It is remarkable, in the early old colony records to observe, that those who filled important civil offices are noticed by the appellation of Mr. only, while such as held military commissions were always distinguished by the titles which their rank conferred. In founding their military establishments upon the love of distinction, which animates mankind to the most extraordinary exertions, our ancestors discovered that accurate knowledge of the human character which deserves the consideration of their descendants. The charter of the school for military discipline, which was granted in Plymouth in 1642, is so instructive on the point of the application of many of those principles, which will always be necessary for making good citizen soldiers, that I cannot forbear to notice its leading characteristics. It provides, " That the officers should be chosen by the association, and approved by the court. " That their exercise should be begun and ended with prayer. " That they should have a sermon preached to them once a year, on the election of their officers. " That none should be received into the company, but such are honest and of good report, freemen and not

- 62 -

servants ; and that they should be well approved by the officers, and the majority of the company. " That every man who should be admitted as a member, should be subject to the command of his officers, and every delinquent, and those who should not keep silence, or, who exercised jeering, fighting or quarrelling, should be adjudged guilty of a misdemeanor, and punished according to the order of military discipline, and the nature of the offence. " That every man who should be absent, except on good occasion, or the hand of God was upon him, should pay for his default ; and, if he refused, he should be distrained, and put out of the list. ** That every man who entered the military list, and did not provide his arms, should be put out of the list ; and that all who came with defective arms, should be fined sixpence for each article deficient. " That all that are, or shall be elected, chief officers of the military company shall be so titled, and forever afterwards be so reputed, unless he obtain a higher place. " That if any member of the company die, the members shall assemble with their arms, upon warning, and inter his corpse, as a soldier, according to his place and qualitie. " That none shall be taken into the company without being propounded, one meeting, before they shall be received; and, that none shall be admitted, who shall not first take the oath of fidelity." The same principles are contained in the grant of the first military company in Massachusetts, in 1638. That company is now composed of between two and three hundred members, who are principally active officers in the staff and in the line of the militia. They frequently meet together for drill and mutual instruction ; and the names of some of the most distinguished military commanders in our history are borne on its rolls. The patronage of all the branches of the civil government, afforded to their public ceremonies, which are performed, according to the requi-

- 63 -

sitions of their ancient charter, on the day of their annual election of officers, has now a most salutary influence on the militia, as well as on the institution itself, and makes the anniversary of the Ancient and Honourable Artillery Company one of the most interesting of our public festivals. Thus early, and upon these principles, were laid the foundations of the military taste and knowledge, which enabled Massachusetts to manifest that martial prowess for which her history, as a colony, is so much distinguished. In all combined operations, she was able to turn out more than her quota of men, besides undertaking important expeditions from her own resources. The organizing and officering, the arming and training of the people, gave them the ability to act with great celerity and confidence. Recruiting for any projected expedition was always easy, because all who joined it knew that they should do some good. Success was almost certain, because every one was determined not to sacrifice his domestic comforts, but for an important purpose ; and all felt, that the continuance of their civil privileges depended on the result of their efforts. Whether, therefore, we see the Massachusetts troops engaged with the wily Indian in untrodden forests ; embarking for foreign expeditions ; or assailing regular fortresses, we witness that subordination in discipline, which arises from a respect for authority ; that cooperation in effort, which is indispensable in all confederacies; and that patience in suffering, which a confidence in success, alone, can inspire. The security which religious freedom derived from the militia, in the early periods of our history ; the respect in which its leaders were held ; its effects upon the manners of the people ; the union of civil, religious and military authority in the same person, and the well tested security of this deposit of power, gave a civil importance and respectability to its institutions, which those, who laid the foundations of our political constitutions, knew how to value, and enabled us, who enjoy their beneficial influence on our habits and laws, justly to estimate. All nations, to maintain their independence, must at least, possess the means of defence ; and, those, who have not the advantage of our local situation, cannot long expect to retain it, without the power of annoyance, also. The militia is intended for defence only ; standing armies for aggression, as well as defence. The history of all ages proves that large armies are dangerous to civil lib-

- 64 -

erty. Militia, however large, never can be ; for it is composed of citizens only, armed for the preservation of their own privileges. In time of war, the army should be increased in proportion to external emergencies ; and, in peace, it should always be so reduced, as not to excite any apprehension of danger, from its power, to constitutional freedom ; but, it does not thence follow, that the militia should also be reduced. On the contrary, in proportion to the want of the means of resistance, aggression is encouraged ; and therefore, as the army is diminished, the militia should be cherished. These principles appear to have been well understood, formerly in this state ; but a change in the opinions of the people seems to be commencing, founded on the erroneous notion that the militia is a military institution merely, of no use in time of peace. They who reflect upon the principles whereon the militia was predicated, will at once perceive that this opinion is fraught with danger to our civil rights ; while those, who have adopted the error, do not confine their plan of reduction to this establishment. Some of them advocate the abolition of the militia, without an increase of the army ; and with some, the army not only is to be disbanded, but the militia, also. The main defences of the country, are to be wiped away, as with a sponge, the marine only excepted- Notwithstanding the navy by its skill and gallantry, fought itself into the favour of the administration, as the army did of the people; yet, 1 fear, that even this favourite arm of defence, is less indebted to our political sagacity for its preservation, than to the Algerines and pirates, who have given occasion for its constant employment. It is hoped that the danger to the public safety from external causes, and the encouragement to domestic licentiousness, which it is apparent would immediately follow the adoption of these schemes, will prevent it ; but, the very propositions themselves, shew in how little estimation those military attainments are held, by many, which it has cost the nation a hundred millions of dollars, and some of its best blood to acquire. . The great advocates for retrenchment in public expenditure seem to be governed by present impulses. They care not for the future, and hardly ever look back. If they did, the experience of the country would not be lost upon them ; for they would find, that although it required but one day to declare war, it took us two years to make it effectual. But so strong are their prejudices, and so determined are they, in their course, it is almost impossible to convince

- 65 -

them that we shall not have perpetual peace. If it were true that the heavens were so serene, as the millenists held, but a few weeks since, their argument would have no greater weight ; for in politics, as in nature, the greatest storms follow the stillest calms. But, if there are no black clouds portending thunder, there are certainly some white ones, indicating squalls, in our political sky. The length of time in which the temple of Janus has been shut, and the consequent increase of the means and objects of war ; the unprecedented claim of Russia to the exclusive navigation of the broad bays of the North Pacific, as her own narrow seas ; the imputed design of England to take Cuba under her protection ; the outlawry of representative governments, on the continent of Europe ; the indisposition of some of the nations to take the " sovereign prescription' 5 for maintaining the divine legitimacy of kings ; are causes, which will engage some of them in contests, deeply affecting our sympathies, if not our interests. Let not this nation, then, the spirit of whose free constitutions pervades all governments ; whose empire is extended to both oceans; whose commerce comprehends all seas ; whose flag floats triumphant and whose eagle soars high, deceive itself by a belief that it is not more likely, than heretofore, to be drawn into the vortex of contention, and that its views and power will not be more regarded, than they have been, in all the controversies of the great contending parties of the world. It can never be said that a nation, which derives its whole revenue from commerce, is too remotely situated to be involved by European contests. Whatever nations are engaged, our interests will be affected ; and, whenever England becomes a belligerent, we may expect a revival of our unsettled controversies about colonial trade, neutral rights and blockade ; and should she impress American sailors to man her fleets, however unwilling we may be to renew the tug of war with her, it is not to be expected that the national sentiment will again permit its. government to barter the liberty of its citizens for commercial gain. Aggression is provoked by weakness ; but, whatever may be the subject of our differences with any country, which respects our power, reconciliation may be hoped for, without degradation. But a nation which abolishes its War office, may as well discontinue its State

- 66 -

Department, also ; as they can discover but little ability in diplomacy, who have not the sanction of force at command. If the history of former times is lost upon us, the late admission by Spain, of the unexamined claim of the British to " forty millions of dollars," as an indemnity for losses by Spanish captures, teaches us how much it may cost an unarmed nation to purchase even the neutrality of a friend. Perhaps the history of the approaching war may disclose, that, even those who would consider it as ungenerous to assail a nation, which is fighting for the right of establishing the basis of its own government, will not fail to embrace so favourable an opportunity of extending their commercial monopoly to its foreign possessions, and of obtaining landed security for "their acknowledged debt." Prohibited as she is, from the sale of her manufactures on the continent, by a system more exclusive than that of Napoleon's, it is to be expected that England will seek new markets for the products of her industry. If, by extending her own, she can reduce the sales of her commercial rival ; if, by giving employment to her own ships she can exclude ours from the ports of Cuba, the trade to which employs more than one seventh part of the tonnage of the United States ; and if, in securing these commercial privileges, she can, at the same time, place herself in a situation to command the gulf of Florida, and watch the navigation of the Mississippi from the Moro Castle ; it cannot be supposed that the nation, which, however overburdened with taxation, has always maintained strong garrisons at Gibraltar, Malta, and the Cape of Good Hope, at an immense expense, will fail to embrace these advantages. By the possession of Cuba the British will be able, from the naval stations of Halifax, Bermuda and Havana, to form a blockading line upon our coast which would be almost irresistible. Surely these are great designs, and, if their accomplishment is incompatible with our rights and interests, furnish some reason why the national defences should not now be razed. The military position and trade of Cuba, make it desirable, if Spain is unable to retain it, that its independence should be guaranteed by both the British and American governments. There would, then, be but little danger of collision between them, from this source ; but, while on the one hand, if the United States were willing to add to its black population, by taking the island

- 67 -

into its confederacy, Great Britain would oppose it, so long as she intended to retain Jamaica : so, neither, on the other, can its surrender to that great naval power, be made, which, by its possession, could cut off the commercial intercourse between the different ports of our country, render one third part of our population, and two thirds of our territory dependent on it for the sale of their productions, and exclude the United States from a market, which employs, within six hundred tons, as much navigation as its trade to China, and all the ports of Russia, Prussia, Sweden, Denmark, Norway, the Hanse towns, Germany, Holland, the French, Spanish, Portuguese, and all other European ports in the Atlantic, except the British, without awakening a feeling that will unite the great agricultural, and navigating interests of the country in opposition to the policy which admits it. My object is not, however, to speak of particular causes for cultivating the resources of national defence at this time ; but, rather, to shew the necessity of always maintaining them ; and 1 have only referred to the late sudden change in the aspect of European affairs, as a fit example to illustrate my views. It is true, the policy of the United States is peace ; but, the policy of peace is as much without the control of nations, as the policy of war. The object of the one or the other, by any power, is the promotion of its own advantage ; and this is not always consonant to the views of the interested. When these are defeated, the policy of the nations will be changed ; not according to the will of all, but of either. Since, then, none can be sure of maintaining their peace, let us remember that preparation for war is its best preservative. It is but a few years since this sentiment was as generally entertained in this country, as in all others, which are governed by wise councils ; but, to abolish the militia, because there is no war, would be absurd. That reason is applicable to the reduction of the army ; but, the army and militia are raised from different causes ; and are supported upon different principles. They both contribute to the same end, in war, and with so extended a frontier, and indented a coast as ours, are, without doubt, both necessary for defence. The history of all ages shews that civil governments, of every form, are occasionally obliged to employ military forces for the preservation of their authority. In free governments, then, that kind of force should be maintained in peace, which is not

- 68 -

dangerous to liberty. But as military power, of some sort, must always be at the command of the civil authority, if the militia is to be abolished, the army should be increased ; for, however much we may dislike the character of the force, the preservation of our internal tranquillity, even, might demand its service. This very apprehension, that a necessity for employing the army in support of the civil power, might some time or other arise, it is, which has heretofore kept the militia in a respectable condition ; though now, strange as it may be, sentiments are openly promulgated respecting it, which no man, who valued his popularity, would have dared to express, even five years ago. It is time, therefore, that the public attention should be roused. This important interest should be looked at, in all its different bearings ; for, unless there is an occasional reference to the reason upon which even our most valuable institutions are founded, they are in danger of being obliterated. Changes in sentiment always effect alterations in laws. In free governments, they depend upon, and follow each other. If it be true, that " there is no danger from error of opinion, where reason is free to combat it ;*" it is equally as true, that unless reason does combat it, the error may prevail. Viewing the subject as important, and believing, that, strong as habit is, no system, however estimable, can be long upheld by its force, without a just reflection on its influence and uses, I am induced to make a cursory investigation of the leading objections which have been made to the militia, in order that their merit may be ascertained, or their futility exposed. The principal of these is to the trainings. This objection is urged by different people with different objects. Some, without reflection on their design ; some, from a belief of their inefficacy to accomplish it ; some, from contracted views ; and others, because they interfere with their personal enjoyments. To some, the noise of the drum and fife is ungrateful, in time of peace ; and in the opinion of others, the trainings introduce too much frolicking in the busy season of the year. The gentleman complains that they deprive him of the use of his servants, and dismount his coachman from the box when he wants to ride : the farmer, that the season of vegetation is short, and that they take his men from their labour, when it is most needed ; and some of the stockholders, in the great manufacturing establishments, are

- 69 -

opposed to them, because they impede their operations. If such objections as these are sufficient, they are fatal to its usefulness, as a military system. It should be TiOted, however, before we proceed to their consideration, that the whole community have a right to be heard on this subject, as well as that part of it which raises the objections ; and it will be admitted that, if the opinion of any is entitled to particular weight, it is of that party which performs the service. What, then, do the soldiers say ? That close confinement in the manufactories, and too steady employment in any pursuit, injures their health, and that they need some recreation ; that these military assemblies, in the country, are their only holidays. In the city, there are election days, and artillery elections, independent day celebrations, theatrical entertainments, and public shows of all sorts. But in the interior, none of these civil festivals are kept, excepting in a very few of the principal towns ; and, if it were not for the trainings, the people there would be without any public amusements ; and so consonant and pleasant are they to their habits and feelipgs, that even if the law did not require it, they say they should voluntarily continue them. At the same time, they - tell you that they need some amusement, and that these are the only red-letter days .in their calendar ; they ask if there are less in any country ; where they are so well regulated ; or, where they contribute to such important ends ? Which are the public festivals, in Europe, that are not protected by peace officers ; and what is the need of them on these ? Where, in fact, say they, is excess so immediately restrained ; and, what other people exhibit, on the day of their highest hilarity, the greatest degree of subordination ? Is not all this true ? No men toil with more constancy, work more hours, or accomplish more, than our labourers. During the whole of the year they are busily employed ; but, for six months, I consider New-England farmers as the hardest working men on the face of the globe. Are four days too much, then, for their recreation ? On the contrary, if the law did not require militia trainings, for its .present useful objects, it would be questionable, whether it might not be for the advantage of society to encourage them, as a relaxation from labour merely.

- 70 -

But if we look back, a few years only, when there was no national force to save us, and reflect on the important * interests which were protected by the militia, we shall not be willing to rest the defence of this practice upon a doubtful principle. Let us ask the manufacturing stockholders of 1814, (supposing the militia had not have been . called out,) who would have received their dividends ; the gentleman, who could have rode in his coach, and the farmer, who would have plucked his corn ? and, if they are obliged to answer, the British, we cannot extol the principle too much, which, at such small sacrifices, has preserved such great interests. It was these very holiday trainings which saved us. The enemy's fleet was too long upon our coast to be ignorant that our militia came to the field supplied with ammunition and provisions, organized, armed, equipped, trained and prepared for action, and that, if they should not find them already embodied, it would require but a few hours to assemble them. They knew that, here they would have to assail an armed community, in a high state of moral and military discipline, so completely arranged that a considerable portion of the troops would fall in, at their several places of rendezvous, already sized and numbered, like garrison companies. The organization, officering, arming, equipping, and the drill of the militia, is entirely kept up by the spirit which the trainings create. It is by these, that every man knows his officers, and every officer his men, their places of residence, and the best means of notifying them for service. It is by its trainings and reviews, that the emulation of the officers is sustained, the pride of the soldiers excited, and their confidence in their officers united and confirmed. It is to these, that we are to ascribe that alacrity in its movements, and that ardour for conflict, which has always been discovered by our militia, whenever an occasion called them forth from their domestic avocations, for actual service. One of the designs of keeping the militia constantly organized, armed and trained, was to save the expense of maintaining a large regular force. The plan was predicated upon the principle, that the people should defend their own homes ; not that they should be called away for the defence of others. It teaches them their dependence upon their own exertions, and makes them ever watchful of danger to those interests, for the protection of which, none feel so great a solicitude as themselves. Thus it is, that,

- 71 -

always prepared to resist aggression, they are able to pursue their domestic avocations and agricultural pursuits, for the support of their families, upon the very soil which they may be required to defend. The mode of defence which was adopted, in this state, at the commencement of the late war, by the executive authority, (I speak of it in a military view only,) was founded upon its full conviction of the confidence of the people in their own ability to defend themselves. The governor, in his letter to the secretary of war, justly set forth the advantages resulting from the location and character of our population and force; he says, "If the president was fully acquainted with the situation of this state, I think he would have no wish to call our militia into service, in the manner proposed. " Predatory incursions are not likely to take place in this state, for at every point, except Passamaquoddy, which can present an object to those incursions, the people are too numerous to be attacked by such parties, as generally engage in expeditions of that kind. " General Dearborn proposed that the detached militia should be stationed at only a few of the ports and places on the east ; from the rest, a part of their militia were to be called away ; this circumstance would increase their danger; it would invite the aggressions of the enemy, and diminish their power of resistance. k ' Every harbour or port, within the state, has a compact settlement, and generally the country, around the harbours, is populous. The places contemplated in general Dearborn's specifications, as the rendezvous of the detached militia, excepting in one or two instances, contain more of the militia than the portion of the militia assigned to them. The militia are well organized, and would, undoubtedly, prefer to defend their firesides, in company with their friends, under their own officers, rather than be marched to some distant place, while strangers might be introduced to take their places at home. " In Boston the militia is well disciplined, and could be mustered in an hour, upon any signal of an approaching enemy ; and in six hours the neighbouring towns would pour in a greater force than an invading enemy will

- 72 -

bring against it. " The same remark applies to Salem, Marblehead, and Newburyport, places whose harbours render an invasion next to impossible. In all of them there are, in addition to the common militia, independent corps of infantry and artillery, well disciplined and equipped, and ready, both in disposition and means, to repair to any place where invasion may be threatened, and able to repel it, except it should be made by a fleet of heavy ships, against which nothing, perhaps, would prove any defence, until the enemy should land ; when the entire militia would be prepared to meet them. " Against predatory incursions, the militia of each place would be able to defend their property ; and in a very short time they would be aided, if necessary, by the militia of the surrounding country. In case of a more serious invasion, whole brigades, or divisions, could be collected seasonably for defence. Indeed, considering the state of the militia in this commonwealth, I think there can be no doubt that, detaching a part of it, and distributing it into small portions, will tend to impair the defensive power." Supported in his views of the ability and character of the militia, by the best military councils, the governor did not hesitate to place the authority, to call out and employ the force under their commands, in the hands of the officers themselves. But in a state, where the militia was not organized and trained, as well as armed ; where the population was not sufficiently dense, when the beacon of danger should be lighted, to be embodied immediately ; and where there was not a general confidence in the intelligence of the officers, as well as in the discipline of the men, an order, which threw the whole responsibility of the defence of the country upon those whose interests were at hazard, instead of being viewed as a measure of. prudence, would have been considered as the excess of temerity; yet, confident of immediate support from the militia of the interior, the people on the sea-board of the state, who were at all times exposed to the sudden incursions of an ultra marine invader, quietly pursued the occupations of peace for two years after war was declared. Again, when the general officers of the four divisions on

- 73 -

the sea-board, were assembled at the adjutant general's office, in 1814, for the purpose of concerting measures of defence against the land and naval forces which were collecting on our coast, it was from the governor's knowledge of their activity, discipline and skill, that he was induced to order, that the militia, however small the body assembled, which should be organized, should immediately attack the enemy, if he attempted the invasion of any part of our territory. It was their knowledge of it, that inspired the officers with the fullest confidence, that those who would thus oppose the assailants, would be immediately supported by the overwhelming force of an armed and concentred population. Now, let me inquire, if such orders had have been given to an untrained militia, instead of discovering determination and zeal, whether anxiety and dismay would not have disheartened them ? But what was the fact? In every instance they shewed the greatest degree of activity and fortitude. They rallied quickly, and came unhesitatingly into the field, prepared for combat on their first arrival. No better evidence of it can be adduced, than what is derived from the fact which I witnessed, upon an alarm at Wiscasset, in 1814; when, from the known strength of the enemy in the neighbourhood, it was supposed there would be a necessity for the employment of a greater force than was assembled for its protection. Upon that occasion a company of artillerj', and two of light infantry, composed of persons, who, at the time they were notified, were engaged in their private pursuits, prepared with three days provisions, and completely armed, uniformed and equipped, travelled through miry roads, a distance of eighteen miles, from Hallowell, Augusta, and Gardner, and reported themselves in less than twentyfour hours from the time the videt was despatched with the order for their assembling. This was not a solitary instance. The same alacrity was discovered by the militia of the metropolis and its vicinity, when the Constitution frigate was chased into Marblehead, by a superior force, and upon other occasions ; but, I mention this case to show the advantage which has resulted from training the militia in the interior towns of the state, as well as in the more populous places on the sea-board. If this plan was not generally adopted, instead of being assembled on sudden emergencies, and discharged again as soon as the occasion which called for them ceased ; there would be the same necessity here, which exists in other places, for ordering the militia out, at great ex-

- 74 -

pense, in anticipation of the occasion, and for keeping them in service until they had learned their duty, waiting for an opportunity to display their newly acquired skill. If it be asked how the militia protected us, when they were never engaged ? I will ask, in turn, whether it is not better to have one's power so respected by an enemy, that he dare not encounter it, than, by its weakness, to encourage him to assail it, with a confidence, or even a hope, of its overthrow. In the one case, there is a triumph without a battle ; in the other, if it be gained, it must be attended with at least some sacrifices. The general unevenness of our country; the numerous obstructions to the progress of an enemy, which its woods, rocks, ravines, rivers, meadows, mountains, mills, stone walls, and villages present, are peculiarly favourable to militia operations. An enemy would be always unwilling to invade such a territory ; but notwithstanding, if its population, like that of Europe, chiefly consisted of an unarmed peasantry, and its whole reliance was on its regular army, one pitched battle would decide its fate. But a country of well trained militia-men is not conquered when its army is beaten. Every additional district the enemy penetrates possesses the means of its own defence ; and, instead of furnishing him with additional supplies, weakens his force, and diminishes his chance of return. We often boast of the success of the American arms at Plattsburg, and well we may : but, if Sir George Prevost had have carried the American lines, and penetrated the country as far as Albany, we should have had much more cause for it. Like the locusts of Egypt, myriads of militia would have thronged around him, destroyed every moving and living thing, and rendered his retreat impossible. Here, every house is a castle, and every man a soldier. Arms are in every hand, confidence in every mind, and courage in every heart. It depends upon its own will, and not upon the force of the enemy, whether such a country shall ever be conquered. If, without further illustration, enough has been said to shew the importance of the militia in its present condition ; it is to be hoped that more attention will hereafter be paid to its instruction and practice, as the principal means of its melioration.

- 75 -

The trainings of the men in companies, and the reviews of them by regiments, brigades, and divisions, should be considered in the light of drills for the instruction of all those officers and men, who are liable to be called out for active service. Such are the different qualities of troops which a militia general must necessarily have under his command, that it is problematical whether as great a degree of intelligence is not required in him, as in the chief of an army, which consists but of one, and that the best quality. Yet, how little is thought of the necessity, which reflection makes so apparent, of instructing the officers, and practising them in their duties, as well as the men who are subject to their commands. The Legislature should recollect, what the officers themselves feel, that they have the responsibility of the lives of free and independent citizens ; of fathers, husbands, and sons : of men who have property, and a home to secure ; kindred and dependents to protect ; and liberty and a country to defend. Shall such men, who engage with patriotic enthusiasm in the support of these great interests, have no opportunity afforded to qualify themselves for their duties. Or shall the business of war, which puts every thing at hazard, be left to accident, when all other concerns are the objects of instruction and method. It is common for those to complain of a system, who do not comprehend it ; and for men, who are ignorant of their duty, to ascribe their want of success to any cause, but the true one. By such it has been said, that the militia, when brought into combat, has almost always failed to discover that efficiency which its friends expected of it. The truth of this assertion is not admitted. Some most glorious battles have been fought by the militia alone; and where it has been combined with regular troops the trophies of victory have frequently fallen into its hands. The seriousness with which the assertion is made, however, makes it necessary to inquire into the causes of the defeats which, it must be admitted, have often attended the militia, lest they should be supposed to have arisen from defect in the system, rather than neglect in its execution. The disasters of the militia may be ascribed chiefly to two causes, of which the failure to train the men is a principal one ; but, the omission to train the officers is a so much greater, that I think the

- 76 -

history of its conduct, where it has been unfortunate, will prove that its defects are attributable, more to their want of knowledge of the best mode of applying the force under their authority to the attainment of their object, than to all others. It may almost be stated, as an axiom, that the larger the body of undisciplined men is, the less is its chance of success ; and, that in proportion to the number of individuals, acting as such, who are engaged, is the prospect of it increased. The mode of fighting militia against regular forces, should depend, almost entirely, upon the discipline of the troops which the militia general commands ; for the first object of his adversary will be to ascertain the state of his opponent's drill. If he discovers that his enemy, who is assembled in a body, cannot manoeuvre, he will have no occasion to do it himself; for, he will find that those who do not disperse at the imposing approach of his shouldered columns, will fly before the charge of his bayonets. Before any troops are brought into combat, they should not only be made acquainted with military evolutions, but be instructed in their uses, when they may be in the presence of an enemy. A well drilled militia,' alone should be exposed in the open field ; none other can maintain itself. An untrained militia should be placed behind breast works, and shielded from the enemy, in an open country, by fences and buildings ; and in the forest, by trees. Thus circumstanced, every individual can display his own ingenuity and Indian-like sagacity. Spread around the enemy, every gun is directed at him ; and yet, there is no where presented a sufficient object for his columns to aim at. There is no error more common, than the attempt to combine men who are only fitted to act separately. The numerous defeats which the militia have sustained may be ascribed, principally, to the forgetfulness of their commanders that there are different modes of fighting with men, who are equally brave and well armed. They should be left to act as individuals, be divided into small parties, or combined in one entire body, according to the nature of their position, and the state of their discipline. In the case of individuals, each one is left, in a great degree, to the exercise of his own sagacity, and feels his dependence for success upon his own exertions. But a few disciplined men, in a body, will disperse a great many, acting independently of each other, by reason of that coincidence of design, and combination of effort,

- 77 -

which increases the power of a numerical force to its greatest extent. How, otherwise, could Cortes have achieved the conquest of Mexico, with five hundred men ; or the princes of India, with their millions of subjects, be kept under the yoke by the army of a trading company. It must hence be inferred, that the importance of training (he militia is to be estimated by the comparative relation of power which the same number of men bear to each other, acting as a corps, or as individuals. It follows, also, that the success of a corps, which is properly directed, other things being equal, will be in proportion to its confidence in its leader. This, however, is not always commensurate with his skill. As individuals, it will doubtless be in the ratio of their estimate of it ; but, in an army, individual confidence is nothing. It is the confidence of all those who compose it, as a body ; a united confidence, which makes it an entierty, that is alone worth the name. Let the commander, then, be ever so skilful, and his men ever so brave, nothing but drilling can ever give him the confidence of his corps. The officers must be drilled to command, as well as the men to obedience. Intelligence must guide the one, and confidence be unqualified in the other : and, to the attainment of these military virtues, practice is .necessary for both. The militia, generally speakirfg, under the present system, are now best drilled where the population is most dense ; and the population of a country, in a great measure, depends upon the extent of its cultivation. We, therefore, usually find them sufficiently well instructed to act in the manner the nature of the country they inhabit requires. On the sea-board, and in the thickly settled parts of the country, where they are well trained, the militia are qualified to act in a body ; and in the interior, a portion of them are drilled sufficiently to hold the fastnesses, which abound in our country roads, while the rest, by hanging on the flanks of the enemy, acting under cover as sharpshooters ; or in small parties, by intercepting his supplies, harassing his rear, cutting off his baggage, and picking up his wounded, will destroy him in detail. The success which attended this mode of warfare, by undisciplined troops at Lexington, was so marked, that it is wonderful it should since have been so much disregarded. The very men, who, when formed in a body, scattered like sheep upon the approach of the British columns, rendered signal services, the same day, on the

- 78 -

enemy's retreat, when they were left to the exercise of their individual intelligence. With such troops formed in line, as assembled at Hampden, and Bladensburg, there could be no hope of success. Whereas, in the routes of the enemy, there were bridges and defiles for the defence, of the artillery and disciplined corps; and buildings, bushes, and other cover, sufficient to have given that confidence to individual bravery, and effect to its exercise, which might have caused a different result to both of the expeditions of the enemy, which were attended with such disastrous consequences. But where the militia have been skilfully directed, from their superior individual intelligence, and the great interest they have at stake, they have always manifested an impetuosity and valour, which have done their country honour, and frequently enabled them to pluck the laurel from the brows of veterans. What, but their obstinate resistance, could have compelled the British troops to return twenty miles to Boston, the same day they marched out to destroy the stores at Concord ? What, better than their steady perseverance at Bunker's Hill, would have inspired the whole country with confidence in its physical strength ? What could have arrested Burgoyne in his progress, but their zeal and intrepidity? Who, in the glorious battle ofBridgwater, " stood undismayed amidst the hottest fire of the enemy, and repulsed the veterans opposed to them ?" Who defied the power of a fleet of ships at Stonington, and offered to supply the enemy with their own shot at the furnace prices ? Who repulsed the despoiling foe at Baltimore, and laid their proud leader in the dust ? Who swarmed around the British host of veteran conquerors on the banks of the Saranac, and poured destruction into its flying bands ? Who " penetrated into the midst of the enemy's camp," the night after his landing at bayou Bienverju, and by the impetuosity of their attack t appaljed the heart of the taunting invader ? Who sent the crimsoned Mississippi with the message of American valour to the ocean ? These events are engraven on the militia banners, and exhibit the power of a numerical force of different degrees of discipline, where the troops have been properly directed. But if, at Lexington or Concord, the Americans had been formed in line, can any one suppose the enemy's progress would have been impeded by it; or, that at Bunker's Hill and New Orleans, such slaughter would have reduced the enemy's ranks, if the militia had not been covered

- 79 -

by breast-works. These battles are as distinguished memorials of the military skill of Prescott and Jackson, as they are of the valour of American soldiers. They shew us the necessity of intelligence in the commander, as well as of courage in the troops ; and, if they make us regret the many opportunities that have been lost, for gaining similar glory, they will serve as beacons to guide future commanders in the path which leads to it. If, however, it must be admitted that the militia have been defeated oftener than regular forces would have been, according to the chances of war, and the cause of it may be fairly ascribed to the want of skill in its officers, of the proper mode of applying their force to their object, the evil should be corrected by suitable plans for instructing and practising them in their duties. But this proves nothing against the system, for the remedy is consistent with it. Notwithstanding the advantages which have so clearly resulted from it, there are a number of very sensible men who object to the training of the militia, as a useless consumption of time, for another reason, which, upon examination, I think will be found to be more specious than sound. It is, that the officers of the army unite in opinion, that one who has never shouldered a musket, is a better recruit than a militiaman. Admit it. Does it thence follow, because militia drills will not make a soldier fit for the army ranks, they do not qualify him for his own ? Until lately, the militia have been instructed according to the system of the Baron de Steuben; and a soldier, who was well drilled in the principles of that system, would have much to unlearn, before he could be instructed in the principles of the French exercise. Now, though it is admitted that the latter is the preferable system ; yet, it does not follow that the militia is less effective, when they are taught according to the inferior mode, than they would be if they were not instructed at all. On the contrary, any system of manoeuvring is better than none ; because, in the one case, the men can act in a body, and in the other, they must act as individuals. There would be some weight in the objection, if the whole object of militia drilling was to prepare recruits for the army. But this is not the case. It is to qualify the militia to act together. Let me ask general Swift, colonel Fenwick, and every other United States' officer, who has ever seen a review of the troops of the Boston brigade, (and others might be instanced with equal propriety,) whether

- 80 -

they would not have full confidence in them in the open field. If they answer affirmatively, drilling has done them some good ; for, as a disciplined body, they must be admitted to be more powerful than they would be as an armed assemblage. However little weight there ever was in this objection, there is none in it since congress have established the same system of field exercise for the militia that the army practises. Whatever the militia soldiers now learn must be useful to them, whether they act by themselves, or in conjunction with the national forces. The same words of command, and mode of executing them are taught to both, and the more perfect the men are as militia, the nearer will they approach to regulars. It should never be argued as an objection to the militia that it is inferior to the army. The militia of no state ever was or ever will be its equal : the nature of the institution does not require it : the militia were never expected to be as good soldiers, nor to perform the same duties ; if they were, there would be no need of an army. The attempt, therefore, to make them so, would not only be contrary to its design, but would require the application of means, for which the object would be no compensation. It is sufficient that the ambition and intelligence which animate and distinguishes the volunteer corps, enables them to arrive at the highest standard of discipline, while their connexion with nearly all the regiments, produces a spirit of emulation among them which pervades all ranks. But, to require the whole body of the militia to be equally as well drilled as these, would be taxing their purses, instead of their pride, which, having fewer objects of gratification, readily answers heavier drafts. To exempt those from a poll tax, who uniform and equip themselves ; or, to save the troops from expense, while they are labouring for the general good, by furnishing them with rations, at the public charge, would be affording them that encouragement which their exertions merit; but, to pay the men for their services in the militia, as for their labour on the highways, would be destructive of that patriotic pride which animates them. Emanating, as it does, from a spirit of freedom, this alone has been sufficient to advance the militia to the degree of excellence it now exhibits ; and its cultivation is the best means of preserving the system in the purity of its original design.

- 81 -

There is also a very serious class of persons who object to the militia, because its meetings are held near to taverns, and afford opportunities for the indulgence of intemperance. This vice is admitted to be the greatest evil in the country : it is the sin that most easily besets us. The government should discountenance, and the wise men in the community set their faces against it. But it does not affect the militia, solely ; if it did, there would be some force in the argument. If the trainings and military elections are held near to the taverns, so are the town meetings, and those for the election of civil officers. Is that any reason why either should be discontinued ? Our churches, school-houses, academies, and all other buildings for the public accommodation, are erected in the centre of population, where the people can most easily convene. The taverns are placed near to them ; not they near to the taverns. This is a good reason why the taverns should be better regulated, but none why all our civil, religious, and military meetings should be abolished, and the ties of social intercourse dissolved. If the objection can be urged, with greater force, against the military associations than any others, it must be in those places, only, where the militia receives but little encouragement. " Honor virtutis prcemium." Let the people in such towns Jbllow the example of our ancestors, and making militia offices the objects of laudable ambition and they will place the institution under the control of that moral influence, which will discountenance all the vicious propensities of its members. The peace society is also said to be opposed to the militia, because it encourages the spirit of war. If so, its opposition is founded on erroneous views of its purposes. The militia is the rock of peace. It is formed to resist aggression, and never can commit it. There is yet another class whose mistaken opinions up* on the subject, I apprehend, arise, in a great degree, from considering the militia as a military institution, solely. If it were so, every maxim of prudence would teach us to cultivate, with assiduity, in peace, that which must be our main reliance in war. It is when no ill consequences immediately follow from the adoption of a principle, that bad precedents are most likely to be set. We never fully appreciate the value of that, for which we have no immediate want. It is in times of peace only, that we hear militia

- 82 -

duty complained of as burdensome, the trainings as too numerous, and the reviews as a vain ostentation. It is then even seriously contended, because, by the constitution of the United States, congress have power " to provide for organizing, arming and disciplining the militia, reserving to the states respectively, the appointment of its officers, and the authority of training the militia, according to the discipline prescribed by congress," that the states may train the militia or not, as they please. If such be the case, for what purpose did the convention maintain the right in congress, to prescribe its discipline ? This right could be of no use, if the militia be not trained accordingly. As well might it be said, that because the states have reserved the power to appoint their own officers, they have it at their option to appoint them or not. "When the constitution of the United States granted this authority to the states, it contemplated its exercise ; and, if the clause be not imperative on them to make appointments of their officers, and to train their militia according to the established discipline, all the provisions of the constitution, regarding it, are useless. The law of 1 792, which prescribes who shall be enrolled in the militia, and how it is to be organized into divisions, brigades, regiments and companies, limiting the number of men in each, and defining the number and rank of the officers, is founded on this construction. But where is the wisdom of this law, if the states can refuse to appoint the officers. This is not now contended for, nor ever was, that I know of; but it may with as much propriety be argued that the states may omit to execute the provision for officering, as that for training the militia. Both these powers are comprehended in the same clause, and the same rule of construction must apply to both. Little could it have been thought that any of the states, which, with such wise precaution, retained to themselves this safeguard of sovereignty, would have so soon neglected ks exercise. Much less, that the doctrine by which they justify it, would be openly promulgated in this, which has derived such essential benefit from the service of its militia, in the principal cases which were contemplated for its use ; in executing the laws, suppressing insurrection, and defending from invasion. ~L, Further, and to be more particular, (for a recurrence to facts is often necessary to prove the importance of principles,) what could have prevented the squatters, who were encamped, a few years since, near the jail

- 83 -

in Augusta, for six weeks, from rescuing a prisoner committed for shooting a sheriff in the execution of his duty, but the militia ? or, who could have hung Jason Fairbanks without its aid ? When the standard of rebellion was raised by Daniel Shays, and the spirit of insurrection was spreading its influence over the state ; when the courts of justice were either shut, or the judges contemned on their seats; when civil processes could not be served, nor criminal sentences executed ; what could then have restored our domestic tranquillity, but the militia ? And, when a British fleet, with troops and transports fitted for the purpose, was hovering on our coast, and there were not two hundred United States troops on the whole sea-board of the state, what could have prevented sir John Sherbroke their commander, who surprised and blew up one ship of war at Hampden, from destroying those on the stocks at Portsmouth, and at Boston, but the militia? Have we, who, when a fleet and transports, with twenty-seven hundred troops on board, was on our coast in 181 4, prepared to execute the devastating order of admiral Cochrane, " to destroy and lay waste such towns and districts upon the coast, as might be found assailable," were flying into the interior with our families and moveables, for safety, so soon forgotten our dependence on the militia, when it was called out for our preservation ? And is our fancy so dull, that, even now, we cannot imagine the spoil and desolation that would have visited our towns and cities in their horrid reality, but for its protecting power ? Who could have thought that we, who, by two months of its service, so lately, were secured in the possession of more property than the whole establishment has cost the government since the adoption of the constitution, should now be told that the militia is a burden* too heavy to be borne ? God grant that so long as such sentiments are disseminated, the recollection of these events may not be forgotten. Notwithstanding the protection it has affor ded ; yet, judging from the numerous propositions which have been made in congress, within the last ten or fifteen years, for new modifying the law of 1792, and from the speeches of the members on the subject, we should be led to conclude that the system had not answered the hopes of its projectors. This makes it necessary for us to examine the proposed substitutes, and see whether they are more likely to ac-

- 84 -

complish it. The plan which is most countenanced, is that which is founded upon a system of classification. This proposes, that the enrolled militia shall be divided into distinct corps, according to age, and that the youngest class shall be encamped, each year, for a definite period, and the officers and men paid for their services. The principal objection of a military nature, which has been urged against this project, is founded upon the idea that men of sufficient ability, and understanding of their duties, are not selected for officers ; and that it w r ould be impossible for them to teach the soldiers, what the plan proposed contemplates they should learn ; wherefore, the expense attending it, would be more than the advantage gained. This objection has no weight with me. For though the officers, in many parts of the country, are now incompetent to the duties of active service, this does not arise from their deficiency of capacity to comprehend them ; but from a want of practice in those duties. It cannot be expected of officers who render gratuitous services, that they should learn more than they are required to per. form; and where, (as in many of the states,) they are merely returning officers ; if they do this duty as well as coroners and constables, they comply with all the requisitions of the law which prescribed it ; are entitled to all the distinctions which such offices confer ; and are not to be censured for a want of greater skill than their duties require. The very plan proposed will cure the evil upon which the objection is founded. It will enlarge the duties of the officers, make military commissions desirable with the young and ambitious, and introduce that emulation among the officers, which always results in military distinction. My objections to the system of classification are rather of a civil than a military nature; for although the militia should be considered as a powerful military establishment, constituting the great reserve of the country, to be used in aid of the regular forces; and we should be careful to make no arrangement of it which will defeat this purpose ; yet, its importance to our civil institutions is quite as much deserving of regard. The asperity of parties on constitutional questions, of doubtful construction ; the contests for power ; and the zeal manifested by those

- 85 -

who espouse the views of the contenders, excited by political causes, and embittered by local animosities, such as we have already witnessed, ought to convince us, that we are not always to be free from the interference of that power, in our civil concerns, which is best suited to accomplish the designs of the most daring. Mankind are the same in all ages. The objects of ambition are always present ; and can it be supposed that the use of those means which have been employed with success in establishing the dynasty of other nations, will always be omitted in ours ? The history of all times, nations and governments, is so full of examples of revolutions, which have been accomplished by the aid of mercenary troops, that particular instances need not be cited. The various geographical lines which have been drawn on the map of Europe for the last thirty years ; the narrowed circles of empires ; the overthrow of republics ; the establishment of strangers on the thrones of kings, and of kings on the rights of subjects, should teach us not to undervalue either the moral or physical influence of that wise counteracting cause, which our constitutions have provided, as the bulwark of our liberty. Not that the public rights are now in danger, from troops which are insufficient to watch the Indians and garrison the forts ; not that they ever would be, from an army composed of such patriotic officers and soldiers as that which has saved and exalted the nation's glory: but, when the restraints of morals shall be loosened, and virtuous habits cease to control, the army will be increased, and composed of different materials ; and however much we should, now, deprecate its interference, I do not know why this country will not have as much reason, as others, to apprehend it, then. Neither is the anticipation very extravagant, if the history of the past justifies expectation for the future, that, whenever the United States shall be divided by factions, and the human passions are inflamed by political rancour, the jealousy of those powers, who vigilantly watch the local extention and maritime strength of our country, will shew itself in aiding either party with those mercenaries who have brought Europe under the yoke. If it be said that these are needless apprehensions; that our country will never be so circumstanced, and that we are guarding against evils which can never happen : it may be so ; and, while the militia is properly supported and encouraged, it will be so. But let those, who are

- 86 -

thus fearless for the future, look back ; and, after reflecting on the exhausted state of the country in 1783, answer me the question, what could then have prevented the army, at Newburgh, from establishing their own pay, and our political destiny, if they had so determined ? But, since the establishment of our militia system, there never has been a period when it would not have been the height of folly, in any officer of the army, to suppose that it had the same ascendancy. Though, therefore, the extended coast and internal frontier of our country must have numerous garrisons, requiring a large army, there can be no fear from its extension, so long as the militia- is maintained with proper spirit ; for no nation was ever subdued by its own soldiers, until it had given up the use of its own arms. I know that even the suggestion, that the army may become oppressors, and that foreign myrmidons may be employed in this country, is offensive to patriotism : but, let us recollect that there is no word, in the political vocabulary, which has so many meanings. Every one interprets it according to his own views. That party which is united by the strongest sectional feeling, will apply the same name to themselves that they do to their servile ad-* herents, in other parts of it, who sacrifice important public interests to motives of personal ambition. The whigs were patriots, and the tories were patriots, and as Dr. Johnson says that " patriotism is the last refuge of a scoundrel," when the time shall arrive for the employment of foreign troops, those who introduce them, will, of course, be most exalted patriots. Constitutional restraints will not then be regarded, for the more numerous the obstacles, the greater will be the claim to patriotism of him who shall surmount them. Holland, Spain, Portugal, Naples, France, have employed foreign troops, and the parties, who sought their assistance contend, that in so doing, they were governed by the motives of the most sublimated patriotism. Obsta principiis, was the motto of our fathers. If we have no right to indulge ourselves in the apprehensions of such events, then they were unwise to give so much importance to the establishment of principles which are of use only to prevent their recurrence. Is this a useless or untimely digression ? It is ; unless it be justifiable to point out the consequences which will follow from one doctrine, in order to test the utility of its opposite ; and for this purpose I have indulged in it.

- 87 -

I said that the militia was of as much importance in a civil as in a military view ; and that the plan proposed of classing the militia, would diminish its useful civil influence. I mil endeavour to illustrate it. The camp would be composed entirely of young persons, strangers to each other, and therefore would expose the "virtuous to the contamination of its vicious members. Military regulations may make it a school of military science ; but, not a nursery of virtue. On the contrary, the habits of a camp are inconsistent with that temperance, industry and frugality, which are encouraged by domestic pursuits and relations. It would subject minors to an authority, less moral than that of parental control, at a period of life when this is most beneficial. It would take the younger, and most active part of our citizens, away from their homes ; interfere too much with their civil occupations, and inspire the youth of the country with a greater love of military glory, than of civil liberty. But no such consequences result from the present system, where all able bodied men, between the ages of eighteen and forty-five, are enrolled and train together ;* the father with his son, the master with his apprentice, and the guardian with his ward. The companies are composed of persons of the same neighbourhood, where the vicious propensities of those who are enrolled, are known and restrained by the influence of the elder and moral part of it. The rewards of merit are also greater, because the number of officers is in proportion to the number of those who are subjected to duty. Such trainings are productive of a friendly intercourse in society. They give an opportunity for those who are in the humbler walks of life, to disclose their talents and virtues to others whose consideration is deserving of regard. They elicit merit from a class of men who would have no other chance of shewing it. They make every officer who has gained the good opinion of his fellows, ambitious to retain it, and those, who are coming forward into life, desirous of the distinction which a commission confers. They teach civility and respect for authority. They introduce habits of subordination in society ; and impress, upon the younger part of the community a sense of that obedience to the laws, which influences all their conduct in life ; and taken in connexion with our schools of education, and our establishments for moral and religious instruction, they make an orderly community.

- 88 -

When the objections, which the institutions and habits of the eastern states thus present to the system of classification, are considered, then we hear of a plan substituting drills of officers for those of privates. This, if they had no opportunities furnished them of practising in their various stations, would be neither more nor less than turning officers into private soldiers. By another proposition, all hope of making the militia efficient, as corps, is relinquished ; the trainings are to be discontinued ; the mode of arming and equipping the privates changed ; bayonets and cartridge boxes given up ; and rifles and powder horns are to be furnished to the citizens, and the whole militia turned into sharpshooters. It is true, that it is better that the arms should be kept by the men themselves, at their own dwellings, than in the public arsenals. They thus learn to take care of them, at least ; and as opportunities for hunting and practical shooting offer, they improve as marksmen. But few boys would learn their catechisms, if the books which contained them, were to be found in the public libraries, only ; and but few men would be familiar with the use of arms, which were not kept in their own possession. But the plan, if it be viewed in a military light only, will be found to be of partial use, and will operate almost exclusively for the benefit of the foresters, who would thus be supplied with rifles at the public expense. But where the country is settled, the general use of arms is given up ; and, as the forests are cleared, drilling becomes necessary as a substitute for that habitual exercise of shooting at game, which has obtained for Americans the reputation of being the best riflemen in the world. If this be not required in the populous parts of the country, the backwoodsmen alone will be able to defend themselves, as none others will be accustomed to the use of the arms with which they are to be furnished. Independently of this, the effect of a plan, upon the order of society, which would turn the whole effective population of the country into guerillas, must suggest, to every reflecting mind, sufficient objections to it. Such propositions as these, being seriously submitted, and zealously supported, in the great hall of the national legislature, whose debates and doings are spread over the

- 89 -

whole country, have their effect upon public sentiment, and naturally tend to create doubts in those, who otherwise would aid in perfecting the present system. The inquiry then cannot be considered irrelevant, from what quarter do these sentiments emanate ; nor invidious, if it shall be found that they originate in those states which have not carried into effect the existing laws, in a mode properly adapted to test the merits of the established system. In some of them, the militia in the cities, only, are trained ; and in others, training is omitted altogether by requisition of law, or the practice under it. Where this is the case, as the enrolment and organization, the inspection of arms, and the returns of the numerical force, all must fail, it is no wonder that the system has fallen inter disrepute. On the contrary, in those states where the application of the principles, upon which it is founded, has been fairly made ; where the emulation of different corps is excited ; the pride and the ambition of the officers stimulated ; where commissions are the indexes of public estimation, and the passports of distinction ; in fine, where the system receives the support of the civil government, and the countenance and aid of the influential members of the community, there we hear no complaints of its incompetency. It cannot be considered as unbecoming in us, then, to combat opinions which originate in ignorance of its merit ; for, if these are left unexposed, they may be received for truths, and threaten the destruction of a system which has become identified with the habits, manners, associations, and interests of this part of the country. To do this, we must trace the causes which have made the same system so beneficial in this commonwealth, and so inefficient in some other parts of the United States. We shall discover them, principally, in the long established customs of the people whose habits originated it ; the early establishment of a regular military department under the state government ; the conformity of the state laws and general orders to the constitution and laws of the United States, by which the aid of the civil tribunals is afforded, in the collection of the fines and penalties for enforcing their provisions, and in support of their authority ; the estimation in which the militia is held as a civil institution ; the facility the soldiers possess for drilling, by reason of a greater density of population ; the substituting of company trainings for battalion meetings, by which the inhabitants of each neighbourhood, who are

- 90 -

known to one another, can come together oftener, and with less expense, than when they are assembled in larger bodies ; and in the mode of selecting officers by the free votes of those who are to be subordinate to their authority. It would be tedious, if I were to enlarge on these causes ; but, as you may not be practically acquainted with the favourable operation of the last, upon the respectability of the establishment, I will confine my remarks to that, believing that its illustration will afford some gratification to the great champion of the elective franchise in well balanced governments. The elective principle was early applied to military institutions in this country, by those who regarded military power, both as the most important to the preservation of their civil rights, and the most dangerous to their existence. The people chose to keep the control of it, therefore, in their own hands. The advantage resulting from it, under the colonial government, and the aggressions of the troops, whose officers received their appointments from the crown, upon the citizens, just before the revolution, confirmed the favourable opinion of the principle which was already entertained, and induced our civil fathers to incorporate it into their frame of government. It is there provided that the privates shall choose their company officers ; and the captains and subalterns, the field officers. These latter are made the electors of their respective brigadier generals ; and the two branches of the legislature, by a concurrent vote, designate the person on whom the governor shall confer the high and important office of major-general. Thus, in all cases, the power is lodged with those, who not only have the most interest in the choice, but who are the best judges of the requisite qualifications for the vacant office. The disposition which is generally manifested for regular promotion, from the lowest to the highest station, operates as an inducement for the subordinate officers to hold their commissions some years, with a view to the attainment of the honours and distinction of higher rank. An office? is seldom superseded without cause, while the power of the electors to do it, every time a vacancy occurs, is a continual stimulus to the ambitious to qualify themselves for their present duties, as well as for those of higher places. Additional motives for the officers to continue in command, long enough, not merely to obtain a

- 91 -

competent knowledge of the active duties of the field, and to become acquainted with the provision of the laws regulating enrolments, inspections, and the returns of their respective commands ; but, to gain a practical knowledge of the modes of filling up the blanks, the regular modes of their transmission, and in fact, the routine and forms of the military department, and the principles which govern it, are afforded by the laws which confer immunities upon those, who have been honourably discharged from their offices of a greater or less value, in proportion to the length of their period of service. These inducements are also increased by the established principle, which will not permit an officer to resign at his own will. By taking a commission, every one subjects himself, under all the responsibilities of the law, to the command of his superiors, until the commander an chief is satisfied, either that the peculiar circumstances demand, or the good of the service requires, the acceptance of the resignation of the person who offers it ; while those who do their duty, feel a security in the possession of their authority, from their liability to removal from office by a sentence of a court martial only, regularly detailed from the roster. When, in connexion with the preceding circumstances, we take into consideration the early establishment of a military department in the government ; and its regular organization, a few years since, under the direct administration of one of the most experienced, and intelligent officers of the revolutionary army: that the adjutant general is required to make out and issue commissions and discharges for all the officers ; to keep a register of their rank and stations, and a record of all the correspondence, orders, and decisions, upon military questions, and to furnish the officers with forms and instructions relative to all their duties ; that, under the direction of the commander in chief, as the head of the military staff, he maintains the officers in the proper exercise of their authority, and holds them responsible for its neglect, by the application of general principles to the same case, whenever it occurs, without regard to individuals ; and, that his opinion, when requested in writing, is at the command of every officer, upon any question of practice or of duty, it must at once be seen, that there are considerations offered for a class of men to take commissions, and qualify themselves for the performance of their duties, who, by no other mode of selection could be induced to enter the service.

- 92 -

It is true that the power of electing their own officers, is liable to abuse ; but the discretion which is exercised in discharging them from service, checks it. It is this power, which the commander in chief, in this commonwealth, only, possesses, that prevents some companies from attempting to bring the institution into ridicule, by choosing unworthy men as their commanders. Instances of this trifling disposition were frequent, until the governor refused to discharge officers of this class, when, ashamed of their folly, at the time of their election, their constituents have afterwards requested them to resign. Since this principle was established, the electors, finding that they were the only sufferers from their own levity, have ceased to indulge such caprices. But when the mode of election is compared with that of appointment by the executive, who cannot be personally acquainted with the merits of all the candidates, for the numerous offices in his gift, and who therefore acts, as in some of the states, upon the irresponsible recommendations which are made of candidates, to fill subordinate stations, by those who are invested with the powers of higher offices : or, as in others, upon the proposition of the judges of the county courts, who, of all men, are the least likely to be acquainted with the qualifications of the candidates, it can hardly be doubted that it has the preference. It has also this farther advantage, that men of elevated standing, who might refuse an executive appointment, when they are chosen to command by their fellow citizens, consider it as so decisive an indication of their partiality, as will hardly permit them to disregard it. In fact, there can be no greater evidence of confidence, than that which is shewn in the investment of another with military authority, by the free votes of those who are subject to it. Numerous instances, of the favourable operation of this principle, might be cited in every part of the commonwealth ; but your own knowledge of the distinguished citizens, high in the confidence of the government and the people, who have had the command of the brigade in which you reside, and that which the capital of the state composes, makes a further illustration of it unnecessary. While it is thus shewn that the elective principle offers many inducements for men of distinction, and laudable ambition, to take commissions ; there is another, and as it regards its effects on our civil institutions, a greater benefit resulting from it.

- 93 -

Officers who perform their military duties acceptably, become the objects of civil promotion. It is strictly a republican principle. The doors are open to all. There are as many men introduced into the municipal, county, and state offices, and into our legislative assemblies, from the militia, as from the bar. The gentlemen of the latter are fitted for them by education ; and those of the former are selected from among their fellows, for that natural strength of mind and decision of character, which fit them for the acceptable performance of their duties, as officers. Those who accept commissions are placed in situations, in which the qualities of the mind and the heart are developed, and their temper and morals disclosed. They are obliged to appear in the public presence, and thus afford, to its discerning eye, opportunities of discovering their faults, and measuring the extent of their capacities for usefulness in civil stations. Not only so : every act of their lives has relation to the promotion or disgrace to which they subject themselves, when they first take commissions. By the frequency of elections their character and conduct are brought to trial, not according to previous notice, but whenever a vacancy happens by the discharge of any of their superiors. They are, therefore, obliged to be ever watchful of their conduct. Knowing that they act at all times under its special observance, militia officers feel a responsibility that does not attach to other members of the community. All are taught to consider them as men of honour ; and it is only by acting like them that they can expect a continuance of the estimation in which they are held. Every man who wears an epaulette feels, in a greater or less degree, the pride of his station. This causes him to cultivate upon all occasions, that propriety, and dignity of demeanour, which are so essential to give effect to official authority. Militia offices have much the same effect on those, who are ambitious of consideration among men, that rewards of merit have in schools. They have, therefore, a powerful influence on society and conduct. While the laws punish convicts, to deter from crime, the militia offers continual incentives to virtue. It has always been observed, that the inhabitants of the frontier settlements are rude, until they become the subjects of military discipline. Although this is never forced upon them ; yet, so sensible of its influence are the moral and discreet part of the settlers, that the authority to organize new military com-

- 94 -

panics is generally petitioned for, before the inhabitants are sufficiently numerous to form them. When their requests are granted, the manners of the people begin to improve ; civility and subordination are introduced among them ; their police regulations begin to partake of the spirit of their military institutions, and are executed in the order of their forms. These are sufficient considerations to make them solicitous of becoming subservient to that military authority, and subject to the imposition of the fines and penalties resulting from disobedience to it, from which they were before free. In a new country, it may, therefore, be justly said, (and I think the observatio'n might he further extended,) that militia makes manners, and manners make laws. The first elections are made by the citizens, from among themselves. Ensigns are put upon probation. If they are attentive to their duty, and behave with propriety, they, like other officers, arc regularly promoted. It is true that the electors, in their original selections from the ranks, may be deceived in the character and talents of the persons chosen, and often are so ; but, when this is the case, or officers of any rank lose their standing in society, from any cause whatever, the next election cures the evil ; and the subjects of it, by the choice of their subordinates to superior stations, are induced to request their discharges, as superseded officers, which are never refused. While, therefore, from the discernment of the people, it turns out in practice, that more ensigns are superseded than all the other company officers united, it ought to be made known, that, as our schools afford equal opportunities to all classes of the community, for obtaining a good education ; often, very often, is it, that military elections bring men of respectable talents and acquirements into the notice of society, from the humbler walks of life, who are, in consequence, enabled to display those qualities which recommend them for important civil employments. If the militia establishment is thus respectable in Massachusetts, and has so well accomplished the objects of its design, it may well be asked, what reason we can have to fear its destruction ? To which it is replied, that it is difficult for individuals or states long to maintain a standard above their neighbours. Admiration soon degenerates into envy ; and an elevation which may appear to be of command-

- 95 -

ing importance, in the view of those who have ascended it, will be considered as uselessly high, by those who cannot attain it. It is not the institutions, or individuals which have a little, but those which have the greatest celebrity and influence, which are the objects of attack. Accordingly, when the militia was inefficient, in comparison with its present condition, it met with general support ; and it was not until it had attained to that degree of excellence, which made it an example to other states, that we began to discover within ourselves the operations of that casuistic jealousy, which has since been covertly making nearer approaches, and has now commenced its open assault. But it is not a plain proposition to abolish the militia system that 1 fear. Such an one presents the whole subject to consideration ; and the consequences of its adoption would be so apparent, to all, that it need not be apprehended. It is the undermining policy of its foes, which has already weakened its foundation, that we have reason to dread. This is now exhibited in constant attempts to diminish its respectability, by discouraging the distinguished members of the community from engaging in its duties, or accepting its offices ; by increasing the number of exempts, and thereby making its burdens less equal ; by withholding the customary patronage, and jeering at its celebrations ; by refining away the requisitions of the United States law, and increasing the embarrassments of enforcing its provisions ; by subduing the ardour of the soldiers, making disparaging comparisons of their relative obligations ; repressing the spirit of the officers, and reducing the objects of their ambition. If this was out door influence only, it would not require very serious consideration; but, when public sentiment is so far affected by it, that the laws partake of its spirit, it becomes an object deserving the strictest scrutiny into its probable effects on the system itself, and its consequences on the community at large. Thus, the power of the legislature to add to the number of exempts, recognised by the United States law, has been exercised by ranking firemen among them, and by granting to the selectmen of the several towns in the commonwealth, authority to appoint them. This is exerted in many places by keeping more fire engines than there are military companies, and thereby making the roll of firemen disproportionally great to that of the train-band.

- 96 -

So in the militia act of 1810, which, in every other respect, must undoubtedly be considered as an improvement in the details of the system, we find the principle adopted of a right in the state legislature, to excuse a part of those persons from training, who, by the United States law, must be enrolled, and who, of course, are subject to drafts for actual service ; thereby absolving them, (if the state authority so far extends,) from any obligation to perform that specific duty which fits them for that service. However inexpedient the plan of excusing those, who were between the ages of forty and forty-five years, from training, must be considered ; yet the condition on which the privilege was granted, of requiring such as chose to avail themselves of it, to pay an annual stipend towards the purchase of uniform, arms, and equipments for such as remained subject to all the requisitions of the law, deserves to be applauded. The application of the money, derived from the exempt fund, thus created, to the purchase of the few articles, required to give a respectable uniformity of dress to the whole body of the militia, encouraged the hope, that, in a short time, a measure would be carried into operation, without expense to the individuals benefitted, which, having the effect to increase the soldier's pride of conduct, as well as appearance, would thereby add to the dignity and efficiency of the militia establishment. A state uniform, as a measure of economy, only, is attended with as much gratification to the individuals of the militia, as benefit to the whole body ; for, when any person has once been furnished with a proper dress, he will always be in uniform with the militia of any part of the state where he may happen to reside. The evil tendency of the principle, upon which the immunity of partial exemption from training was founded, was, therefore, blinded by the utility of the provision annexed to the grant. A few years afterwards, we find the legislature relieving those from training, who are above thirty-five years of age, thus lopping off another large proportion of the trainband. This was a serious injury to the militia. Still, as the number of conditional exempts was increased by it, the relief fund was proportionably enlarged, and this served to keep up the spirit of those who remained subject to duty. This encouragement was not long afforded ; for the consequence of admitting principles was shewn in a following act, which repealed the condition as to all those

- 97 -

who are above the age of forty years, and reduced the number of company trainings from three to one. Thus all who are above forty, are entirely released from duty, and those above thirty-five, may purchase exemption for an annual stipend of inconsiderable amount, in comparison with the extent of the services required at the time it was fixed ; but which, since the number of the trainings have been reduced, has so nearly become the equivalent of the personal service required, that but little benefit can be expected from it. There was a law passed, two years since, for reducing the number of inspections and reviews, which afforded to the general and field officers their only opportunity of practising in their duties ; but this, was so much in advance of the march of public sentiment, that it was repealed the year after its enactment. While we admire the intelligence which supported this principle, we cannot but regret that the importance of the connexion between the drilling of the officers, and the training of the privates, was not seen. To experienced men their mutual dependence is apparent, and necessary to the utility of the system. The reduction of the trainband, and the diminution of the company trainings, of those who remain subject to duty, without increasing the fines for non-attendance, will, it is feared, have so serious an effect upon the recruiting of the volunteer associations, and upon the discipline of the whole militia, that the reviews, themselves, will be of less utility, than heretofore. It has before been attempted to be shown, wherein the principle, involved in these measures, was at variance with the spirit and design of the constitution, ^ot that I mean to deny that the states have any authority over the subject of training the militia, for that is a power which is expressly reserved by them. The time and place ; the persons who shall act as instructers ; the mode of assembling the troops ; the number of them that shall be collected together ; the fines and penalties for neglect of duty ; the mode of collecting them, and their appropriation ; the punishments for disobedience of orders, and the manner of inflicting them; these, and other details, are left to the discretion of the state authorities. It was wise they should be so, in order that the modes of their accomplishment might conform to the customs and habits of the people, in

- 98 -

the different latitudes of this widely extended empire. But the manner in which the militia shall be trained is not a subject of state regulation ; for this is expressly required to be according to the discipline prescribed by congress. The terms of the reservation, therefore, imply the exercise of the reserved power. The discipline of the militia is the object of the United States' authority ; its training the means, reserved to the state governments. It is a necessary consequence that, unless the means are adopted, the object is defeated. It also follows, that if the number of trainings, which has been established, is not sufficient for the accomplishment of that object, it should be increased, instead of being diminished. If, however, a state legislature can omit to make provision for training and disciplining a part of the force, it can the whole ; and, in our legislature, we see that the successors of those, who exempted a part of such as were required to be enrolled from militia duty, upon condition, have found that it was quite as easy to release them, without any condition whatever. Thus, by pursuing the course which is begun, it requires but little foresight to predict that the design of the constitution will be defeated, and that it will be but a few years before the organized, armed, disciplined, and proud spirited militia of this commonwealth, will be reduced to rude assemblies and disorderly "bands. It is when sur.h inroads are making in it, that the friends of the militia system are obliged to trace its origin, develope its advantages, and appeal to its founders for a continuance of their aid in its support. The early habits of the people of this commonwealth prepared the way for the adoption of a militia system which differs from that of all other nations. It was engrafted on a stock, which was able to support, and which long continued to nourish it. The founders of our political constitutions anticipated its influence in support of civil government. They acted on the principle, which will stand the test of ages, that " a militia is the only safe defence of a free state." This sentiment was not confined to statesmen ; but a very great proportion of the illustrious officers of this state, who, by their skill in arms, had eminently contributed to the establishment of our independence, gave their first endeavours, on the return of peace, to the improvement of the militia. The journals of the legislature shew them to have been ardently engaged in framing laws for carrying their

- 99 -

plans into operation, and constantly urging the importance of the institution to the preservation of our civil privileges* The law of 1787, which contains the fundamental principles of those which are now in force, was drafted by the most distinguished officer of the revolutionary army, now living in this commonwealth ; and those only,who know the lax state of militia discipline, at that time, are able fully to appreciate the extent of the exertion which was required to induce the whole people to lay themselves under the restraints, which experience testifies were indispensable to its improvement. Their efforts did not terminate with their legislative labors. They joined the " military company of Massachusetts" for the instruction of officers ; took commissions in the staff, and in the line of the militia ; and upon the enactment of the law of congress of 1792, establishing its organization and discipline, by their personal exertions, assisted to carry its provisions into immediate effect. They strove to introduce into it that discipline and subordination, from the want of which the country had so seriously suffered, during the revolutionary war. The distinguished names of Heath, Lincoln, Brooks, Jackson, Shepherd, Cobb, Sewall, Dearborn, Hull, Mattoon, Varnum, and numerous others, who took subordinate, but not less useful stations, attest to the truth of this remark ; and it is not among the least of the considerations which have entitled them to the plaudits of their countrymen, that those who were worn down by the fatigues and sufferings of an arduous service, did not cease from their labours, until they had established, and carried into practical operation, a system so admirably constructed for the perpetual security of the liberties they had conquered. It was, in a great degree, by the exertions of one of these individuals, that, only a few years after the close of the American war, a militia line was exhibited to Washington, on the very ground where he first took the command of the American army, at Cambridge, which called forth the warmest expressions of his admiration, at the comparative beauty and efficiency of its troops over those with which the American revolution was achieved ; and of his strong desire, that the other states would follow our example. Those, who know the great improvement which has been made in the militia, since that period, ought not, surely then, to undervalue it now ; nor to forget, that the example and conduct of those distinguished heroes and patriots, gave it an impetus which

- 100 -

has not yet ceased to operate. It should be a subject of gratitude to us, that many of them are the living witnesses of the prosperity and usefulness of a plan, which had so much wisdom in its design, and called forth such disinterested efforts in its execution. The objections to maintaining the militia system, in time of peace, if we give that credit to the enlightened views of another class of its opposers, which their general conduct entitles them to, does not arise so much from selfishness, as from a settled belief, that if it were to be abolished to-morrow, the same, or a better system, might be raised up, at any future time, when it should be needed. But there cannot be a more mistaken notion. The militia laws form a system of details, not for the conduct of men in any defined circumstances, or on any given occasion ; but, for the government of thousands and hundreds of thousands, bearing an infinite variety of relations to each other ,.and to those with whom they may be called to act on all occasions. The militia is a system of practice. Even the boys now almost become soldiers, from observation. But if there were no militia exhibitions during peace, how few persons would there be, after a lapse of years, who could justly estimate the advantages of the system. This is not all. In the militia, as in the judicial system, there are but half the rules in the statute book. The decisions of military courts, and courts of law, upon contested points of authority ; the general orders of the commander in chief, explanatory of the laws, and of the officers duties ; his decisions upon the proper mode of conducting elections, and upon the numerous contested cases of their validity ; the systematic forms for all branches of service, and the practical duties of the officers relating to their use ; the established routine of duty, which can be attained only by experience; all these, form a code of common law, with which every officer, as he advances in rank, becomes more and more acquainted ; and we might as well expect to establish a judiciary system, whose operations would harmonize like the present, after the lawyers were all dead, as to reorganize the militia by a statute, with all the habitual exactness of the existing establishment, without the aid of practical men. Besides, if it could be done, the expense of it would be more than the cost of its continual maintenance, and its inefficiency incomparably greater. Most improvements result from practice. If there are

- 101 -

those who think there might be a better system, let them propose it while the principles of the present are known. We now have a standard by which to test the merit of the proposition. In the existing system there is abundant room for improvement ; but no reason, that I can discover, for its change. But if there were, who, after the present order and arrangement of the militia shall have been broken up, when a necessity for its reestablishment shall arise, will be able to carry their new schemes into operation. Shall we ever again see such talents, experience, patriotism, and zeal exerted in its behalf, as the origin of the existing institution produced ? Shall we again have, for a succession of thirty years, so many intelligent and practical men in all its departments, uniting their influence and personal efforts for its improvement? There is no reason for the indulgence of such expectations. Those who reflect upon the subject, must come to the conclusion, that if, with our knowledge of its merits, the militia is abandoned, it will be as an exploded system, which it will be impossible to renew. The changes in the state of society, which would be produced by it, and the consequent necessity which would then arise for the employment of its only substitute for the support of the civil power, I leave to the imagination of those, who, I hope, will never experience them. The best evidence we have of the expediency of any system, is derived from those who have the most intimate knowledge of its practical utility. If, then, we take the testimony of those eminent men who founded it, as well as of those, who have since held, or now are invested with commissions in the militia, we shall find a perfect concurrence of sentiment in its favour. Under the guidance of one of its distinguished supporters, sufficient opportunities have been afforded me of comparing its theory and practice, in their minutest details. Having witnessed, also, its activity and spirit, when called into service, in time of war, and the harmony of its operations in peace ; having observed the advantages resulting from it to civil society, and the ease with which it is maintained, I cannot refrain from declaring my admiration of it, as a proud monument of the wisdom of its founders. In expressing my opinion of the constitutional system, in such unqualified terms, I do not mean however to be understood as advocating the United States law, as it now

- 102 -

stands. This was passed thirty years since, and the views which are entertained of their authority under it, by the state legislatures, or rather the mode in which it has been exercised, shews the necessity of further provisions, to give it efficiency, uniformity, and perfect equality. Among the powers which this law confers upon the states, that of granting exemptions from its duties is one which has been attended with the greatest misuse. If this was further restrained, the expense of the system equalized, books of instruction and arms provided at the public expense, and a mode of teaching and practising the officers as well as privates, established ; it might then be considered as better fitted to accomplish the design of the institution. As far as state authority extended, these objects have been aimed at in this commonwealth ; and, although congressional power is necessary for their entire accomplishment, our militia may with propriety be considered as a military castle, built according to the most simple rules of civil architecture, uniting in it the ideas of strength, security and beauty. But, because the interior is not finished, rather than exert ourselves to complete it, shall we stand by, and witness the ravages of the inconsiderate who assail it, without an effort for its preservation ? Or, do we fear that the power of the national government has already become so great, that we should be overwhelmed in its vortex were we to attempt to maintain the bulwark of state sovereignty ? Surely we are not ready to abandon the lines of distinction, which constitute the federative character of our civil institutions. The principle s of freedom, in which our fathers instructed us, are not yet forgotten ; nor, were they so weak as to lay the foundation of our privileges in the sand. Respect for them, if not regard for our own interests, should arouse us to exertion. Have we forgot who were the framers of our civil constitutions ? who broke the slender ligament, which could not restrain the states from preying upon one another, and bound them together, by the ties of affection and interest, as a band of brothers, for mutual defence and protection ? Or, do we mean to reproach them, and say, that when they ceded to the government of the union the power to raise armies ; build navies, forts, and arsenals ; to regulate commerce, declare war, and to lay duties on imports and tonnage ; to make treaties, coin money, and levy and collect taxes upon the people, without the assent of the states, they only reserved to them a power, for their own security, which is now

- 103 -

thought not to be worth exercising? Were the Adams', Hancock, Washington, Henry, Madison, Munroe, Jay, Hamilton, King, Randolph, Marshall, Pendleton, Rutledge, and a hundred others, to whom we are indebted for our institutions of government, ignorant of the principles of civil liberty? Had they no knowledge of the human character? or, have we become inattentive to our own interests ? Is there no strength in this check to a consolidation of power? or, is there no utility in maintaining the union of the states ? If we are of either opinion, we widely differ from those great men, who, when they drew the lines of demarkation between the powers of the states, and of the federal government, limited the latter in its control over the physical power, in a manner which they considered essential to the independence of the states. It is to this very reservation that the militia owes its chief importance. Nothing but the high value which they attached to it, could have indjced the officers of the revolution to have volunteered their services for the organization and instruction of the militia, on the return of peace. It was the intrinsic value of the principle, and not ostentatious pride, that called them forth. Those, therefore, do the militia officers great injustice, who attribute their exertions to this motive. Let me ask such seriously, whether they really suppose that the gallant hero, who gave Burgoy ne his fatal blow ; or, that distinguished veteran, who received Cornwallis' sword, accepted the commands of militia divisions because they were delighted with the pageantry of publics parade ; or sought the flattery of distinction, at a military review? If such considerations influence the conduct of any of their successors, I trust there are not a few who are actuated by the same elevated motives and patriotic views, which dignified the conduct of their great exemplars. Let not, then, jealousy, parsimony and prejudice, confirm their sway : let the origin and purpose of the institution be contemplated; the character and motives of its founders investigated ; the great example of its early patrons remarked ; its moral and political influence observed ; the powers granted, and those retained, considered ; and the conviction must follow, that while the purity of liberty is to be preserved by our systems of education, its security depends on placing arms in the hands of the whole body of active freemen, and training them to their use. There is so much good sense and intelligence in the people of Massachusetts, that those who appeal to it, without

- 104 -

success, have good reason to doubt the correctness of their own views, and none need to fear the exposition of their whole design. While the stubbornness of her virtue has been much softened by the liberal views and generous policy of other parts of the union, she herself, in time, furnishes some examples worthy their notice. Her perseverance, in particular, for which she has been distinguished from her earliest history, was most strikingly exemplified in maintaining her determination to continue specie payments for her bills, during the late war. What strange notions were then abroad. What new theories promulgated. What dangers exposed. Amidst the general relaxation, Massachusetts alone, stood braced up, sustaining the ancient landmarks of property, against the delusive chimeras which threatened the country. The return of the other states to the standard of her principles, shews the importance of those masculine virtues of constancy, fidelity, and firmness, which governed her conduct. Never was the value of a single example, to a whole community, more advantageously displayed than in the instance referred to ; nor, can a better opportunity be offered for the exposition of the same virtues than the present state of the militia affords. It surely cannot be feared that the descendants of that rugged people, which Mr. Burke described, in his speech on American taxation in 1774, who took so much pride in their sacrifices for the support of specie payments, when the inroads, which are making in their militia system, are pointed out, and the consequences of its deterioration are disclosed, will remain insensible to its importance ; or, that they, who thus vigilantly guarded and preserved the vital principle of property, will abandon the chief mean of its security. The value of our militia, as an example should be estimated by the superiority of its discipline. If what was said of the Massachusetts militia during the war, by one, who had seen that of the other states, was true, " that its spirit and drill was as much superior to that of most other parts of the country, as the value of its specie currency was above their unredeemed bills," our pride, as well as interest should be engaged in supporting its elevated standard. But engaged in those objects which immediately affect its interests, the public have become regardless of the causes which threaten the dilapidation of the militia. Its attention must be called back to the consideration of first principles. The importance of the insti-

- 105 -

tution in a civil, as well as a military point of view should be pointed out by a discriminating mind. The public apathy is so great, that the loud voice of the prophet must be sounded from the hills to awaken its attention. The strong arm of the defender of our civil constitutions is required to be stretched out to point to us the way in which we should go. I ask you, then, sir, to express your opinion upon this subject? I ask you to exert that commanding influence, from the exercise of which your country now receives so many benefits, and save us from that desolating spirit which threatens the demolition of an institution, which is so essential to their long continuance. I have heretofore addressed governor Brooks as our military head. I invoke your aid, as our civil father. I know whose assistance I solicit. I address one who has lived nearly half the years of his country's existence ; whose mind is as vigorous as the native oak of our soil, and whose remembrance, of what to us are known only as historical facts, is as fresh as. the passing events of the day. The power of his patriarchal influence was felt in the late convention, which was called to consider the expediency of amending the state constitution, and which was composed of men who represented all the interests of the community ; judicious farmers, intelligent mechanics, talented clergymen, erudite lawyers, and learned judges. There the silverheaded draftsman of the constitution they were called to revise, seated on the right of the president, by a vote of the convention, leaning on his cane, was listening to every proposition, and watching the progress of reformation. When I thus beheld him, who, for his signal services to his country, had been honoured with its highest office, twenty years before, now in the simple dress of a humble citizen, guarding with a parent's care, those interests, rights, and liberties, which he had so much contributed to establish, and which he, in the course of nature, could but a few years more enjoy ; I felt appalled in his presence, and wondered at the seeming temerity of those who could propose alterations in the sacred instrument, without his sanction. But, when I entered one morning, the sage of fourscore years had risen to address the astonished assembly in defence of the constitutional right of the people to choose the executive council. His short speech was delivered in a tremulous voice, with a slow and emphatic manner. He uttered the axioms, only, of political wisdom; and made a commanding nod at the close of each sentence. The convention was motionless.

- 106 -

The first sound of his voice fixed those who were in the act of crossing the hall to their positions, like statues. The members near him seemed fastened to their seats ; while those at a distance reached forward on the benches, with their lips open, and their hands raised to their ears, listening to every word. All eyes were intent on one object, and at every pause, the whole assembly breathed as it were with one inhalation. At the termination of this address I heard the hum of approbation, and saw the cheering smiles, the shaking of hands, and witnessed the satisfaction which every one felt in being present at this solemn scene. I saw the vote taken, and the whole convention, under the influence of its enthusiasm, decide against its deliberate judgment, as its after proceedings shewed. When I have seen all this, I must know the power of his opinions, and the extent of his influence whose aid I request, with all that respect which is due to its possessor, and that solemnity which the occasion demands. I do not ask you for an exercise of eloquence like that I witnessed. That cannot again be enjoyed. The time, and place, and circumstances, are wanting. But I appeal to the same strong recollections, the same clear mind, and true tongue to tell me, whether the framers of our constitution and laws, did not consider the provisions which they made for arming the whole body of active citizens, and for organizing, officering, and disciplining them, as soldiers, as the surest safeguard of their liberties ? I ask, whether those attach too much importance to the institution, who, in the language of the bill of rights, proposed by the Virginia convention, consider " a well regulated militia, composed of the body of the people, trained to arms, as the proper, natural, and safe defence, of a free state?" Whether an officer, now in commission, is inflated with vanity, or is governed by the soundest good sense, when he says, in vindication of the militia, of which he is an ornament, " it is a condition of our being, that we cannot obtain or enjoy any thing without the use of appropriate means ; and, that the militia is one of those, by which we enjoy national security and individual freedom ?" Whether, in fact, an armed, organized, officered, and disciplined militia, " composed of the body of the people," is not essential to the maintenance of a free commonwealth ? The militia is an institution which unites, in itself, the power effectually to preserve the public peace, the public

- 107 -

order, and the public liberty, without endangering either. It is one of the great characteristics which distinguishes us. There is not, and there never was, an institution, among the nations of the earth, so well calculated, as this is, to give to freemen a perfect consciousness of their liberty, and of their capacity to preserve it. But the militia law, alone will not create this feeling. It must depend on the spirit with which the law is administered. In New England, generally, such is its effect. New Hampshire and Maine, particularly, are receiving the advantages of an increased attention to the subject. As it regards ourselves, if the inquiry be made, what are the leading causes of the consideration in which Massachusetts is held abroad, and among her sister states, it might be answered : her commerce, which is constantly developing new sources of profit ; her fisheries, which make hardy seamen, and add to the national wealth ; her manufactures, which are nearly equivalent to the supply of her domestic wants ; her agriculture, which makes the most of the soil ; her roads, bridges, canals, and internal improvements, which enable her citizens to sell at the greatest price, and purchase at the least expense ; her schools, which teach them how to conduct their enterprises; her charitable. institutions and hospitals, which keep the poor from suffering, and restore the imbecile to active industry ; her religious establishments, which elicit free inquiry, and govern by their moral influence ; her colleges and university, which enlarge the empire of the mind ; her wealth, the fruit of her own industry; her laws, the result of long established and steady habits ; and her militia, which maintains, protects, and preserves them all. But the advantage w r e experience and the security we enjoy, from the improved condition of the militia, in this commonwealth, is productive of those emotions of pride, and regret, which should never be mingled. Of pride, that the whole has been accomplished by the unaided exertions of the state authority ; and of regret, that the national government, which has the chief power over the militia, by intirely neglecting its cultivation, has retarded the extension of its benefits, in other states, and left the public mind in such doubt of its utility, as to threaten even the destruction of ours. It is no less singular than true, that while the free institutions of our country, by permitting the expression of those sentiments which arise from an unlimited range of thought, have received continued advan-

- 108 -

tage and strength, in all other branches of administration, the militia, alone, has seldom received the attentive consideration of the national counsels. While the laws regulating the judiciary, revenue, navigation, manufactures, internal improvements, and the army and navy, have ever been varied, and their condition meliorated, according to the sentiments of the people, or the necessities of the government, those relating to the militia, the main pillar of our freedom, have remained unimproved, and the subject has often been treated as a topic of electioneering declamation, or of jocular reproach. It is true, that in 1808, a law was passed making a small annual allowance for arming the soldiers ; but this will not make an exception to the observation, as the militia was probably more indebted to the embargo for this appropriation, than to any enlarged design in congress for the improvement of its general condition, or extended views of the permanent utility of the institution. It would have been fortunate for the militia if this inattention had been confined to congress ; but those who know the vigilance which has been so strikingly manifested in other branches of authority, in the executive department, will regret to learn, that even the system of infantry tactics, which has been ordered to be observed in the army, and which the law requires should consequently be observed by the militia, has never officially been made known to the state authorities. Those who feel most interested, cannot but sincerely lament that one of the greatest ill effects will probably arise from this omission. This is to be apprehended from the distribution of mutilated compilations, and what are called amended editions of the United States System of Infantry Tactics, which have been provided for the militia, in several of the states, the tendency of which, will be to defeat the great design of congress for establishing an uniform system of discipline, and field exercise for the army and militia, throughout the United States. But, if this system had been adapted to the militia organization, and the books of instruction containing it distributed from the war department ; had the artillery discipline been officially made known ; had the plan for a similar construction of the gun carriages used by the field artillery of the national forces and of the several states, which gave the French such great facility in recovering from disaster, been publicly recommended from the same source, whence the suggestion was privately made ; had, in fact, that fertile mind,

- 109 -

which has so much distinguished itself, by its systematic plans for the army operations, directed its attention to the militia establishment, and introduced into that, also, the amendments of which it is susceptible, such would have been its rapid advancement, that its friends would have had great reason to rejoice that it had not been left for any future administration, having less talent in its war department, to take up the great subject of militia improvement. When, on almost every side, such listlessness is observed, I ought to doubt, perhaps, whether I have not attached more importance to the institution than it deserves. This consideration would have been sufficient to have reduced the sanguineness of my own views, if they had not received the countenance of one, who, from his long experience in the army of the revolution, and in the highcst civil and military departments of the state, I have been led to consider, as the best living practical commentator on the militia system. Fearing, that, if I have not already tired you with the length of my communication, I should, if I were to add those further illustrations which a full investigation of the subject would require, I hasten to conclude it with an extract from one of the governor's late General Orders. " The militia system," says he, " from its having been long in operation, is now so well understood ; its benefit, in times of peril, has so often been experienced ; its influence on society, in time of peace, so continually felt ; and the order of its associations, all of which are subject to the regulation of law ; the harmony and beauty of its operations, from which so much gratification is derived on days of public festivity ; its effects upon the manners and morals of the people, in producing a love of order, and habits of subordination, in teaching them principles of obedience to the laws, and respect for the public authorities, are now so universally admitted ;, and its accordance with the spirit of our republican institutions, so generally ac knowledged, that it is justly considered, at once, as the pride, the security and the ornament of the state. " The militia system is the safeguard of freedom ; and with its destruction, the liberties of our country will cease. It was established for the protection of the property of the wealthy ; for the security of the liberties of

- 110 -

the free ; for the defence of our shores from invasion ; for the support of the civil power $ for the security of the state sovereignties, and for the maintenance of the national independence. It is not from the officers and soldiers alone, then, that the commander in chief expects support. It is to the wise, the opulent, the influential, the patriotic citizens of the state, who arc not enrolled, that he also appeals ; asking their aid to give respectability to the militia establishment, and their assistance in equalizing its burdens upon the different classes of the community, which are as much interested in its support, as those which perform its labours. It is in the fulness of hope, he appeals to them for their aid in such measures, as shall give stability and dignity, and regularity to its operations. It is not for himself alone, nor them ; No ! but for posterity and their country's sake, he invokes them to rally round its standard, and always to consider the militia as the palladium of their civil rights, and the shield of their dearest interests." I have the honor to be, with the most sincere wishes For your happiness, And with the utmost respect, Your most obedient And very humble servant, WILLIAM H. SUMNER. HON. JOHN ADAMS. Quincy, 19th May, 1823* DEAR SIR, I THANK you for the privilege of hearing read your manuscript dissertation concerning the militia. I scarcely know how to express the satisfaction and delight I have received from its perusal. It is so conformable to all my opinions concerning it from my cradle, that it seemed to be living my life over again. The delight of my childhood in the trainings, will never be obliterated from my memory. I have seen the march of the militia of Massachusetts to defend the town of Boston against the formidable armada of the duke D'Anville. I have seen the march of the same militia to Cambridge after the battle of

- 111 -

Lexington. I have seen the militia of Massachusetts on Boston common under governor Strong, assembled to defend us against the British armadas, and I never felt my existence with more cordial delight than 1 did upon these occasions. But I am in danger of running into a rhapsody of enthusiasm. You have proved it to be the most essential foundation of national defence. The most plentiful nursery of seamen and soldiers, armies and navies. These American states have owed their existence to the militia for more than two hundred years. Neither schools, nor colleges, nor town meetings have been more essential to the formation and character of the nation than the militia. You have proved its importance in a civil, political, and moral point of view. Improve its constitution by every prudent means, but never destroy its universality. A select militia will soon become a standing army, or a corps of Manchester yeomanry. I see with pride and delight that you come forward with such patriotism, talents and patience of thinking and inquiry, in the service of your country. I long to see your letter in print. Whenever the militia comes to an end, or is despised or neglected, I shall consider this union dissolved, and the liberties of North America lost forever. I am, dear sir, your friend, Relation, and fa^oi L ^&t> Humble servant, JOHN ADAMS. GENERAL WILLIAM H. SUMNER.

- 112 -

EXHIBIT 3
Benedict Crowell, Assistant Secretary of War (1919). America's Munitions, 1917-1918. Government Printing Office, Washington D.C.

- 113 -

EXHIBIT 4
The Center of Military Studies, of the United States Army, series of books of American Military History, and in Volume One The United States Army and the Forging of a Nation, 1775 1917, Chapter 2, Page 30-32 http://www.history.army.mil/books/AMH-V1/index.htm Colonial Militia For fighting Indians, colonial governments were in no position to form professional armies, even had the nature of Indian warfare lent itself to such a practice. Instead they fell back on the ancient British tradition of the militia. This tradition took on new vitality in America at the same time it was declining in England, where, after Oliver Cromwells time, most of the countrys battles were fought on the sea and in foreign lands. The British government came to rely on its regular army and navy just as other European states did, despite a deep political tradition of opposition to a standing army. Each of the thirteen colonies (except for Pennsylvania, where Quaker influence was dominant) enacted laws providing for a compulsory militia organization generally based on the principle of the Saxon fyrd that required every able-bodied free male from sixteen to sixty to render military service. Each member of the militia was obligated to appear for training at his county or town seat a certain number of days each year, to provide himself with weapons, and to hold himself in readiness for call in case of Indian attack or other emergency. Each colony maintained a separate militia establishment, and each concentrated on the problems of protecting or extending its own frontiers. Cooperation among the militias of the various colonies was confined to specific expeditions in which two or more colonies had an interest. The militia was by and large a local institution, administered in county and town or township under the general militia laws of each colony. It was closely integrated with the social and economic structure of colonial society. Though the royal governors or colonial assemblies appointed the general officers and the colonels who commanded militia districts, the companies in each locality usually elected their own officers. This practice seemingly put a premium on popularity rather than wealth or ability, but rank in the militia generally corresponded with social station in the community. Each militiaman was expected to provide his own weaponusually a smoothbore musketand ammunition, clothing, and food for a short expedition, just as the British knight had been required to provide his own horse, armor, and suitable weapons for feudal warfare. Local authorities maintained reserve supplies of muskets to arm those too poor to buy them and collected stores of ammunition and sometimes small cannon that could be dragged along through the wilderness. For very long campaigns, the colonial government had to take charge, the assembly appropriating the money for supplies and designating the supply officers or contractors to handle purchasing and distribution. Although the militia was organized into units by county or township, it hardly ever fought that way. Instead the local unit served as a training and mobilization base from which individuals could be recruited for active operations. When a particular area of a colony was threatened, the colonial government would direct the local militia commander to call out his men and the commander would mobilize as many as he could or as he thought necessary, selecting the younger and more active men for service. For

- 114 -

expeditions into the Indian country, usually individuals from many localities were chosen and formed into improvised units for the occasion. Selection was generally voluntary, but local commanders could be legally empowered to draft both men and property if necessary. Drafted men were permitted the option of hiring substitutes, a practice that favored the well-to-do. Volunteer, drafted man, and substitute, all paid while on active duty, alike insisted on the militiamans prerogative to serve only a short period and return to home and fireside as quickly as possible. As a part-time citizen army, the militia was naturally not a well-disciplined, cohesive force comparable to the professional army of the age. Criticism of the militia was frequent. Moreover, its efficiency, even for Indian fighting, varied from colony to colony and even from locality to locality within the same colony, depending on the ability and determination of commanders and the presence or absence of any threat. When engaged in eliminating an Indian threat to their own community, militiamen might be counted on to make up in enthusiasm what they lacked in discipline and formal training. When the Indian threat was pushed westward, people along the eastern seaboard tended to relax. Training days, one day a week in the early years of settlement, fell to one a month or even one a year. Festivities rather than military training increasingly became the main purpose of many of the gatherings, and the efficiency of the militia in these regions declined accordingly. In some towns and counties, however, the military tradition was kept alive by volunteers who formed their own units, purchased distinctive uniforms, and prepared themselves to respond in case of war or emergency. These units became known as the volunteer militia and were the predecessors of the National Guard of the United States. In Pennsylvania, which lacked a militia law until 1755 and then passed one that made militia service voluntary rather than compulsory, all units were composed of volunteers. One of the more unpleasant manifestations of the militia system in America occurred in those colonies, most but by no means all in the south, with a large slave population. Fears of slave uprising and the rapidly growing imbalance between black and white populations in some areas of the colonies led to the establishment of militia units focused on detecting and defeating the smallest sign of trouble among the African slave population. In South Carolina in 1739, almost one hundred slaves organized themselves, seized weapons, and killed several white colonists before being suppressed by hastily raised militia soldiers. The resulting fear and legislative attempts to deal with the issue ensured that a primary focus of an organized militia in South Carolina, and later the rest of the southern colonies, was on internal security against the slaves. On the frontier, where Indian raids were a constant threat, training days were frequent and militia had to be ready for instant action. Except on the frontier, where proficiency in this sort of warfare was a matter of survival, it is doubtful that colonial militia in general were really adept in forest fighting. Training days were devoted not to the techniques of fighting Indians but to learning the drill and motions required on a European battlefield. When raids were to be conducted against the Indians, often popularly elected officers selected individual volunteers from the militia to serve for the duration of the expedition. Thus the militia existed mostly as an internal defense force and a pool of trained manpower for ad hoc colonial expeditions against the Indians or other enemies, such as the nearby French Canadians.

- 115 -

Pages 40-42 The American Rifle By the end of the French and Indian War, a new weapon had appeared on the frontier in Pennsylvania and to the south, one far better suited to guerrilla warfare than was the musket. This weapon would later become renowned as the Kentucky rifle. The effects of rifling a gun barrel, that is, of making spiral grooves that imparted a spinning effect to the bullet, giving it greater range and accuracy, had been known for some centuries in Germany and Switzerland. But the early rifles made there were too heavy and slow to load to be of military use. The Germans who settled in Pennsylvania developed, around 1750, a much lighter model, far easier and faster to load. They used a bullet smaller than the bore and a greased patch to keep the fit tight. This early American rifle could, in proper hands, hit a target the size of a mans head at 200 yards. Despite its superior range and accuracy, the rifle was to undergo almost a hundred years of development before it would supplant the musket as the standard infantry weapon. At first, each individual piece was handmade and each required a custom-made bullet mold. The standard bayonet would fit none of them. The rifle was effective only in the hands of an expert trained in its use. The rate of fire was only about one-third that of the musket; and therefore, without bayonet, the rifle could hardly be used by troops in the line. For the guerrilla tactics of the frontier, however, where men did not fight in line but from behind trees, bushes, and rocks, it was clearly a superior weapon. Like the tactics of the American forest, it would have its place in any future war fought in America. Pages 114 116 The Militia Time and again Washington pointed out that the only alternative to a large standing army was an effective militia, yet his efforts and those of Knox and Hamilton to make the militia more effective by applying federal regulation failed. Congress passed the basic militia law in May 1792. It called for the enrollment of "every able-bodied white male citizen" between eighteen and forty-five and the organization of the militia into divisions, brigades, regiments, battalions, and companies by the individual states, each militiaman providing his own "arms, munitions, and other accouterments." The law that survived the legislative process bore little resemblance to the one Washington and Knox had proposed. It left compliance with its provisions up to the states and in the end did little more than give federal recognition to the colonial militia organization that had plagued Washington during the Revolution. Despite these limitations, the act did preserve the idea of a citizen soldiery, a concept of profound importance to the future of the country; and it also provided for the creation of special volunteer units to supplement the obligatory mass system. The volunteers, organized into companies, met regularly for military

- 116 -

training under elected officers. With antecedents in the organized military associations of the colonial era, this volunteer force later became the National Guard. Training and discipline were the keys to an effective militia, but despite the act of 1792 the militia was to be neither disciplined nor well trained. When permitted to fight in less standardized fashion, either from behind fortifications or as irregulars, militiamen could give a good account of themselves. But only highly trained troops could be expected to successfully employ the complicated, formal linear tactics of the day. Strictly interpreting the constitutional provision that reserved to the states the authority to train the militia, Congress left the extent and thoroughness of training completely to the states and merely prescribed Steubens system of discipline and field exercises as the rules to be followed. The limitations placed on the length of tours of duty and the circumstances for which the militia might be called into federal service further impaired its usefulness. No militiamen could be compelled to serve more than three months in any one year, nor could the President order the militia to duty outside the United States. The effect of these limitations would be readily apparent during the War of 1812. The President first exercised his authority to employ militia for suppressing insurrection and executing the laws of Congress in 1794, when he sent a large force of militia under Maj. Gen. Henry Lee into western Pennsylvania during the Whiskey Rebellion. Lee encountered no resistance. As a show of force, the demonstration was impressive; as an indication of the military value of the militia in an emergency, it was inconclusive.

- 117 -

The Constitution of the United States Militia Clause, United States Congress 1st Congress Article 1 - The Legislative Branch Section 8 - Powers of Congress The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and Post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

EXHIBIT 5

- 118 -

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

- 119 -

EXHIBIT 6
Second Amendment to the Constitution of the United States, United States Congress 2nd Congress: 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.

- 120 -

EXHIBIT 7
Militia Acts of 1792, First Militia Act, passed May 2, 1792 Militia Act of 1792, Second Congress, Session I. Chapter XXVIII Passed May 2, 1792, providing for the authority of the President to call out the Militia Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection. Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session. Sec. 3. Provided always, and be it further enacted, That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time. Sec. 4. And be it further enacted, That the militia employed in the service of the United States, shall receive the same pay and allowances, as the troops of the United States, who may be in service at the same time, or who were last in service, and shall be subject to the same rules and articles of war: And that no officer, non-commissioned officer or private of the militia shall be compelled to serve more than three months in any one year, nor

- 121 -

more than in due rotation with every other able-bodied man of the same rank in the battalion to which be belongs. Sec. 5. And be it further enacted, That every officer, non-commissioned officer or private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court martial; and such officers shall, moreover, be liable to be cashiered by sentence of a court martial: and such non-commissioned officers and privates shall be liable to be imprisoned by the like sentence, or failure of payment of the fines adjudged against them, for the space of one calendar month for every five dollars of such fine. Sec. 6. And be it further enacted, That court martial for the trial of militia be composed of militia officers only. Sec. 7. And be it further enacted, That all fines to be assessed, as aforesaid, shall be certified by the presiding officer of the court martial before whom the same shall be assessed, to the marshal of the district, in which the delinquent shall reside, or to one of his deputies; and also the supervisor of the revenue of the same district, who shall record the said certificate in a book to be kept for that purpose. The said marshal or his deputy shall forthwith proceed to levy the said fines with costs, by distress and sale of the goods and chattels of the delinquent, which costs and manner of proceeding, with respect to the sale of the goods distrained, shall be agreeable to the laws of the state, in which the same shall be, in other cases of distress; and where any non-commissioned officer or private shall be adjudged to suffer imprisonment, there being no goods or chattels to be found, whereof to levy the said fines, the marshal of the district or his deputy may commit such delinquent to gaol, during the term, for which he shall be so adjudged to imprisonment, or until the fine shall be paid, in the same manner as other persons condemned to fine and imprisonment at the suit of the United States, may be committed. Sec. 8. And be it further enacted, That the marshals and their deputies shall pay all such fines by them levied to the supervisor of the revenue, in the district in which they are collected, within two months after they shall have received the same, deducting therefrom five per centum, as a compensation for their trouble; and in case of failure, the same shall be recoverable by action of debt or information in any court of the United States, of the district, in which such fines shall be levied, having cognizance therefor, to be sued for, prosecuted and recovered, in the name of the supervisor of the district, with interest and costs. Sec. 9. And be it further enacted, That the marshals of the several districts and deputies, shall have the same powers in executing the laws of the United States, as sheriffs, and their deputies in the several states have by law, in executing the laws of their respective states.

- 122 -

Sec. 10. And be it further enacted, That this act shall continue and be in force, for and during the term of two years, and from thence to the end of the next session of Congress thereafter, and no longer. APPROVED, May 2, 1792.

- 123 -

EXHIBIT 8
Militia Acts of 1792, Second Militia Act, passed May 8, 1792. The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia. An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States. I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes. II. And be it further enacted, That the Vice-President of the United States, the Officers, judicial and executives, of the government of the United States; the members of both houses of Congress, and their respective officers; all custom house officers, with the clerks; all post officers, and stage-drivers who are employed in the care and conveyance of the mail of the post office of the United States; all Ferrymen employed at any ferry on the post road; all inspectors of exports; all pilots, all mariners actually employed in the sea service of any citizen or merchant within the United States; and all persons who now are or may be hereafter exempted by the laws of the respective states, shall be and are

- 124 -

hereby exempted from militia duty, notwithstanding their being above the age of eighteen and under the age of forty-five years. III. And be it further enacted, That within one year after the passing of the Act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions, and companies, as the legislature of each state shall direct; and each division, brigade, and regiment, shall be numbered at the formation thereof; and a record made of such numbers of the Adjutant-General's office in the state; and when in the field, or in serviced in the state, such division, brigade, and regiment shall, respectively, take rank according to their numbers, reckoning the first and lowest number highest in rank. That if the same be convenient, each brigade shall consist of four regiments; each regiment or two battalions; each battalion of five companies; each company of sixty-four privates. That the said militia shall be officered by the respective states, as follows: To each division on Major-General, with two Aids-de-camp, with the rank of major; to each brigade, one brigadier-major, with the rank of a major; to each company, one captain, one lieutenant, one ensign, four serjeants, four corporals, one drummer, and one fifer and bugler. That there shall be a regimental staff, to consist of one adjutant, and one quartermaster, to rank as lieutenants; one paymaster; one surgeon, and one surgeon's mate; one serjeant-major; one drum- major, and one fife-major. IV. And be it further enacted, That out of the militia enrolled as is herein directed, there shall be formed for each battalion, as least one company of grenadiers, light infantry or riflemen; and that each division there shall be, at least, one company of artillery, and one troop of horse: There shall be to each company of artillery, one captain, two lieutenants, four serjeants, four corporals, six gunners, six bombardiers, one drummer, and one fifer. The officers to be armed with a sword or hanger, a fusee, bayonet and belt, with a cartridge box to contain twelve cartridges; and each private of matoss shall furnish themselves with good horses of at least fourteen hands and an half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps. Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for pistols. That each company of artillery and troop of house shall be formed of volunteers from the brigade, at the discretion of the Commander in Chief of the State, not exceeding one company of each to a regiment, nor more in number than one eleventh part of the infantry, and shall be uniformly clothed in raiments, to be furnished at their expense, the colour and fashion to be determined by the Brigadier commanding the brigade to which they belong. V. And be it further enacted, That each battalion and regiment shall be provided with the state and regimental colours by the Field-Officers, and each company with a drum and fife or bugle-horn, by the commissioned officers of the company, in such manner as the legislature of the respective States shall direct. VI. And be it further enacted, That there shall be an adjutant general appointed in each state, whose duty it shall be to distribute all orders for the Commander in Chief of the

- 125 -

State to the several corps; to attend all publick reviews, when the Commander in Chief of the State shall review the militia, or any part thereof; to obey all orders from him relative to carrying into execution, and perfecting, the system of military discipline established by this Act; to furnish blank forms of different returns that may be required; and to explain the principles of which they should be made; to receive from the several officers of the different corps throughout the state, returns of the militia under their command, reporting the actual situation of their arms, accoutrements, and ammunition, their delinquencies, and every other thing which relates to the general advancement of good order and discipline: All which, the several officers of the division, brigades, regiments, and battalions are hereby required to make in the usual manner, so that the said adjutant general may be duly furnished therewith: From all which returns be shall make proper abstracts, and by the same annually before the Commander in Chief of the State. VII. And be it further enacted, That the rules of discipline, approved and established by Congress, in their resolution of the twenty-ninth of March, 1779, shall be the rules of discipline so be observed by the militia throughout the United States, except such deviations from the said rules, as may be rendered necessary by the requisitions of the Act, or by some other unavoidable circumstances. It shall be the duty of the Commanding Officer as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline. VIII. And be it further enacted, That all commissioned officers shall take rank according to the date of their commissions; and when two of the same grade bear an equal date, then their rank to be determined by lots, to be drawn by them before the Commanding officers of the brigade, regiment, battalion, company or detachment. IX. And be it further enacted That if any person whether officer or solder, belonging to the militia of any state, and called out into the service of the United States, be wounded or disabled, while in actual service, he shall be taken care of an provided for at the publick expense. X. And be it further enacted, That it shall be the duty of the brigade inspector, to attend the regimental and battalion meeting of the militia composing their several brigades, during the time of their being under arms, to inspect their arms, ammunition and accoutrements; superintend their exercise and maneuvres and introduce the system of military discipline before described, throughout the brigade, agreeable to law, and such orders as they shall from time to time receive from the commander in Chief of the State; to make returns to the adjutant general of the state at least once in every year, of the militia of the brigade to which he belongs, reporting therein the actual situation of the arms, accoutrement, and ammunition, of the several corps, and every other thing which, in his judgment, may relate to their government and general advancement of good order and military disciple; an adjutant general shall make a return of all militia of the state, to the Commander in Chief of the said state, and a duplicate of the same to the president of the United States.

- 126 -

And whereas sundry corps of artillery, cavalry and infantry now exist in several of the said states, which by the laws, customs, or usages thereof, have not been incorporated with, or subject to the general regulation of the militia. XI. Be it enacted, That such corps retain their accustomed privileges subject, nevertheless, to all other duties required by this Act, in like manner with the other militias.

- 127 -

EXHIBIT 9
Militia Act of 1795, passed February 28, 1795 [Note: Act of February 28, 1795, made small revisions in Sections 2, 4, 5, and 10 of Act of May 2, 1792. The 1795 act was the authority for ruling in Houston v. Moore, 1820. Other revisions were enacted April 18, 1814] The 1795 Act For Calling Forth The Militia An Act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the act now in force for those purposes, 28 February 1795. That whenever the United States shall be invaded, or be in imminent danger of invasion, from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the state or states, most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders, for that purpose, to such officer or officers of the militia as he shall think proper. And in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the Executive, (when the legislature cannot be convened,) to call forth such number of the militia of any other state or states, as may be applied for, as he may judge sufficient to suppress such insurrection. SEC. 2. That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress. SEC. 3. That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abode, within a limited time. SEC. 4. That the militia employed in the service of the United States shall be subject to the same rules and articles of war as the troops of the United States: and that no officer, non-commissioned officer, or private, of the militia, shall be compelled to serve more than three months after his arrival at the place of rendezvous, in any one year, nor more than in due rotation with every other able-bodied man of the same rank in the battalion to which he belongs.

- 128 -

SEC. 5. That every officer, non-commissioned officer, or private, of the militia, who shall fail to obey the orders of the President of the United States, in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court-martial; and such officer shall, moreover, be liable to be cashiered by sentence of a court-martial, and be incapacitated from holding a commission in the militia, for a term not exceeding twelve months, at the discretion of the said court: and such non-commissioned officers and privates shall be liable to be imprisoned, by a like sentence, on failure of the payment of fines adjudged against them, for one calendar month, for every five dollars of such fine. SEC. 6. That courts-martial for the trial of militia, shall be composed of militia officers only. SEC. 7. That all fines to be assessed, as aforesaid, shall be certified by the presiding officer of the court-martial before whom the same shall be assessed, to the marshal of the district in which the delinquent shall reside, or to one of his deputies and also to the supervisor of the revenue of the same district, who shall record the said certificate in a book to be kept for that purpose. The said marshal, or his deputy, shall forthwith proceed to levy the said fines, with costs, by distress and sale of the goods and chattels of the delinquent; which costs, and the manner of proceeding, with respect to the sale of the goods distrained, shall be agreeable to the laws of the state in which the same shall be, in other cases of distress. And where any non-commissioned officer or private shall be adjudged to suffer imprisonment, there being no goods or chattels to be found whereof to levy the said fines, the marshal of the district, or his deputy, may commit such delinquent to jail, during the term for which he shall be so adjudged to imprisonment, or until the fine shall be paid, in the same manner as other persons condemned to fine and imprisonment at the suit of the United States may be committed. SEC. 8. That the marshals and their deputies shall pay all such fines by them levied, to the supervisor of the revenue in the district in which they are collected, within two months after they shall have received the same, deducting therefrom five per centum as a compensation for their trouble; and in case of failure, the same shall be recoverable by action of debt or information, in any court of the United States, of the district in which such fines shall be levied, having cognizance thereof, to be sued for, prosecuted, and recovered, in the name of the supervisor of the district, with interest and costs. SEC. 9. That the marshals of the several districts, and their deputies, shall have the same powers, in executing the laws of the United States, as sheriffs, and their deputies, in the several states, have by law in executing the laws of the respective states. SEC. 10. That the act entitled "An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;" passed the 2d day of May, 1792, shall be, and the same is hereby, repealed. [Approved, February 28, 1795.]

- 129 -

EXHIBIT 10
Militia Act of 1808, April 23, 1808, An Act Making Provision for Arming and Equipping the Whole Body of the Militia of the United States

- 130 -

EXHIBIT 11
Militia Act of 1862, (12 Stat. 597, enacted July 17, 1862), which allowed African-Americans to serve in the militias of the United States. The Militia Act of 1862 CHAP. CCI.An Act to amend the Act calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions, approved February twenty-eight, seventeen hundred and ninety-five, and the Acts amendatory thereof, and for other Purposes. .... SEC. 12. And be it further enacted, That the President be, and he is hereby, authorized to receive into the service of the United States, for the purpose of constructing intrenchments, or performing camp service or any other labor, or any military or naval service for which they may be found competent, persons of African descent, and such persons shall be enrolled and organized under such regulations, not inconsistent with the Constitution and laws, as the President may prescribe. SEC. 13. And be it further enacted, That when any man or boy of African descent, who by the laws of any State shall owe service or labor to any person who, during the present rebellion, has levied war or has borne arms against the United States, or adhered to their enemies by giving them aid and comfort, shall render any such service as is provided for in this act, he, his mother and his wife and children, shall forever thereafter be free, any law, usage, or custom whatsoever to the contrary notwithstanding: Provided, That the mother, wife and children of such man or boy of African descent shall not be made free by the operation of this act except where such mother, wife or children owe service or labor to some person who, during the present rebellion, has borne arms against the United States or adhered to their enemies by giving them aid and comfort. SEC. 14. And be it further enacted, That the expenses incurred to carry this act into effect shall be paid out of the general appropriation for the army and volunteers. SEC. 15. And be it further enacted, That all persons who have been or shall be hereafter enrolled in the service of the United States under this act shall receive the pay and rations now allowed by law to soldiers, according to their respective grades: Provided, That persons of African descent, who under this law shall be employed, shall receive ten dollars per month and one ration, three dollars of which monthly pay may be in clothing. APPROVED, July 17, 1862.

- 131 -

EXHIBIT 12
From the advisory opinion of the Massachusetts Supreme Court, Opinions of the Justices 80 Massachusett 614, 80 Gray 614. The opinion says that states cannot change the membership of the militia so as to let blacks serve in the militia. It also provides an excellent legal history of the militia from colonial times to the eve of the Civil War, as seen by non-historians in 1859. Many of the issues raised about the historical and modern day status of the militia are discussed. For example, this Court clearly viewed that there was only one institution of the militia, that the militia had always acted under government control, and it discusses (yet again) the meaning of the 'provide for the organizing, arming and disciplining' clause of the Constitution and how that clause allows the federal government to say that members of the militia are between 18 and 45 years of age and not 20 and 50 years of age. "Interrogatories [Questions] Propounded by order of the Governor and Council to the Supreme Judicial Court: "Whether the Legislature of this Commonwealth can constitutionally provide for the enrollment in the militia of any persons other than those enumerated in the Act of Congress, approved May 8, 1792, entitled, 'An Act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States'? "Whether the aforesaid Act of Congress, as to all matters therein provided for, and except as amended by subsequent Acts, has such force in this Commonwealth, independently of or notwithstanding any State legislation, that all officers under the State government, civil and military, are bound by its provisions? ... "We are first, as preliminary to any direct answer to the inquisitions, to consider what the militia was, as understood in the Constitution and laws, both of this commonwealth [Massachusetts] and of the United States. It was an institution, not only theoretically known, but practically adopted and carried into effect, in all the colonies and provinces before the Revolution, and even before the formation of a congress for any purpose. The utility and capabilities of this institution for military purposes had been put to a severe test by the events of the Revolution, and were well understood before either of these constitutions was adopted. "Prior to the Revolution, the establishment and control of this institution was within the jurisdiction of the respective colonial and provincial governments, because these were the only local governments, acting directly upon the rights and interests of the inhabitants, within their respective territorial limits. It was constituted by designating, setting apart, and putting in military array, under suitable military officers, all the able-bodied male inhabitants of the province,

- 132 -

with certain specified exceptions, and was held in readiness upon certain exigencies, and in the manner provided by law, to act under military orders as a military armed force. It was the constitution of a citizen soldiery, in contradistinction to a regular or standing army. Such having been the jurisdiction of the several provincial governments, it naturally devolved upon the respective state governments after the Declaration of Independence, and during the early years of the revolutionary war. During that period, all were acting under the articles of confederation, which was rather a league between the states for mutual defence, than a government acting directly upon the people of these states. [The Court discusses the adoption of the U.S. Constitution and its creation of two level of governments and then turns to discuss the power over the militia under the Constitution.] "...The establishment of a militia was manifestly intended to be effected by arranging the ablebodied men in each and all the states in military array, arming and placing then under suitable officers, but without forming them into a regular standing army, to be ready as exigency should require, to defend and protect the rights of all, whether placed under the administration of the local [state] or general [federal] government, to be called out by either in the manner and for the purposes determined by the Constitution and laws of either. It was one and the same militia, for both purposes, under one uniform organization and discipline, and to be commanded by the same officers. Were it otherwise, were the general and the state governments to have their own militia, the results would have been that there would be, within the bosom of each state, a large embodied military force, not by its organization amenable to the laws or subject to the orders of the state government; and also a similar force, one which the general government would have no right to call for aid, to repel invasion, suppress insurrection, or execute the laws; a state of things, not only rendering each to a great extent inefficient and powerless, but also entirely destructive of that harmony and union which were intended to characterize the combined actions of both governments. We find therefore that the functions of both are called into activity, in constituting this military force and carrying it into practical operation. "The Constitution of the United States having charged the general government with the administration of the foreign relations of the whole Union, and the military defence of the whole, provides, [article 1, section 8) 'That Congress shall have the power to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasions: to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress.' "Organizing' obviously includes the power of determining who shall compose the body known as the militia. The general principle is, that a militia shall consist of

- 133 -

the able-bodied male citizens. But this description is too vague and indefinite to be laid down as a practical rule; it requires a provision of positive law to ascertain the exact age, which shall be deemed neither too young nor too old to come within the description. One body of legislators might think the suitable ages to be from 18 to 19, others from 16 to 30 or 40, others from 20 to 50. Here the power is given to the general government to fix the age precisely, and thereby to put an end to doubt and uncertainty; and the power to determine who shall compose the militia, when executed, equally determines who shall not be embraced in it, because all not selected are necessarily excluded. "The question upon the construction of this provision of the Constitution is, whether this power to determine who shall compose the militia is exclusive. And we are of opinion that it is. A power when vested in the general government is not only exclusive when it is so declared in terms, or when the State is prohibited from the exercise of the like power, but also when the exercise of the same power by the State is superceded, and necessarily impracticable and impossible after its exercise by the general government. For instance, when the general government have exercised their power to establish a uniform system of bankruptcy, that is, laws for sequestering and administering the estate of a living insolvent debtor; when one set of commissioners and assignees of such estate have taken possession of property, with power to sell and dispose of it, and distribute the proceeds, another set of officers, under another law, cannot take and dispose of the same property. The one power is necessarily repugnant to the other; if one is paramount, the other is void. We think the present case is similar. The general government having authority to determine who all and who may not compose the militia, and having so determined the State government has no legal authority to prescribe a different enrollment. "This power was carried into execution by the act of Congress of May, 1792, being an 'Act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States'. This act specially directs who shall be, and by necessary implication, who may not be enrolled in the militia. This is strengthened by a provision, that each State may by law exempt persons embraced in the class for enrollment, according as the peculiar form and particular organization of its separate government may require; but there is no such provision for adding to the class to be enrolled. "We are therefore of opinion that the Legislature of the Commonwealth cannot constitutionally provide for the enrollment in the militia of any persons other than those enumerated in the act of Congress of May, 1792, hereinbefore cited. "We do not intend, by the foregoing opinion, to exclude the existence of a power in the State, to provide by law for arming and equipping other bodies of men for special service of keeping guard, and making defence, under special exigencies or otherwise, in any case not coming within the prohibition of that clause in the Constitution, article 1, section 10, which withholds from the State the power 'to

- 134 -

keep troops;' but such bodies, however armed or organized could not be deemed any part of 'The Militia,' as contemplated and understood in the Constitution and laws of Massachusetts and of the United States, and, as we understand, in the question propounded for our consideration. "Nor is this question, in our opinion, affected by the article 2 of the Amendments of the Constitution of the following tenor: '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.' "This, like similar provisions in our own declaration of rights, declares a great general right, leaving it for other more specific constitutional provision or to legislation to provide for the preservation and practical security of such right, and for influencing and governing the judgment and conscience of all legislators and magistrates, who are thus required to recognize and respect such rights. "In answer to the second question proposed, we are of opinion that the Act of Congress above cited, as to all matters therein provided for, except so far as it may have been changed by independent acts, has such force in this Commonwealth, independently of and notwithstanding any State legislation, that all officers under the State government, civil and military, are bound by its provisions. (signed) Lemuel Shaw Theron Metcalf George T. Bigelow Pliny Merrick Ebenezer R. Hoar Boston, December 23, 1859

- 135 -

EXHIBIT 13
Efficiency of Militia Bill H.R. 11654, of June 28, 1902, also known as the Dick Act and as the Militia Act of 1903 (32 Stat. 775) January 21, 1903. [Public, No. 83.] [CHAPTER. 186] AN ACT To promote the efficiency of the militia, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classesthe organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia. Sec. 2. That the Vice-President of the United States, the officers, judicial and executive, of the Government of the United States, the members and officers of each House of Congress, persons in the military or naval service of the United States, all custom-house officers, with their clerks, postmasters and persons employed by the United States in the transmission of the mail, ferrymen employed at any ferry on a post-road, artificers and workmen employed in the armories and arsenals of the United States, pilots, manners actually employed in the sea service of any citizen or merchant within the United States, and all persons who are exempted by the laws of the respective States or Territories shall be exempted from militia duty, without regard to age: Provided, That nothing in this Act shall be construed to require or compel any member of any well-recognized religious sect or organization at present organized and existing whose creed forbids its members to participate in war in any form, and whose religious convictions are against war or participation therein, in accordance with the creed of said religious organization, to serve in the militia or any other armed or volunteer force under the jurisdiction and authority of the United States. Sec. 3. That the regularly enlisted, organized, and uniformed active militia in the several States and Territories and the District of Columbia who have heretofore participated or shall hereafter participate in the apportionment of the annual appropriation provided by section sixteen hundred and sixty-one of the Revised Statutes of the United States, as amended, whether known and designated as National Guard, militia, or otherwise, shall constitute the organized militia. The organization, armament, and discipline of the

- 136 -

organized militia in the several States and Territories and in the District of Columbia shall be the same as that which is now or may hereafter be prescribed for the Regular and Volunteer-Armies of the United States, within five years from the date of the approval of this Act: Provided, That the President of the United States, in time of peace, may by order fix the minimum number of enlisted men in each company, troop, battery, signal corps, engineer corps, and hospital corps: And provided further, That any corps of artillery, cavalry and infantry existing in any of the States at the passage of the Act of May eighth, seventeen hundred and ninety-two, which, by the laws, customs or usages of the said States have been in continuous existence since the passage of said Act under its provisions and under the provisions of Section two hundred and thirty-two and Sections sixteen hundred and twenty-five to sixteen hundred and sixty, both inclusive, of Title sixteen of the Revised Statutes of the United States relating to the Militia, shall be allowed to retain their accustomed privileges, subject, nevertheless, to all other duties required by law in like manner as the other Militia. Sec. 4. That whenever the United States is invaded, or in danger of invasion from any foreign nation, or of rebellion against the authority of the Government of the United States, or the President is unable, with the other forces at his command, to execute the laws of the Union in any part thereof, it shall be lawful for the President to call forth, for a period not exceeding nine months, such number of the militia of the State or of the States or Territories or of the District of Columbia as he may deem necessary to repel such invasion, suppress such rebellion, or to enable him to execute such laws, and to issue his orders for that purpose to such officers of the militia as he may think proper. Sec. 5. That whenever the President calls forth the militia of any State or Territory or of the District of Columbia to be employed in the service of the United States, he may specify in his call the period for which, such service is required, not exceeding nine months, and the militia so called shall continue to serve during the term so specified, unless sooner discharged by order of the President. Sec. 6. That when the militia of more than one State is called into the actual service of the United States by the President he may, in his discretion, apportion them among such States or Territories or to the District of Columbia according to representative population. Sec. 7. That every officer and enlisted man of the militia who shall be called forth in the manner hereinbefore prescribed and shall be found fit for military service shall be mustered or accepted into the United States service by a duly authorized mustering officer of the United States: Provided, however, That any officer or enlisted man of the militia who shall refuse or neglect to present himself to such mustering officer upon being called forth as herein prescribed shall be subject to trial by court-martial, and shall be punished as such court-martial may direct. Sec. 8. That courts-martial for the trial of officers or men of the militia, when in the service of the United States, shall be composed of militia officers only.

- 137 -

Sec. 9. That the militia, when called into the actual service of the United States, shall be subject to the same Rules and Articles of War as the regular troops of the United States. Sec. 10. That the militia, when called into the actual service of the United States, shall, during their time of service, be entitled to the same pay and allowances as are or may be provided by law for the Regular Army. Sec. 11. That when the militia is called into the actual service of the United States, or any portion of the militia is accepted under the provisions of this Act, their pay shall commence from the day of their appearing at the place of company rendezvous. But this provision shall not be construed to authorize any species of expenditure previous to arriving at such places of rendezvous which is not provided by existing laws to be paid after their arrival at such places of rendezvous. Sec. 12. That there shall be appointed in each State, Territory and District of Columbia, an Adjutant-General, who shall perform such duties as may be prescribed by the laws of such State, Territory, and District, respectively, and make returns to the Secretary of War, at such times and in such form as he shall from time to time prescribe, of the strength of the organized militia, and also make such reports as may from time to time be required by the Secretary of War. That the Secretary of War shall, with his annual report of each year, transmit to Congress an abstract of the returns and reports of the adjutants- general of the States, Territories', and the District of Columbia, with such observations thereon as he may deem necessary for the information of Congress. Sec. 13. That the Secretary of War is hereby authorized to issue, on the requisitions of the governors of the several States and Territories, or of the commanding general of the militia of the District of Columbia, such number of the United States standard service magazine arms, with bayonets, bayonet scabbards, gun slings, belts, and such other necessary accoutrements and equipments as are required for the Army of the United States, for arming all of the organized militia in said States and Territories and District of Columbia, without charging the cost or value thereof, or any which have been issued since December first, nineteen hundred and one, or any expense connected therewith, against the allotment to said State, Territory, or District of Columbia, out of the annual appropriation provided by section sixteen hundred and sixty-one of the Revised Statutes, as amended, or requiring payment therefor, and to exchange, without receiving any money credit therefor, ammunition, or parts thereof, suitable to the new arms, round for round, for corresponding ammunition suitable to the old arms theretofore issued to said State, Territory, or District by the United States: Provided, That said rifles and carbines and other property shall be receipted for and shall remain the property of the United States and be annually accounted for by the governors of the States and Territories as now required bylaw, and that each State, Territory, and District shall, on receipt of the new arms, turn in to the Ordnance Department of the United States Army, without receiving any money credit therefor, and without expense for transportation, all United States rifles and carbines now in its possession.

- 138 -

To provide means to carry into effect the provisions of this section, the necessary money to coyer the cost of exchanging or issuing the new arms, accoutrements, equipments, and ammunition to be exchanged or issued hereunder is hereby appropriated out of any moneys in the Treasury not otherwise appropriated. Sec. 14. That whenever it shall appear by the report of inspections, which it shall be the duty of the Secretary of War to cause to be made at least once in each year by officers detailed by him for that purpose, that the organized militia of a State or Territory or of the District of Columbia is sufficiently armed, uniformed, and equipped for active duty in the field, the Secretary of War is authorized, on the requisition of the governor of such State or Territory, to pay to the quartermaster-general thereof, or to such other officer of the militia of said State as the said governor may designate and appoint for the purpose, so much of its allotment out of the said annual appropriation under section sixteen hundred and sixty-one of the Revised Statutes as amended as shall be necessary for the payment, subsistence, and transportation of such portion of said organized militia as shall engage in actual field or camp service for instruction, and the officers and enlisted men of such militia while so engaged shall be entitled to the same pay, subsistence, and transportation or travel allowances as officers and enlisted men of Corresponding grades of the Regular Army are or may hereafter be entitled by law, and the officer so designated and appointed shall be regarded as a disbursing officer of the United States, and shall render his accounts through the War Department to the proper accounting officers of the Treasury for settlement, and he shall be required to give good and sufficient bonds to the United States, in such sums as the Secretary of War may direct, faithfully to account for the safekeeping and payment of the public moneys so intrusted to him for disbursement. Sec. 15. That the Secretary of War is hereby authorized to provide for participation by any part of the organized militia of any State or Territory on the request of the governor thereof in the encampment, maneuvers, and field instruction of any part of the Regular Army at or near any military post or camp or lake or seacoast defenses of the United States. In such case the organized militia so participating shall receive the same pay, subsistence, and transportation as is provided by law for the officers and men of the Regular Army, to be paid out of the appropriation for the pay, subsistence, and transportation of the Army: Provided, That the command of such military post or camp and of the officers and troops of the United States there stationed shall remain with the regular commander of the post without regard to the rank of the commanding or other officers of the militia temporarily so encamped within its limits or in its vicinity. Sec. 16. That whenever any officer of the organized militia shall, upon recommendation of the* governor of any State, Territory, or general commanding the District of Columbia, and when authorized by the President, attend and pursue a regular course of study at any military school or college of the United States such officer shall receive from the annual appropriation for the support of the Army the same travel allowances, and quarters, or commutation of quarters, to which an officer of the Regular Army would be entitled if attending such school or college under orders from proper military authority, and shall also receive commutation of subsistence at the rate of one dollar per day while in actual attendance upon the course of instruction.

- 139 -

Sec. 17. That the annual appropriation made by section sixteen hundred and sixty-one, Revised Statutes, as amended, shall be available for the purpose of providing for issue to the organized militia any stores and supplies or publications which are supplied to the Army by any department. Any State, Territory, or the District of Columbia may, with the approval of the Secretary of War, purchase for cash from the War Department, for the use of its militia, stores, supplies, material of war, or military publications, such as are furnished to the Army, in addition to those issued under the provisions of this Act, at the price at which they are listed for issue to the Army, with the cost of transportation added, and funds received from such sales shall be credited to the appropriations to which they belong and shall not be covered into the Treasury, but shall be available until expended to replace therewith the supplies sold to the States and Territories and to the District of Columbia in the manner herein provided. Sec. 18. That each State or Territory furnished with material of war under the provisions of; this or former Acts of Congress shall, during the year next preceding each annual allotment of funds, in accordance with section sixteen hundred and sixty-one of the. Revised Statutes as amended, have required every company, troop, and battery in its organized militia not excused by the governor of such State or Territory to participate in practice marches or go into camp of instruction at least five consecutive days, and to assemble for drill and instruction at company, battalion, or regimental armories or rendez-vous or for target practice not less than twenty-four times, and shall' also have required during such year an inspection of each such company, troop, and battery to be made by an officer of such militia or an officer of the Regular Army. Sec. 19. That upon the application of the governor of any State or Territory furnished with material of war under the provisions of- this Act or former laws of Congress, the Secretary of War may detail one or more officers of the Army to attend any encampment of the organized militia, and to give such instruction and information to the officers and men assembled in such camp as may be requested by the governor. Such officer or officers shall immediately make a report of such encampment to the Secretary of War, who shall furnish a copy thereof to the governor of the State or Territory. Sec. 20. That upon application of the governor of any State or Territory furnished with material of war under the provisions of this Act or former laws of Congress, the Secretary of War may, in his discretion, detail one or more officers of the Army to report to the governor of such State or Territory for duty in connection with the organized militia. All such assignments may be revoked at the request of the governor of such State or Territory or at the pleasure of the Secretary of War. Sec. 21. That the troops of the militia encamped at any military post or camp of the United States may be furnished such amounts of ammunition for instruction in firing and target practice as may be prescribed by the Secretary of War, and such instruction in firing shall be carried on under the direction of an officer selected for that purpose by the proper military commander.

- 140 -

Sec. 22. That when any officer, noncommissioned officer, or private of the militia is disabled by reason of wounds or disabilities received or incurred in the service of the United States he shall be entitled to all the benefits of the pension laws existing at the time of his service, and in case such officer, noncommissioned officer, or private dies in the service of the United States or in returning to his place of residence after being mustered out of such service, or at any time, in consequence of wounds or disabilities received in such service, his widow and children, if any, shall be entitled to all the benefits of such pension laws. Sec. 23. That for the purpose of securing a list of persons specially qualified to hold commissions in any volunteer force which may hereafter be called for and organized under the authority of Congress, other than a force composed of organized militia, the Secretary of War is authorized from time to time to convene boards of officers at suitable and convenient army posts in different parts of the United States, who shall examine as to their qualifications for the command of troops or for the performance, of staff duties all applicants who shall have served in the Regular Army of the United States, in any of the volunteer forces of the United States, or in the organized militia of any State or Territory or District of Columbia, or who, being a citizen of the United States, shall have attended or pursued a regular course of instruction in any military school or college of the United States Army, or shall have graduated from any educational institution to which an officer of the Army or Navy has been detailed as superintendent or professor pursuant to law after having creditably pursued the course of military instruction therein provided. Such examinations shall be under rules and regulations prescribed by the Secretary of War, and shall be especially directed to ascertain the practical capacity of the applicant. The record of previous service of the applicant shall be considered as a part of the examination. Upon the conclusion of each examination the board shall certify to the War Department its judgment as to the fitness of the applicant, stating the office, if any, which it deems him qualified to fill, and, upon approval by the President, the names of the persons certified to be qualified shall be inscribed in a register to be kept in the War Department for that purpose. The persons so certified and registered snail, subject to a physical examination at the time, constitute an eligible class for commissions pursuant to such certificates in any volunteer force hereafter called for and organized under the authority of Congress, other than a force composed of organized militia, and the President may authorize persons from this class, to attend and pursue a regular course of study at any military school or college of the United States other than the Military Academy at West Point and to receive from the annual appropriation for the support of the Army the same allowances and commutations as provided in this Act for officers of the organized militia: Provided, That no person shall be entitled to receive a commission as a second lieutenant after he shall have passed the age of thirty; as first lieutenant after he shall have passed the age of thirty-five; as. captain after he shall have passed the age of forty; as major after he shall have passed the age of forty-five; as lieutenant-colonel after he shall have passed the age of fifty, or as colonel after he shall have passed the age of fifty-five: And provided further, That such appointments shall be distributed proportionately, as near as may be, among the various States contributing such volunteer force: And provided. That the appointments in this section provided for shall not be deemed to include appointments to any office in any company, troop, battery, battalion, or regiment of the organized

- 141 -

militia which volunteers as a body or the officers of which are appointed by the governor of a State or Territory. Sec. 24. That all the volunteer forces of the United States called for by authority of Congress shall, except as hereinbefore provided, be organized in the manner provided by the Act entitled "An Act to provide for temporarily increasing the military establishment of the United States in time of war, and for other purposes," approved April twentysecond, eighteen hundred and ninety-eight. Sec. 25. That sections sixteen hundred and twenty-five to sixteen hundred and sixty, both included, of title sixteen of the Revised Statutes, and section two hundred and thirty-two thereof, relating to the militia, are hereby repealed. Sec. 26. That this Act shall take effect upon the date of its approval. Approved, January 21, 1903.

- 142 -

EXHIBIT 14
97th Congress 2d Session COMMITTEE PRINT THE RIGHT TO KEEP AND BEAR ARMS -------REPORT OF THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE NINETY-SEVENTH CONGRESS SECOND SESSION FEBRUARY 1982 Printed for the use of the Committee on the Judiciary ---U.S. GOVERNMENT PRINTING OFFICE 88-618 O WASHINGTON : 1982 For sale by the Superintendent of Documents, U. S. Government Printing Office Washington, D.C. 20402(p.II) COMMITTEE ON THE JUDICIARY STROM THURMOND, South Carolina, Chairman CHARLES McC. MATHIAS, Jr., Maryland JOSEPH R. BIDEN, Jr., Delaware PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio ALAN K. SIMPSON, Wyoming DENNIS DeCONCINI, Arizona JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama ARLEN SPECTER, Pennsylvania Vinton De Vane Lide, Chief Counsel Quentin Crommelin, Jr., Staff Director -----Subcommittee on the Constitution ORRIN G. HATCH, Utah, Chairman STROM THURMOND, South Carolina DENNIS DeCONCINI, Arizona CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont Stephen J. Markman, Chief Counsel and Staff Director Randall Rader, General Counsel Peter E. Ornsby, Counsel

- 143 -

Robert Feidler, Minority Counsel(p.III) CONTENTS ---------Preface, by Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, from the State of Utah Preface, by Senator Dennis DeConcini, ranking minority member, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, from the State of Arizona History: Second amendment right to "keep and bear arms" Appendix: Case law Enforcement of Federal firearms laws from the perspective of the second amendment Other Views of the second amendment: Does the Second Amendment mean what it says?, by David J. Steinberg, executive director, National Council for a Responsible Firearms Policy National Coalition to ban handguns, statement on the Second Amendment, by Michael K. Beard, executive director, and Samuel S. Fields, legal affairs coordinator, National Coalition to Ban Handguns Historical Bases of the Right to Keep and Bear Arms, by David T. Hardy, partner in the Law Firm Sando & Hardy The Fourteenth Amendment and the Right To Keep and Bear Arms: The Intent of the Framers, by Stephen P. Halbrook, Ph.D., attorney and counselor at law The Second Amendment to the United States Constitution Guarantees an Individual Right To Keep and Bear Arms, by James J. Featherstone, Esq., General Counsel, Richard E. Gardner, Esq., and Robert Dowlut, Esq., Office of the General Counsel, National Rifle Association of America The Right To Bear Arms: The Development of the American Experience, by John Levin, assistant professor, Chicago-Kent College of Law, Illinois Institute of Technology Standing Armies and Armed Citizens: An Historical Analysis of The Second Amendment, by Roy G. Weatherup, J.D., 1972 Stanford University; member of the California Bar Gun control legislation, by the Committee on Federal Legislation, the Association of the Bar of the city of New York (p.V) PREFACE "To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them." (Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.) "The great object is that every man be armed ... Everyone who is able may have a gun." (Patrick Henry, in the Virginia Convention on the ratification of the Constitution.)

- 144 -

"The advantage of being armed ... the Americans possess over the people of all other nations ... Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." (James Madison, author of the Bill of Rights, in his Federalist Paper No. 26.) "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." (Second Amendment to the Constitution.) In my studies as an attorney and as a United States Senator, I have constantly been amazed by the indifference or even hostility shown the Second Amendment by courts, legislatures, and commentators. James Madison would be startled to hear that his recognition of a right to keep and bear arms, which passed the House by a voice vote without objection and hardly a debate, has since been construed in but a single, and most ambiguous, Supreme Court decision, whereas his proposals for freedom of religion, which he made reluctantly out of fear that they would be rejected or narrowed beyond use, and those for freedom of assembly, which passed only after a lengthy and bitter debate, are the subject of scores of detailed and favorable decisions. Thomas Jefferson, who kept a veritable armory of pistols, rifles and shotguns at Monticello, and advised his nephew to forsake other sports in favor of hunting, would be astounded to hear supposed civil libertarians claim firearm ownership should be restricted. Samuel Adams, a handgun owner who pressed for an amendment stating that the "Constitution shall never be construed ... to prevent the people of the United States who are peaceable citizens from keeping their own arms," would be shocked to hear that his native state today imposes a year's sentence, without probation or parole, for carrying a firearm without a police permit.(p.VI) This is not to imply that courts have totally ignored the impact of the Second Amendment in the Bill of Rights. No fewer than twenty-one decisions by the courts of our states have recognized an individual right to keep and bear arms, and a majority of these have not only recognized the right but invalidated laws or regulations which abridged it. Yet in all too many instances, courts or commentators have sought, for reasons only tangentially related to constitutional history, to construe this right out of existence. They argue that the Second Amendment's words "right of the people" mean "a right of the state"-apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. These commentators contend instead that the amendment's preamble regarding the necessity of a "well regulated militia ... to a free state" means that the right to keep and bear arms applies only to a National Guard. Such a reading fails to note that the Framers used the term "militia" to relate to every citizen capable of bearing arms, and that Congress has established the present National Guard under its power to raise armies, expressly stating that it was not doing so under its power to organize and arm the militia. When the first Congress convened for the purpose of drafting a Bill of Rights, it delegated the task to James Madison. Madison did not write upon a blank tablet. Instead,

- 145 -

he obtained a pamphlet listing the State proposals for a bill of rights and sought to produce a briefer version incorporating all the vital proposals of these. His purpose was to incorporate, not distinguish by technical changes, proposals such as that of the Pennsylvania minority, Sam Adams, or the New Hampshire delegates. Madison proposed among other rights that "That right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." In the House, this was initially modified so that the militia clause came before the proposal recognizing the right. The proposals for the Bill of Rights were then trimmed in the interests of brevity. The conscientious objector clause was removed following objections by Elbridge Gerry, who complained that future Congresses might abuse the exemption to excuse everyone from military service. The proposal finally passed the House in its present form: "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.:" In this form it was submitted into the Senate, which passed it the following day. The Senate in the process indicated its intent that the right be an individual one, for private purposes, by rejecting an amendment which would have limited the keeping and bearing of arms to bearing "For the common defense". The earliest American constitutional commentators concurred in giving this broad reading to the amendment. When St. George (p.VII)Tucker, later Chief Justice of the Virginia Supreme Court, in 1803 published an edition of Blackstone annotated to American law, he followed Blackstone's citation of the right of the subject "of having arms suitable to their condition and degree, and such as are allowed by law" with a citation to the Second Amendment, "And this without any qualification as to their condition or degree, as is the case in the British government." William Rawle's "View of the Constitution" published in Philadelphia in 1825 noted that under the Second Amendment: "The prohibition is general. No clause in the Constitution could by a rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." The Jefferson papers in the Library of Congress show that both Tucker and Rawle were friends of, and corresponded with, Thomas Jefferson. Their views are those of contemporaries of Jefferson, Madison and others, and are entitled to special weight. A few years later, Joseph Story in his "Commentaries on the Constitution" considered the right to keep and bear arms as "the palladium of the liberties of the republic", which deterred tyranny and enabled the citizenry at large to overthrow it should it come to pass. Subsequent legislation in the second Congress likewise supports the interpretation of the Second Amendment that creates an individual right. In the Militia Act of 1792, the second Congress defined "militia of the United States" to include almost every free adult male in the United States. These persons were obligated by law to possess a firearm and a minimum supply of ammunition and military equipment. This statute, incidentally, remained in effect into the early years of the present century as a legal requirement of gun ownership for most of the population of the United States. There can be little doubt from this that when the Congress and the people spoke of a "militia", they had reference to the traditional concept of the entire populace capable of bearing arms, and not to any formal

- 146 -

group such as what is today called the National Guard. The purpose was to create an armed citizenry, which the political theorists at the time considered essential to ward off tyranny. From this militia, appropriate measures might create a "well regulated militia" of individuals trained in their duties and responsibilities as citizens and owners of firearms. If gun laws in fact worked, the sponsors of this type of legislation should have no difficulty drawing upon long lists of examples of crime rates reduced by such legislation. That they cannot do so after a century and a half of trying--that they must sweep under the rug the southern attempts at gun control in the 1870-1910 period, the northeastern attempts in the 1920-1939 period, the attempts at both Federal and State levels in 19651976--establishes the repeated, complete and inevitable failure of gun laws to control serious crime. Immediately upon assuming chairmanship of the Subcommittee on the Constitution, I sponsored the report which follows as an effort to study, rather than ignore, the history of the controversy over the right to keep and bear arms. Utilizing the research capabilities (p.VIII)of the Subcommittee on the Constitution, the resources of the Library of Congress, and the assistance of constitutional scholars such as Mary Kaaren Jolly, Steven Halbrook, and David T. Hardy, the subcommittee has managed to uncover information on the right to keep and bear arms which documents quite clearly its status as a major individual right of American citizens. We did not guess at the purpose of the British 1689 Declaration of Rights; we located the Journals of the House of Commons and private notes of the Declaration's sponsors, now dead for two centuries. We did not make suppositions as to colonial interpretations of that Declaration's right to keep arms; we examined colonial newspapers which discussed it. We did not speculate as to the intent of the framers of the second amendment; we examined James Madison's drafts for it, his handwritten outlines of speeches upon the Bill of Rights, and discussions of the second amendment by early scholars who were personal friends of Madison, Jefferson, and Washington and wrote while these still lived. What the Subcommittee on the Constitution uncovered was clear--and long-lost--proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms. The summary of our research and findings forms the first portion of this report. In the interest of fairness and the presentation of a complete picture, we also invited groups which were likely to oppose this recognition of freedoms to submit their views. The statements of two associations who replied are reproduced here following the report of the Subcommittee. The Subcommittee also invited statements by Messrs. Halbrook and Hardy, and by the National Rifle Association, whose statements likewise follow our report. When I became chairman of the Subcommittee on the Constitution, I hoped that I would be able to assist in the protection of the constitutional rights of American citizens, rights which have too often been eroded in the belief that government could be relied upon for quick solutions to difficult problems. Both as an American citizen and as a United States Senator I repudiate this view. I likewise repudiate the approach of those who believe to solve American problems you simply become something other than American. To my mind, the uniqueness of our free institutions, the fact that an American citizen can boast freedoms unknown in any other land, is all the more reason to resist any erosion of our individual rights. When our

- 147 -

ancestors forged a land "conceived in liberty", they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against government interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men. Orrin G. Hatch, Chairman, Subcommittee on the Constitution. January 20, 1982.(p.IX) The right to bear arms is a tradition with deep roots in American society. Thomas Jefferson proposed that "no free man shall ever be debarred the use of arms," and Samuel Adams called for an amendment banning any law "to prevent the people of the United States who are peaceable citizens from keeping their own arms." The Constitution of the State of Arizona, for example, recognizes the "right of an individual citizen to bear arms in defense of himself or the State." Even though the tradition has deep roots, its application to modern America is the subject of intense controversy. Indeed, it is a controversy into which the Congress is beginning, once again, to immerse itself. I have personally been disappointed that so important an issue should have generally been so thinly researched and so minimally debated both in Congress and the courts. Our Supreme Court has but once touched on its meaning at the Federal level and that decision, now nearly a half-century old, is so ambiguous that any school of thought can find some support in it. All Supreme Court decisions on the second amendment's application to the States came in the last century, when constitutional law was far different than it is today. As ranking minority member of the Subcommittee on the Constitution, I, therefore, welcome the effort which led to this report--a report based not only upon the independent research of the subcommittee staff, but also upon full and fair presentation of the cases by all interested groups and individual scholars. I personally believe that it is necessary for the Congress to amend the Gun Control Act of 1968. I welcome the opportunity to introduce this discussion of how best these amendments might be made. The Constitution subcommittee staff has prepared this monograph bringing together proponents of both sides of the debate over the 1968 Act. I believe that the statements contained herein present the arguments fairly and thoroughly. I commend Senator Hatch, chairman of the subcommittee, for having this excellent reference work prepared. I am sure that it will be of great assistance to the Congress as it debates the second amendment and considers legislation to amend the Gun Control Act. Dennis Deconcini, Ranking Minority Member, Subcommittee On the Constitution. January 20, 1982.(p.1) History: Second Amendment Right To "Keep and Bear Arms"

- 148 -

The right to keep and bear arms as a part of English and American law antedates not only the Constitution, but also the discovery of firearms. Under the laws of Alfred the Great, whose reign began in 872 A.D., all English citizens from the nobility to the peasants were obliged to privately purchase weapons and be available for military duty.[1] This was in sharp contrast to the feudal system as it evolved in Europe, under which armament and military duties were concentrated in the nobility. The body of armed citizens were known as the "fyrd". While a great many of the Saxon rights were abridged following the Norman conquest, the right and duty of arms possession was retained. Under the Assize of Arms of 1181, "the whole community of freemen" between the ages of 15 and 40 were required by law to possess certain arms, which were arranged in proportion to their possessions.[2] They were required twice a year to demonstrate to Royal Officials that they were appropriately armed. In 1253, another Assize of Arms expanded the duty of armament to include not only freeman, but also villeins, who were the English equivalent of serfs. Now all "citizens, burgesses, free tenants, villeins and others from 15 to 60 years of age" were obliged to be armed.[3] While on the Continent the villeins were regarded as little more than animals hungering for rebellion, the English legal system not only permitted, but affirmatively required them, to be armed. The thirteenth century saw further definitions of this right as the long bow, a formidable armor-piercing weapon, became increasingly the mainstay of British national policy. In 1285, Edward I commanded that all persons comply with the earlier Assizes and added that "anyone else who can afford them shall keep bows and arrows".[4] The right of armament was subject only to narrow limitations. In 1279, it was ordered that those appearing in Parliament or other public assemblies "shall come without all force and armor, well and peaceably".[5] In 1328, the statute of Northampton ordered that no one use their arms in "affray of the peace, nor to go nor ride armed by day or by night in fairs, markets, nor in the presence of the justices or other ministers".[6] English courts construed this ban consistently with the general right of private armament as applying only to wearing of arms "accompanied with such circumstances as are apt to terrify the people".[7] In 1369, the King ordered that the sheriffs of London require all citizens "at leisure time on holidays" to "use in their recreation bowes and arrows" and to stop all other games which might distract them from this practice.[8] The Tudor kings experimented with limits upon specialized weapons--mainly crossbows and the then-new firearms. These measures were not intended to disarm the citizenry, but on the contrary, to prevent their being diverted from longbow practice by (p.2)sport with other weapons which were considered less effective. Even these narrow measures were shortlived. In 1503, Henry VII limited shooting (but not possession) of crossbows to those with land worth 200 marks annual rental, but provided an exception for those who "shote owt of a howse for the lawefull defens of the same".[9] In 1511, Henry VIII increased the property requirement to 300 marks. He also expanded the requirement of longbow ownership, requiring all citizens to "use and exercyse shootyng in longbowes, and also have a bowe and arrowes contynually" in the house.[10] Fathers were required by law to purchase bows and arrows for their sons between the age of 7 and 14 and to train them in longbow use. In 1514 the ban on crossbows was extended to include firearms.[11] But in 1533, Henry reduced the property qualification to 100 pounds per year; in 1541 he limited it to

- 149 -

possession of small firearms ("of the length of one hole yard" for some firearms and "thre quarters of a yarde" for others)[12] and eventually he repealed the entire statute by proclamation.[13] The later Tudor monarchs continued the system and Elizabeth added to it by creating what came to be known as "train bands", selected portions of the citizenry chosen for special training. These trained bands were distinguished from the "militia", which term was first used during the Spanish Armada crisis to designate the entire of the armed citizenry.[14] The militia continued to be a pivotal force in the English political system. The British historian Charles Oman considers the existence of the armed citizenry to be a major reason for the moderation of monarchical rule in Great Britain; "More than once he [Henry VIII] had to restrain himself, when he discovered that the general feeling of his subjects was against him.... His 'gentlemen pensioners' and his yeomen of the guard were but a handful, and bills or bows were in every farm and cottage".[15] When civil war broke out in 1642, the critical issue was whether the King or Parliament had the right to control the militia.[16] The aftermath of the civil war saw England in temporary control of a military government, which repeatedly dissolved Parliament and authorized its officers to "search for, and seize all arms" owned by Catholics, opponents of the government, "or any other person whom the commissioners had judged dangerous to the peace of this Commonwealth".[17] The military government ended with the restoration of Charles II. Charles in turn opened his reign with a variety of repressive legislation, expanding the definition of treason, establishing press censorship and ordering his supporters to form their own troops, "the officers to be numerous, disaffected persons watched and not allowed to assemble, and their arms seized".[18] In 1662, a Militia Act was enacted empowering officials "to search for and seize all arms in the custody or possession of any person or persons whom the said lieutenants or any two or more of their deputies shall judge dangerous to the peace of the kingdom".[19] Gunsmiths were ordered to deliver to the government lists of all purchasers.[20] These confiscations were continued under James II, who directed them particularly against the Irish population: "Although the (p.3)country was infested by predatory bands, a Protestant gentleman could scarcely obtain permission to keep a brace of pistols."[21] In 1668, the government of James was overturned in a peaceful uprising which came to be known as "The Glorious Revolution". Parliament resolved that James had abdicated and promulgated a Declaration of Rights, later enacted as the Bill of Rights. Before coronation, his successor William of Orange, was required to swear to respect these rights. The debates in the House of Commons over this Declaration of Rights focused largely upon the disarmament under the 1662 Militia Act. One member complained that "an act of Parliament was made to disarm all Englishmen, who the lieutenant should suspect, by day or night, by force or otherwise--this was done in Ireland for the sake of putting arms into Irish hands." The speech of another is summarized as "militia bill-power to disarm all England--now done in Ireland." A third complained "Arbitrary power exercised by the ministry.... Militia--imprisoning without reason; disarming--himself disarmed." Yet another summarized his complaints "Militia Act--an abominable thing to disarm the nation...."[22] The Bill of Rights, as drafted in the House of Commons, simply provided that "the acts concerning the militia are grievous to the subject" and that "it is necessary for the public

- 150 -

Safety that the Subjects, which are Protestants, should provide and keep arms for the common defense; And that the Arms which have been seized, and taken from them, be restored."[23] The House of Lords changed this to make it a more positive declaration of an individual right under English law: "That the subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law."[24] The only limitation was on ownership by Catholics, who at that time composed only a few percent of the British population and were subject to a wide variety of punitive legislation. The Parliament subsequently made clear what it meant by "suitable to their conditions and as allowed by law". The poorer citizens had been restricted from owning firearms, as well as traps and other commodities useful for hunting, by the 1671 Game Act. Following the Bill of Rights, Parliament reenacted that statute, leaving its operative parts unchanged with one exception--which removed the word "guns" from the list of items forbidden to the poorer citizens.[25] The right to keep and bear arms would henceforth belong to all English subjects, rich and poor alike. In the colonies, availability of hunting and need for defense led to armament statues comparable to those of the early Saxon times. In 1623, Virginia forbade its colonists to travel unless they were "well armed"; in 1631 it required colonists to engage in target practice on Sunday and to "bring their peeces to church."[26] In 1658 it required every householder to have a functioning firearm within his house and in 1673 its laws provided that a citizen who claimed he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so.[27] In Massachusetts, the first session of the legislature ordered that not only freemen, but also indentured servants own firearms and in 1644 it imposed a stern 6 shilling fine upon any citizen who was not armed.[28](p.4) When the British government began to increase its military presence in the colonies in the mid-eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves in defense. One colonial newspaper argued that it was impossible to complain that this act was illegal since they were "British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights" while another argued that this "is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense".[29] The newspaper cited Blackstone's commentaries on the laws of England, which had listed the "having and using arms for self preservation and defense" among the "absolute rights of individuals." The colonists felt they had an absolute right at common law to own firearms. Together with freedom of the press, the right to keep and bear arms became one of the individual rights most prized by the colonists. When British troops seized a militia arsenal in September, 1774, and incorrect rumors that colonists had been killed spread through Massachusetts, 60,000 citizens took up arms.[30] A few months later, when Patrick Henry delivered his famed "Give me liberty or give me death" speech, he spoke in support of a proposition "that a well regulated militia, composed of gentlemen and freemen, is the natural strength and only security of a free government...." Throughout the following revolution, formal and informal units of armed citizens obstructed British communication, cut off foraging parties, and harassed the thinly stretched regular forces. When seven states adopted state "bills of rights" following the Declaration of Independence, each of those bills of rights provided either for protection of the concept of a militia or for an express right to keep and bear arms.[31]

- 151 -

Following the revolution but previous to the adoption of the Constitution, debates over militia proposals occupied a large part of the political scene. A variety of plans were put forth by figures ranging from George Washington to Baron von Steuben.[32] All of the proposals called for a general duty of all citizens to be armed, although some proposals (most notably von Steuben's) also emphasized a "select militia" which would be paid for its services and given special training. In this respect, this "select militia" was the successor of the "trained bands" and the predecessor of what is today the "national guard". In the debates over the Constitution, von Steubon's proposals were criticized as undemocratic. In Connecticut one writer complained of a proposal that "this looks too much like Baron von Steubon's militia, by which a standing army was meant and intended."[33] In Pennsylvania, a delegate argued "Congress may give us a select militia which will, in fact, be a standing army--or Congress, afraid of a general militia, may say there will be no militia at all. When a select militia is formed, the people in general may be disarmed."[34] Richard Henry Lee, in his widely read pamphlet "Letters from the Federal Farmer to the Republican" worried that the people might be disarmed "by modelling the militia. Should one fifth or one eighth part of the people capable of bearing arms be made into a select militia, as has been proposed, and those the young and ardent parts of the community, possessed of little or no property, the former will answer all the purposes of an army, while the latter will be defenseless." He (p.5)proposed that "the Constitution ought to secure a genuine, and guard against a select militia," adding that "to preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them."[35] The suspicion of select militia units expressed in these passages is a clear indication that the framers of the Constitution did not seek to guarantee a State right to maintain formed groups similar to the National Guard, but rather to protect the right of individual citizens to keep and bear arms. Lee, in particular, sat in the Senate which approved the Bill of Rights. He would hardly have meant the second amendment to apply only to the select militias he so feared and disliked. Other figures of the period were of like mind. In the Virginia convention, George Mason, drafter of the Virginia Bill of Rights, accused the British of having plotted "to disarm the people--that was the best and most effective way to enslave them", while Patrick Henry observed that "The great object is that every man be armed" and "everyone who is able may have a gun".[36] Nor were the antifederalist, to whom we owe credit for a Bill of Rights, alone on this account. Federalist arguments also provide a source of support for an individual rights view. Their arguments in favor of the proposed Constitution also relied heavily upon universal armament. The proposed Constitution had been heavily criticized for its failure to ban or even limit standing armies. Unable to deny this omission, the Constitution's supporters frequently argued to the people that the universal armament of Americans made such limitations unnecessary. A pamphlet written by Noah Webster, aimed at swaying Pennsylvania toward ratification, observed Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.[37]

- 152 -

In the Massachusetts convention, Sedgwick echoed the same thought, rhetorically asking if an oppressive army could be formed or "if raised, whether they could subdue a Nation of freemen, who know how to prize liberty, and who have arms in their hands?"[38] In Federalist Paper 46, Madison, later author of the Second Amendment, mentioned "The advantage of being armed, which the Americans possess over the people of all other countries" and that "notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." A third and even more compelling case for an individual rights perspective on the Second Amendment comes from the State demands for a bill of rights. Numerous state ratifications called for adoption of a Bill of Rights as a part of the Constitution. The first such call came from a group of Pennsylvania delegates. Their proposals, which were not adopted but had a critical effect on future debates, proposed among other rights that "the people have (p.6)a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or a real danger of public injury from individuals."[39] In Massachusetts, Sam Adams unsuccessfully pushed for a ratification conditioned on adoption of a Bill of Rights, beginning with a guarantee "That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms...."[40] When New Hampshire gave the Constitution the ninth vote needed for its passing into effect, it called for adoption of a Bill of Rights which included the provision that "Congress shall never disarm any citizen unless such as are or have been in actual rebellion".[41] Virginia and North Carolina thereafter called for a provision "that the people have the right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free state."[42] When the first Congress convened for the purpose of drafting a Bill of Rights, it delegated the task to James Madison. Madison did not write upon a blank tablet. Instead, he obtained a pamphlet listing the State proposals for a Bill of Rights and sought to produce a briefer version incorporating all the vital proposals of these. His purpose was to incorporate, not distinguish by technical changes, proposals such as that of the Pennsylvania minority, Sam Adams, and the New Hampshire delegates. Madison proposed among other rights that: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."[43] In the House, this was initially modified so that the militia clause came before the proposal recognizing the right. The proposals for the Bill of Rights were then trimmed in the interests of brevity. The conscientious objector clause was removed following objections by Elbridge Gerry, who complained that future Congresses might abuse the exemption for the scrupulous to excuse everyone from militia service. The proposal finally passed the House in its present form: "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." In this form it was submitted into the Senate, which passed it the following day. The Senate in the process indicated its intent that the right be an

- 153 -

individual one, for private purposes, by rejecting an amendment which would have limited the keeping and bearing of arms to bearing "for the common defense". The earliest American constitutional commentators concurred in giving this broad reading to the amendment. When St. George Tucker, later Chief Justice of the Virginia Supreme Court, in 1803 published an edition of Blackstone annotated to American law, he followed Blackstone's citation of the right of the subject "of having (p.7)arms suitable to their condition and degree, and such as are allowed by law" with a citation to the Second Amendment, "And this without any qualification as to their condition or degree, as is the case in the British government".[44] William Rawle's "View of the Constitution" published in Philadelphia in 1825 noted that under the Second Amendment The prohibition is general. No clause in the Constitution could by a rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."[45] The Jefferson papers in the Library of Congress show that both Tucker and Rawle were friends of, and corresponded with Thomas Jefferson. This suggests that their assessment, as contemporaries of the Constitution's drafters, should be afforded special consideration. Later commentators agreed with Tucker and Rawle. For instance, Joseph Story in his "Commentaries on the Constitution" considered the right to keep and bear arms as "the palladium of the liberties of the republic", which deterred tyranny and enabled the citizenry at large to overthrow it should it come to pass.[46] Subsequent legislation in the Second Congress likewise supports the interpretation of the second amendment that creates an individual right. In the Militia Act of 1792, the second Congress defined "militia of the United States" to include almost every free adult male in the United States. These persons were obliged by law to possess a firearm and a minimum supply of ammunition and military equipment.[47] This statute, incidentally remained in effect into the early years of the present century as a legal requirement of gun ownership for most of the population of the United States. There can be little doubt from this that when the Congress and the people spoke of a "militia", they had reference to the traditional concept of the entire populace capable of bearing arms, and not to any formal group such as what is today called the National Guard. The purpose was to create an armed citizenry, such as the political theorists at the time considered essential to ward off tyranny. From this militia, appropriate measures might create a "well regulated militia" of individuals trained in their duties and responsibilities as citizens and owners of firearms. The Second Amendment as such was rarely litigated prior to the passage of the Fourteenth Amendment. Prior to that time, most courts accepted that the commands of the federal Bill of Rights did not apply to the states. Since there was no federal firearms legislation at this time, there was no legislation which was directly subject to the Second Amendment, if the accepted interpretations were followed. However, a broad variety of state legislation was struck down under state guarantees of the right to keep and bear arms and even in a few cases, under the Second Amendment, when it came before courts which considered the federal protections applicable to the states. Kentucky in 1813 enacted the first carrying concealed weapon statute in the United States; in 1822 the Kentucky (p.8)Court of Appeals struck down the law as a violation of the state constitutional protection of the right to keep and bear arms: "And can there be entertained

- 154 -

a reasonable doubt but the provisions of that act import a restraint on the right of the citizen to bear arms? The court apprehends it not. The right existed at the adoption of the Constitution; it then had no limit short of the moral power of the citizens to exercise it, and in fact consisted of nothing else but the liberty of the citizen to bear arms."[48] On the other hand, a similar measure was sustained in Indiana, not upon the grounds that a right to keep and bear arms did not apply, but rather upon the notion that a statute banning only concealed carrying still permitted the carrying of arms and merely regulated one possible way of carrying them.[49] A few years later, the Supreme Court of Alabama upheld a similar statute but added "We do not desire to be understood as maintaining, that in regulating the manner of wearing arms, the legislature has no other limit than its own discretion. A statute which, under the pretense of regulation, amounts to a destruction of that right, or which requires arms to be so borne as to render them wholly useless for the purpose of defense, would be clearly unconstitutional."[50] When the Arkansas Supreme Court in 1842 upheld a carrying concealed weapons statute, the chief justice explained that the statute would not "detract anything from the power of the people to defend their free state and the established institutions of the country. It prohibits only the wearing of certain arms concealed. This is simply a regulation as to the manner of bearing such arms as are specified", while the dissenting justice proclaimed "I deny that any just or free government upon earth has the power to disarm its citizens.[51] Sometimes courts went farther. When in 1837, Georgia totally banned the sale of pistols (excepting the larger pistols "known and used as horsemen's pistols") and other weapons, the Georgia Supreme Court in Nunn v. State held the statute unconstitutional under the Second Amendment to the federal Constitution. The court held that the Bill of Rights protected natural rights which were fully as capable of infringement by states as by the federal government and that the Second Amendment provided "the right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state."[52] Prior to the Civil War, the Supreme Court of the United States likewise indicated that the privileges of citizenship included the individual right to own and carry firearms. In the notorious Dred Scott case, the court held that black Americans were not citizens and could not be made such by any state. This decision, which by striking down the Missouri Compromise did so much to bring on the Civil War, listed what the Supreme Court considered the rights of American citizens by way of illustrating what rights would have to be given to black Americans if the Court were to recognize them as full fledged citizens:(p.9) It would give to persons of the negro race, who are recognized as citizens in any one state of the Union, the right to enter every other state, whenever they pleased.... and it would give them full liberty of speech in public and in private upon all subjects upon which its own citizens might meet; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.[53] Following the Civil War, the legislative efforts which gave us three amendments to the Constitution and our earliest civil rights acts likewise recognized the right to keep and bear arms as an existing constitutional right of the individual citizen and as a right specifically singled out as one protected by the civil rights acts and by the Fourteenth

- 155 -

Amendment to the Constitution, against infringement by state authorities. Much of the reconstruction effort in the South had been hinged upon the creation of "black militias" composed of the armed and newly freed blacks, officered largely by black veterans of the Union Army. In the months after the Civil War, the existing southern governments struck at these units with the enactment of "black codes" which either outlawed gun ownership by blacks entirely, or imposed permit systems for them, and permitted the confiscation of firearms owned by blacks. When the Civil Rights Act of 1866 was debated members both of the Senate and the House referred to the disarmament of blacks as a major consideration.[54] Senator Trumbull cited provisions outlawing ownership of arms by blacks as among those which the Civil Rights Act would prevent;[55] Senator Sulsbury complained on the other hand that if the act were to be passed it would prevent his own state from enforcing a law banning gun ownership by individual free blacks.[56] Similar arguments were advanced during the debates over the "anti-KKK act"; its sponsor at one point explained that a section making it a federal crime to deprive a person of "arms or weapons he may have in his house or possession for the defense of his person, family or property" was "intended to enforce the well-known constitutional provisions guaranteeing the right in the citizen to 'keep and bear arms'."[57] Likewise, the debates over the Fourteenth Amendment Congress frequently referred to the Second Amendment as one of the rights which it intended to guarantee against state action.[58] Following adoption of the Fourteenth Amendment, however, the Supreme Court held that that Amendment's prohibition against states depriving any persons of their federal "privileges and immunities" was to be given a narrow construction. In particular, the "privileges and immunities" under the Constitution would refer only to those rights which were not felt to exist as a process of natural right, but which were created solely by the Constitution. These might refer to rights such as voting in federal elections and of interstate travel, which would clearly not exist except by virtue of the existence of a federal government and which could not be said to be "natural rights".[59] This paradoxically meant that the rights which most persons would accept as the most important--those flowing from concepts of natural justice--were devalued at the expense of more technical rights. Thus when individuals were charged with having deprived black citizens of their right to freedom (p.10)of assembly and to keep and bear arms, by violently breaking up a peaceable assembly of black citizens, the Supreme Court in United States v. Cruikshank[60] held that no indictment could be properly brought since the right "of bearing arms for a lawful purpose" is "not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." Nor, in the view of the Court, was the right to peacefully assemble a right protected by the Fourteenth Amendment: "The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is and has always been one of the attributes of citizenship under a free government.... It was not, therefore, a right granted to the people by the Constitution." Thus the very importance of the rights protected by the First and Second Amendment was used as the basis for the argument that they did not apply to the states under the Fourteenth Amendment. In later opinions, chiefly Presser v. Illinois[61] and Miller v. Texas,[62] the Supreme Court adhered to the view. Cruikshank has clearly been superseded by twentieth century opinions which hold that portions of the Bill of Rights-and in particular the right to assembly with which Cruikshank dealt in addition to the

- 156 -

Second Amendment--are binding upon the state governments. Given the legislative history of the Civil Rights Acts and the Fourteenth Amendment, and the more expanded views of incorporation which have become accepted in our own century, it is clear that the right to keep and bear arms was meant to be and should be protected under the civil rights statutes and the Fourteenth Amendment against infringement by officials acting under color of state law. Within our own century, the only occasion upon which the Second Amendment has reached the Supreme Court came in United States v. Miller.[63] There, a prosecution for carrying a sawed off shotgun was dismissed before trial on Second Amendment grounds. In doing so, the court took no evidence as to the nature of the firearm or indeed any other factual matter. The Supreme Court reversed on procedural grounds, holding that the trial court could not take judicial notice of the relationship between a firearm and the Second Amendment, but must receive some manner of evidence. It did not formulate a test nor state precisely what relationship might be required. The court's statement that the amendment was adopted "to assure the continuation and render possible the effectiveness of such [militia] forces" and "must be interpreted and applied with that end in view", when combined with the court's statement that all constitutional sources "show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense.... these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time,"[64] suggests that at the very least private ownership by a person capable of self defense and using an ordinary privately owned firearm must be protected by the Second Amendment. What the Court did not do in Miller is even more striking: It did not suggest that the lower court take evidence on whether Miller belonged to the National Guard or a similar group. The hearing was to be on the nature of the (p.11)firearm, not on the nature of its use; nor is there a single suggestion that National Guard status is relevant to the case. The Second Amendment right to keep and bear arms therefore, is a right of the individual citizen to privately posses and carry in a peaceful manner firearms and similar arms. Such an "individual rights" interpretation is in full accord with the history of the right to keep and bear arms, as previously discussed. It is moreover in accord with contemporaneous statements and formulations of the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accurately reflects the majority of the proposals which led up to the Bill of Rights itself. A number of state constitutions, adopted prior to or contemporaneously with the federal Constitution and Bill of Rights, similarly provided for a right of the people to keep and bear arms. If in fact this language creates a right protecting the states only, there might be a reason for it to be inserted in the federal Constitution but no reason for it to be inserted in state constitutions. State bills of rights necessarily protect only against action by the state, and by definition a state cannot infringe its own rights; to attempt to protect a right belonging to the state by inserting it in a limitation of the state's own powers would create an absurdity. The fact that the contemporaries of the framers did insert these words into several state constitutions would indicate clearly that they viewed the right as belonging to the individual citizen, thereby making it a right which could be infringed either by state or federal government and which must be protected against infringement by both. Finally, the individual rights interpretation gives full meaning to the words chosen by the first Congress to reflect the right to keep and bear arms. The framers of the Bill of Rights

- 157 -

consistently used the words "right of the people" to reflect individual rights--as when these words were used to recognize the "right of the people" to peaceably assemble, and the "right of the people" against unreasonable searches and seizures. They distinguished between the rights of the people and of the state in the Tenth Amendment. As discussed earlier, the "militia" itself referred to a concept of a universally armed people, not to any specifically organized unit. When the framers referred to the equivalent of our National Guard, they uniformly used the term "select militia" and distinguished this from "militia". Indeed, the debates over the Constitution constantly referred to organized militia units as a threat to freedom comparable to that of a standing army, and stressed that such organized units did not constitute, and indeed were philosophically opposed to, the concept of a militia. That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for organizing, arming and disciplining the Militia".[65] This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec 311(a).(p.12) The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner. References [1] Charles Hollister, Anglo-Saxon Military Institutions 11-42 (Oxford University Press 1962); Francis Grose, Military Antiquities Respecting a History of the British Army, Vol. I at 1-2 (London, 1812). [2] Grose, supra, at 9-11; Bruce Lyon, A Constitutional and Legal History of Medieval England 273 (2d. ed. New York 1980). [3] J. J. Bagley and P. B. Rowley, A Documentary History of England 1066-1540, Vol. 1 at 155-56 (New York 1965). [4] Statute of Winchester (13 Edw. I c. 6). See also Bagley and Rowley, supra at 158. [5] 7 Ed. I c. 2 (1279). [6] Statute of Northampton (2 Edw. III c. 3). [7] Rex v. Knight, 90 Eng. Rep. 330; 87 Eng. Rep. 75 (King's Bench, 1686). [8] E. G. Heath, The Grey Goose Wing 109 (London, 1971). [9] 19 Hen. VII c. 4 (1503). [10] 3 Hen. VIII c. 13 (1511). [11] 64 Hen. VIII c. 13 (1514). [12] 33 Hen. VIII c. 6 (1514). [13] Noel Perrin, Giving Up the Gun 59-60 (Boston, 1979). [14] Jim Hill, The Minuteman in War and Peace 26-27 (Harrisburg, 1968).

- 158 -

[15] Charles Oman, A History of the Art of War in the Sixteenth Century 288 (New York, 1937). [16] William Blackstone, Commentaries, Vol. 2 at 412 (St. George Tucker, ed., Philadelphia 1803). [17] "An Act for Settling the Militia," Ordinances and Acts of the Interregnum, Vol. 2 1320 (London, HMSO 1911). [18] 8 Calendar of State Papers (Domestic), Charles II, No. 188, p. 150. [19] 14 Car. II c. 3 (1662). [20] Joyce Malcolm, Disarmed: The Loss of the Right to Bear Arms in Restoration England, at 11 (Mary Ingraham Bunting Institute, Radcliffe College 1980). [21] Thomas Macaulay, The History of England from the Accession of Charles II, Vol. II at 137 (London, 1856). [22] Phillip, Earl of Hardwicke, Miscellaneous State Papers from 1501-1726, vol. 2 at 407-17 (London, 1778). [23] J. R. Western, Monarchy and Revolution: The English State in the 1680's, at 339 (Totowa, N.J., 1972). [24] Journal of the House of Commons from December 26, 1688, to October 26, 1693, at 29. (London, 1742). The Bill of Rights was ultimately enacted in this form. 1 Gul. and Mar., Sess. 2, c. 2 (1689). [25] Joyce Malcolm, supra, at 16. [26] William Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia from the First Session of the Legislature in 1619, at pp. 127, 173-74 (New York, 1823). [27] Id. [28] William Brigham, The Compact with the Charter and Laws of the Colony of New Plymouth, 31, 76 (Boston, 1836). [29] Oliver Dickerson, ed., Boston Under Military Rule, 61, 79, (Boston, 1936). [30] Steven Patterson, Political Parties in Revolutionary Massachusetts, at 103 (Univ. of Wisconsin Press, 1973). [31] See Sprecher, The Lost Amendment, 51 A.B.A.J. 554, 665 (1965). [32] The most extensive studies of these militia proposals are John McAuley Palmer, Washington, Lincoln, Wilson: Three War Statesmen (New York, 1930); Frederick Stern, Citizen Army (New York, 1957); John Mahon, The American Militia: Decade of Decision 1789-1800 (Univ of Florida, 1960). [33] Merrill Jensen, ed., The Documentary of History of the Ratification of the Constitution, vol. 3 at 378 (Madison, Wisc.). [34] Id., vol. 2 at 508.(p.13) [35] Walter Bennett, ed., Letters from the Federal Farmer to the Republican, at 21, 22, 124 (Univ. of Alabama Press, 1975). [36] Debates and other Proceedings of the Convention of Virginia, ... taken in shorthand by David Robertson of Petersburg, at 271, 275 (2d ed. Richmond, 1805). [37] Noah Webster, "An Examination into the Leading Principles of the Federal Constitution ...", in Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56 (New York, 1888). [38] Johnathan Elliott, ed., Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. 2 at 97 (2d ed., 1888).

- 159 -

[39] Merrill Jensen, supra, vol. 2 at 597-98. [40] Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850); 2 B. Schwartz, the Bill of Rights 675 (1971). [41] Documents Illustrative of the Formation of the Union of the American States, at 1026 (Washington, D.C.: GPO, 1927). [42] Id. at 1030. [43] Annals of Congress 434 (1789). [44] St. George Tucker, ed., Blackstone's Commentaries, Volume 1 at 143 n. 40, 41 (Philadelphia, 1803). [45] William Rawle, A View of the Constitution 125-6 (2d ed., Philadelphia, 1803). [46] Joseph Story, Commentaries on the Constitution, vol. 2 at 746 (1833). [47] Act of May 8, 1792; Second Cong., First Session, ch. 33. [48] Bliss v. Commonwealth, 12 Ken. (2 Litt.) 90, 92 (1822). [49] State v. Mitchell, (3 Black.) 229. [50] State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840). [51] State v. Buzzard, 4 Ark. 18, 27, 36 (1842). The Arkansas Constitutional provision at issue was narrower than the second amendment, as it protected keeping and bearing arms "for the common defense." Id. at 34. [52] Nunn v. State, 1 Ga. 243, 251 (1846). [53] Dred Scott v. Sandford, 60 U.S. 691, 705. [54] The most comprehensive work in this field of constitutional law is Steven Halbrook, the Jurisprudence of the Second and Fourteenth Amendments (Institute for Humane Studies, Menlo Park, California, 1979), reprinted in 4 George Mason L. Rev. 1 (1981). [55] Cong. Globe, 39th Congress, 1st Sess., pt. 1, p. 474 (Jan. 29, 1866). [56] Id. at 478. [57] H.R. Rep. No. 37, 41st Cong., 3d sess., p. 3 (1871). [58] See generally Halbrook, supra, at 42-62. [59] Slaughterhouse Cases, 83 U.S. 36 (L873). [60] United States v. Cruikshank, 92 U.S. 542 (1876). [61] Presser v. Illinois, 116 U.S. 252 (1886). [62] Miller v. Texas, 153 U.S. 535 (1894). [63] United States v. Miller, 307 U.S. 175 (1939). [64] Id. at 178, 179. [65] H.R. Report No. 141, 73d Cong., 1st sess. at 2-5 (1933).(p.14) Appendix case law The United States Supreme Court has only three times commented upon the meaning of the second amendment to our constitution. The first comment, in Dred Scott, indicated strongly that the right to keep and bear arms was an individual right; the Court noted that, were it to hold free blacks to be entitled to equality of citizenship, they would be entitled to keep and carry arms wherever they went. The second, in Miller, indicated that a court cannot take judicial notice that a short-barrelled shotgun is covered by the second

- 160 -

amendment--but the Court did not indicate that National Guard status is in any way required for protection by that amendment, and indeed defined "militia" to include all citizens able to bear arms. The third, a footnote in Lewis v. United States, indicated only that "these legislative restrictions on the use of firearms"--a ban on possession by felons-were permissable. But since felons may constitutionally be deprived of many of the rights of citizens, including that of voting, this dicta reveals little. These three comments constitute all significant explanations of the scope of the second amendment advanced by our Supreme Court. The case of Adam v. Williams has been cited as contrary to the principle that the second amendment is an individual right. In fact, that reading of the opinion comes only in Justice Douglas's dissent from the majority ruling of the Court. The appendix which follows represents a listing of twenty-one American decisions, spanning the period from 1822 to 1981, which have analysed right to keep and bear arms provisions in the light of statutes ranging from complete bans on handgun sales to bans on carrying of weapons to regulation of carrying by permit systems. Those decisions not only explained the nature of such a right, but also struck down legislative restrictions as violative of it, are designated by asterisks. 20th century cases 1. * State v. Blocker, 291 Or. 255, -- -- -- P.2d -- -- -- (1981). "The statute is written as a total proscription of the mere possession of certain weapons, and that mere possession, insofar as a billy is concerned, is constitutionally protected." "In these circumstances, we conclude that it is proper for us to consider defendant's 'overbreadth' attack to mean that the statute swept so broadly as to infringe rights that it could not reach, which in this setting means the right to possess arms guaranteed by sec 27." 2. * State v. Kessler, 289 Or. 359, 614 P.2d 94, at 95, at 98 (1980). "We are not unmindful that there is current controversy over the wisdom of a right to bear arms, and that the original motivations for such a provision might not seem compelling if debated as (p.15)a new issue. Our task, however, in construing a constitutional provision is to respect the principles given the status of constitutional guarantees and limitations by the drafters; it is not to abandon these principles when this fits the needs of the moment." "Therefore, the term 'arms' as used by the drafters of the constitutions probably was intended to include those weapons used by settlers for both personal and military defense. The term 'arms' was not limited to firearms, but included several handcarried weapons commonly used for defense. The term 'arms' would not have included cannon or other heavy ordnance not kept by militia-men or private citizens." 3. Motley v. Kellogg, 409 N.E.2d 1207, at 1210 (Ind. App. 1980) (motion to transfer denied 1-27-1981). "[N]ot making applications available at the chief's office effectively denied members of the community the opportunity to obtain a gun permit and bear arms for their selfdefense." 4. Schubert v. DeBard, 398 N.E.2d 1339, at 1341 (Ind. App. 1980) (motion to transfer denied 8-28-1980). "We think it clear that our constitution provides our citizenry the right to bear arms for their self-defense." 5. Taylor v. McNeal, 523 S.W.2d 148, at 150 (Mo. App. 1975).

- 161 -

"The pistols in question are not contraband. * * * Under Art. I, sec 23, Mo. Const. 1945, V.A.M.S., every citizen has the right to keep and bear arms in defense of his home, person and property, with the limitation that this section shall not justify the wearing of concealed arms." 6. * City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744, at 745 (en banc 1972). "As an example, we note that this ordinance would prohibit gunsmiths, pawnbrokers and sporting goods stores from carrying on a substantial part of their business. Also, the ordinance appears to prohibit individuals from transporting guns to and from such places of business. Furthermore, it makes it unlawful for a person to possess a firearm in a vehicle or in a place of business for the purpose of self-defense. Several of these activities are constitutionally protected. Colo. Const. art. II, sec 13." 7. * City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737, at 738 (N.M. App. 1971). "It is our opinion that an ordinance may not deny the people the constitutionally guaranteed right to bear arms, and to that extent the ordinance under consideration is void." 8. State v. Nickerson, 126 Mt. 157, 247 P.2d 188, at 192 (1952). "The law of this jurisdiction accords to the defendant the right to keep and bear arms and to use same in defense of his own home, his person and property." 9. People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 (1950). "The second amendment to the constitution of the United States provides the right of the people to keep and bear arms shall not be infringed. This of course does not prevent the enactment of a law against carrying concealed weapons, but it does indicate it should be kept in mind, in the construction of a statute of such character, that it is aimed at persons of criminal instincts, and for the prevention of crime, and not against use in the protection of person or property."(p.16) 10. * People v. Nakamura, 99 Colo. 262, at 264, 62 P.2d 246 (en banc 1936). "It is equally clear that the act wholly disarms aliens for all purposes. The state ... cannot disarm any class of persons or deprive them of the right guaranteed under section 13, article II of the Constitution, to bear arms in defense of home, person and property. The guaranty thus extended is meaningless if any person is denied the right to posses arms for such protection." 11. * Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11 S.W. 2d 678 (1928). "There is no qualifications of the prohibition against the carrying of a pistol in the city ordinance before us but it is made unlawful 'to carry on or about the person any pistol,' that is, any sort of pistol in any sort of manner. *** [W]e must accordingly hold the provision of this ordinance as to the carrying of a pistol invalid." 12. * People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922). "The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff." 13 * State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921). "We are of the opinion, however, that 'pistol' ex vi termini is properly included within the word 'arms,' and that the right to bear such arms cannot be infringed. The historical use of pistols as 'arms' of offense and defense is beyond controversy."

- 162 -

"The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions." 14. * State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903). "The people of the state have a right to bear arms for the defense of themselves and the state. *** The result is that Ordinance No. 10, so far as it relates to the carrying of a pistol, is inconsistent with and repugnant to the Constitution and the laws of the state, and it is therefore to that extent, void." 15. * In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902). "The second amendment to the federal constitution is in the following language: 'A wellregulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.' The language of section 11, article I of the constitution of Idaho, is as follows: 'The people have the right to bear arms for their security and defense, but the legislature shall regulate the exercise of this right by law.' Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages." 19th century cases 16. * Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878). "If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the (p.17)penitentiary and gallows, and not by a general deprivation of constitutional privilege." 17. * Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878). "We believe that portion of the act which provides that, in case of conviction, the defendant shall forfeit to the county the weapon or weapons so found on or about his person is not within the scope of legislative authority. * * * One of his most sacred rights is that of having arms for his own defence and that of the State. This right is one of the surest safeguards of liberty and self-preservation." 18. * Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871). "The passage from Story shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights." 19. * Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846). "'The right of the people to bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State." 20. Simpson v. State, 13 Tenn. 356, at 359-60 (1833). "But suppose it to be assumed on any ground, that our ancestors adopted and brought over with them this English statute, [the statute of Northampton,] or portion of the common law, our constitution has completely abrogated it; it says, 'that the freemen of this State have a right to keep and bear arms for their common defence.' Article II, sec. 26. * * * By this clause of the constitution, an express power is given and secured to all the free citizens of the State to keep and bear arms for their defence, without any qualification whatever as to their kind or nature; and it is conceived, that it would be

- 163 -

going much too far, to impair by construction or abridgement a constitutional privilege, which is so declared; neither, after so solumn an instrument hath said the people may carry arms, can we be permitted to impute to the acts thus licensed, such a necessarily consequent operation as terror to the people to be incurred thereby; we must attribute to the framers of it, the absence of such a view." 21. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822). "For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise." "But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution."(p.18) The following represents a list of twelve scholarly articles which have dealt with the subject of the right to keep and bear arms as reflected in the second amendment to the Constitution of the United States. The scholars who have undertaken this research range from professors of law, history and philosophy to a United States Senator. All have concluded that the second amendment is an individual right protecting American citizens in their peaceful use of firearms. Bibliography Hays, THE RIGHT TO BEAR ARMS, A STUDY IN JUDICIAL MISINTERPRETATION, 2 Wm. & Mary L. R. 381 (1960) Sprecher, THE LOST AMENDMENT, 51 Am. Bar Assn. J. 554 & 665 (2 parts) (1965) Comment, THE RIGHT TO KEEP AND BEAR ARMS; A NECESSARY CONSTITUTIONAL GUARANTEE OR AN OUTMODED PROVISION OF THE BILL OF RIGHTS? 31 Albany L. R. 74 (1967) Levine & Saxe, THE SECOND AMENDMENT: THE RIGHT TO BEAR ARMS, 7 Houston L. R. 1 (1969) McClure, FIREARMS AND FEDERALISM, 7 Idaho L. R. 197 (1970) Hardy & Stompoly, OF ARMS AND THE LAW, 51 Chi.-Kent L. R. 62 (1974) Weiss, A REPLY TO ADVOCATES OF GUN CONTROL LAW, 52 Jour. Urban Law 577 (1974) Whisker, HISTORICAL DEVELOPMENT AND SUBSEQUENT EROSION OF THE RIGHT TO KEEP AND BEAR ARMS, 78 W. Va. L. R. 171 (1976) Caplan, RESTORING THE BALANCE: THE SECOND AMENDMENT REVISITED, 5 Fordham Urban L. J. 31 (1976) Caplan, HANDGUN CONTROL: CONSTITUTIONAL OR UNCONSTITUTIONAL?, 10 N.C. Central L. J. 53 (1979) Cantrell, THE RIGHT TO BEAR ARMS, 53 Wis. Bar Bull. 21 (Oct. 1980) Halbrook, THE JURISPRUDENCE OF THE SECOND AND FOURTEENTH AMENDMENTS, 4 Geo. Mason L. Rev. 1 (1981)(p.19) Enforcement of Federal Firearms Laws From the

- 164 -

Perspective of the Second Amendment Federal involvement in firearms possession and transfer was not significant prior to 1934, when the National Firearms Act was adopted. The National Firearms Act as adopted covered only fully automatic weapons (machine guns and submachine guns) and rifles and shotguns whose barrel length or overall length fell below certain limits. Since the Act was adopted under the revenue power, sale of these firearms was not made subject to a ban or permit system. Instead, each transfer was made subject to a $200 excise tax, which must be paid prior to transfer; the identification of the parties to the transfer indirectly accomplished a registration purpose. The 1934 Act was followed by the Federal Firearms Act of 1938, which placed some limitations upon sale of ordinary firearms. Persons engaged in the business of selling those firearms in interstate commerce were required to obtain a Federal Firearms License, at an annual cost of $1, and to maintain records of the name and address of persons to whom they sold firearms. Sales to persons convicted of violent felonies were prohibited, as were interstate shipments to persons who lacked the permits required by the law of their state. Thirty years after adoption of the Federal Firearms Act, the Gun Control Act of 1968 worked a major revision of federal law. The Gun Control Act was actually a composite of two statutes. The first of these, adopted as portions of the Omnibus Crime and Safe Streets Act, imposed limitations upon imported firearms, expanded the requirement of dealer licensing to cover anyone "engaged in the business of dealing" in firearms, whether in interstate or local commerce, and expanded the recordkeeping obligations for dealers. It also imposed a variety of direct limitations upon sales of handguns. No transfers were to be permitted between residents of different states (unless the recipient was a federally licensed dealer), even where the transfer was by gift rather than sale and even where the recipient was subject to no state law which could have been evaded. The category of persons to whom dealers could not sell was expanded to cover persons convicted of any felony (other than certain business-related felonies such as antitrust violations), persons subject to a mental commitment order or finding of mental incompetence, persons who were users of marijuana and other drugs, and a number of other categories. Another title of the Act defined persons who were banned from possessing firearms. Paradoxically, these classes were not identical with the list of classes prohibited from purchasing or receiving firearms. The Omnibus Crime and Safe Streets Act was passed on June 5, 1968, and set to take effect in December of that year. Barely two weeks after its passage, Senator Robert F. Kennedy was assassinated while campaigning for the presidency. Less than a week after (p.20)his death, the second bill which would form part of the Gun Control Act of 1968 was introduced in the House. It was reported out of Judiciary ten days later, out of Rules Committee two weeks after that, and was on the floor barely a month after its introduction. the second bill worked a variety of changes upon the original Gun Control Act. Most significantly, it extended to rifles and shotguns the controls which had been imposed solely on handguns, extended the class of persons prohibited from possessing firearms to include those who were users of marijuana and certain other drugs, expanded judicial review of dealer license revocations by mandating a de novo hearing once an appeal was taken, and permitted interstate sales of rifles and shotguns only where the

- 165 -

parties resided in contiguous states, both of which had enacted legislation permitting such sales. Similar legislation was passed by the Senate and a conference of the Houses produced a bill which was essentially a modification of the House statute. This became law before the Omnibus Crime Control and Safe Streets Act, and was therefore set for the same effective date. Enforcement of the 1968 Act was delegated to the Department of the Treasury, which had been responsible for enforcing the earlier gun legislation. This responsibility was in turn given to the Alcohol and Tobacco Tax Division of the Internal Revenu Service. This division had traditionally devoted itself to the pursuit of illegal producers of alcohol; at the time of enactment of the Gun Control Act, only 8.3 percent of its arrests were for firearms violations. Following enactment of the Gun Control Act the Alcohol and Tobacco Tax Division was retitled the Alcohol, Tobacco and Firearms Division of the IRS. By July, 1972 it had nearly doubled in size and became a complete Treasury bureau under the name of Bureau of Alcohol, Tobacco and Firearms. The mid-1970's saw rapid increases in sugar prices, and these in turn drove the bulk of the "moonshiners" out of business. Over 15,000 illegal distilleries had been raided in 1956; but by 1976 this had fallen to a mere 609. The BATF thus began to devote the bulk of its efforts to the area of firearms law enforcement. Complaints regarding the techniques used by the Bureau in an effort to generate firearms cases led to hearings before the Subcommittee on Treasury, Post Office, and General Appropriations of the Senate Appropriations Committee in July 1979 and April 1980, and before the Subcommittee on the Constitution of the Senate Judiciary Committee in October 1980. At these hearings evidence was received from various citizens who had been charged by BATF, from experts who had studied the BATF, and from officials of the Bureau itself. Based upon these hearings, it is apparent that enforcement tactics made possible by current federal firearms laws are constitutionally, legally, and practically reprehensible. Although Congress adopted the Gun Control Act with the primary object of limiting access of felons and high-risk groups to firearms, the overbreadth of the law has led to neglect of precisely this area of enforcement. For example the Subcommittee on the Constitution received correspondence from two members of the Illinois Judiciary, dated in 1980, indicating that they had been totally unable to persuade BATF to accept cases against felons who were in possession of (p.21)firearms including sawed-off shotguns. The Bureau's own figures demonstrate that in recent years the percentage of its arrests devoted to felons in possession and persons knowingly selling to them have dropped from 14 percent down to 10 percent of their firearms cases. To be sure, genuine criminals are sometimes prosecuted under other sections of the law. Yet, subsequent to these hearings, BATF stated that 55 percent of its gun law prosecutions overall involve persons with no record of a felony conviction, and a third involve citizens with no prior police contact at all. The Subcommittee received evidence that BATF has primarily devoted its firearms enforcement efforts to the apprehension, upon technical malum prohibitum charges, of individuals who lack all criminal intent and knowledge. Agents anxious to generate an impressive arrest and gun confiscation quota have repeatedly enticed gun collectors into making a small number of sales--often as few as four--from their personal collections. Although each of the sales was completely legal under state and federal law, the agents

- 166 -

then charged the collector with having "engaged in the business" of dealing in guns without the required license. Since existing law permits a felony conviction upon these charges even where the individual has no criminal knowledge or intent numerous collectors have been ruined by a felony record carrying a potential sentence of five years in federal prison. Even in cases where the collectors secured acquittal, or grand juries failed to indict, or prosecutors refused to file criminal charges, agents of the Bureau have generally confiscated the entire collection of the potential defendant upon the ground that he intended to use it in that violation of the law. In several cases, the agents have refused to return the collection even after acquittal by jury. The defendant, under existing law is not entitled to an award of attorney's fees, therefore, should he secure return of his collection, an individual who has already spent thousands of dollars establishing his innocence of the criminal charges is required to spend thousands more to civilly prove his innocence of the same acts, without hope of securing any redress. This, of course, has given the enforcing agency enormous bargaining power in refusing to return confiscated firearms. Evidence received by the Subcommittee on the Constitution demonstrated that Bureau agents have tended to concentrate upon collector's items rather than "criminal street guns". One witness appearing before the Subcommittee related the confiscation of a shotgun valued at $7,000. Even the Bureau's own valuations indicate that the value of firearms confiscated by their agents is over twice the value which the Bureau has claimed is typical of "street guns" used in crime. In recent months, the average value has increased rather than decreased, indicating that the reforms announced by the Bureau have not in fact redirected their agents away from collector's items and toward guns used in crime. The Subcommittee on the Constitution has also obtained evidence of a variety of other misdirected conduct by agents and supervisors of the Bureau. In several cases, the Bureau has sought conviction for supposed technical violations based upon policies and interpretations of law which the Bureau had not published in the Federal Register, as required by 5 U.S.C. 552. For instance, beginning in 1975, Bureau officials apparently reached a judgment that (p.22)a dealer who sells to a legitimate purchaser may nonetheless be subject to prosecution or license revocation if he knows that that individual intends to transfer the firearm to a nonresident or other unqualified purchaser. This position was never published in the Federal Register and is indeed contrary to indications which Bureau officials had given Congress, that such sales were not in violation of existing law. Moreover, BATF had informed dealers that an adult purchaser could legally buy for a minor, barred by his age from purchasing a gun on his own. BATF made no effort to suggest that this was applicable only where the barrier was one of age. Rather than informing the dealers of this distinction, Bureau agents set out to produce mass arrests upon these "straw man" sale charges, sending out undercover agents to entice dealers into transfers of this type. The first major use of these charges, in South Carolina in 1975, led to 37 dealers being driven from business, many convicted on felony charges. When one of the judges informed Bureau officials that he felt dealers had not been fairly treated and given information of the policies they were expected to follow, and refused to permit further prosecutions until they were informed, Bureau officials were careful to inform only the dealers in that one state and even then complained in internal memoranda that this was interfering with the creation of the cases. When BATF was later requested to place a warning to dealers on the front of the Form 4473, which

- 167 -

each dealer executes when a sale is made, it instead chose to place the warning in fine print upon the back of the form, thus further concealing it from the dealer's sight. The Constitution Subcommittee also received evidence that the Bureau has formulated a requirement, of which dealers were not informed that requires a dealer to keep official records of sales even from his private collection. BATF has gone farther than merely failing to publish this requirement. At one point, even as it was prosecuting a dealer on this charge (admitting that he had no criminal intent), the Director of the Bureau wrote Senator S. I. Hayakawa to indicate that there was no such legal requirement and it was completely lawful for a dealer to sell from his collection without recording it. Since that date, the Director of the Bureau has stated that that is not the Bureau's position and that such sales are completely illegal; after making that statement, however, he was quoted in an interview for a magazine read primarily by licensed firearms dealers as stating that such sales were in fact legal and permitted by the Bureau. In these and similar areas, the Bureau has violated not only the dictates of common sense, but of 5 U.S.C. 552, which was intended to prevent "secret lawmaking" by administrative bodies. These practices, amply documented in hearings before this Subcommittee, leave little doubt that the Bureau has disregarded rights guaranteed by the constitution and laws of the United States. It has trampled upon the second amendment by chilling exercise of the right to keep and bear arms by law-abiding citizens. It has offended the fourth amendment by unreasonably searching and seizing private property.(p.23) It has ignored the Fifth Amendment by taking private property without just compensation and by entrapping honest citizens without regard for their right to due process of law. The rebuttal presented to the Subcommittee by the Bureau was utterly unconvincing. Richard Davis, speaking on behalf of the Treasury Department, asserted vaguely that the Bureau's priorities were aimed at prosecuting willful violators, particularly felons illegally in possession, and at confiscating only guns actually likely to be used in crime. He also asserted that the Bureau has recently made great strides toward achieving these priorities. No documentation was offered for either of these assertions. In hearings before BATF's Appropriations Subcommittee, however, expert evidence was submitted establishing that approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations. (In one case, in fact, the individual was being prosecuted for an act which the Bureau's acting director had stated was perfectly lawful.) In those hearings, moreover, BATF conceded that in fact (1) only 9.8 percent of their firearm arrests were brought on felons in illicit possession charges; (2) the average value of guns seized was $116, whereas BATF had claimed that "crime guns" were priced at less than half that figure; (3) in the months following the announcement of their new "priorities", the percentage of gun prosecutions aimed at felons had in fact fallen by a third, and the value of confiscated guns had risen. All this indicates that the Bureau's vague claims, both of focus upon gun-using criminals and of recent reforms, are empty words. In light of this evidence, reform of federal firearm laws is necessary to protect the most vital rights of American citizens. Such legislation is embodied in S. 1030. That legislation

- 168 -

would require proof of a willful violation as an element of a federal gun prosecution, forcing enforcing agencies to ignore the easier technical cases and aim solely at the intentional breaches. It would restrict confiscation of firearms to those actually used in an offense, and require their return should the owner be acquitted of the charges. By providing for award of attorney's fees in confiscation cases, or in other cases if the judge finds charges were brought without just basis or from improper motives, this proposal would be largely self-enforcing. S. 1030 would enhance vital protection of constitutional and civil liberties of those Americans who choose to exercise their Second Amendment right to keep and bear arms.

- 169 -

EXHIBIT 15
MASSACHUSETTS MILITIA ROOTS: A BIBLIOGRAPHIC STUDY Captain Robert K. Wright, Jr. 116th Military History Detachment Virginia Army National Guard 19 July 1986 Departments of the Army and the Air Force Historical Services Branch Office of Public Affairs National Guard Bureau Washington, D.C. 20310 MASSACHUSETTS MILITIA ROOTS New England's political and social evolution during the seventeenth century did not occur under tight centralized control. Vague grants and charters, lack of British supervision, caused in part by a civil war, and an essentially independent attitude on the part of the various colonizing groups all contributed to haphazard growth. Territorial boundaries of the various governmental jurisdictions underwent substantial change. The first entity to emerge was Plymouth Colony (1620) which exercised control over what is today the southeastern portion of Massachusetts. The second was the Massachusetts Bay Colony which established an outpost in Salem in 1628, and began its main settlement sequence in 1630. This colony established the largest territorial claim and backed it up with the most substantial population. Throughout the early portion of the century it- exercised control over all of Massachusetts (excluding Plymouth Colony), Maine (which became a separate governing entity only in 1820), and New Hampshire. Offshoot colonies which were derived from, but independent of, Massachusetts followed in Connecticut and Rhode Island. New Haven Colony existed briefly as a separate entity before being annexed by Connecticut in the rechartering process following the 1660 Restoration of Charles II; New Hampshire separated from Massachusetts as a colony shortly thereafter. Individual towns changed colonies into the early years of the eighteenth century as commissions finally settled precise intercolonial boundaries. Prior to the capture of New Netherlands (New York) from the Dutch, Connecticut and New Haven also exercised jurisdiction over various settlements in eastern Long Island, and a number of New Englanders moved to Dutch-sponsored settlements in western Long Island and present-day Westchester County, further complicating issues. To properly assess the evolution of the New England militias' force structure, it is necessary to keep these various changes in mind, and to track units through the records of various colonies. It is also important to carefully study the histories of individual communities to determine the evolution of the town governmental structure, since towns changed names and often were subdividied, splitting existing companies. Note well that each colony followed slightly different patterns within an overall regional context. Also bear in mind that contemporary records for the New England jurisdictions of the 17th Century follow the Julian Calendar (old style, or o.s.), not the Gregorian Calendar (new style, or

- 170 -

n.s.) in use today. The British Empire formally changed systems in September of 1752; the date 2 September was followed by 14 September. To convert o.s. dates to n.s., one adds ten (10) days when dealing with the 17th Century, eleven (11) for the 18th. Also note that New Year's Day in o.s. came on 25 March; in n.s. on 1 January. Therefore, o s. dates falling between 1 January and 25 March give two years, erg. 1628/9, which means on that date the year was considered to be still 1628, but by modern accounting it would be 1629. This usage occurred during the 17th Century as Englishmen realized that most of the rest of Europe had already shifted to the Gregorian Calendar, and a concession to practical commerce and diplomacy was necessary. All dates given below are given as they occur in the records, which is to say in old style.

Bay Colony- 17th Century GENERAL On 4 March 1628/9 the Bay Colony received its charter, which included total control over internal military and political organization. The governing body (then still located in England) issued its "First General Letter" of instructions on 17 April of that same year (ref. Records Mass. 1:37i-39, 386-398) to CPT John Endecott appointing him governor" of the "plantation" at Naumkeag (Salem) and directing him to undertake the military organization of the trading post and settlement, which had been established the previous year. Endecott had travelled to Salem in 1628. At his request weapons and uniforms for 100 men were shipped over in 1629 to outfit a company organization which corresponded to contemporary European norms and included 1 captain, 1 lieutenant, 1 ensign, 3 sergeants, 3 drummers, possibly 1 corporal, and 90 or 91 privates. Uniforms were extensive, and included most noticably 100 green coats bound with red tape, deliberately copying a pattern common in contemporary operations in Ireland where a form of camouflage was required. Weapons for the company included 8 cannon for the defensive fortification; 100 firearms (80 snaphances which were primitive flintlocks; 10 long fowling pieces; and 10 larger caliber matchlocksagain an arms mix of very modern content); 100 swords; 83 pole arms (3 halberds for the sergeants; 60 pikes; and 20 half-pikes); plus 60 corselets (upper torso body armor) (ref. Records Mass. 1:23-6, 31). No exact date for implementation of this organizational table is preserved, but the absence of detail implies strongly that it was adopted in 1629, and, since the instructions from internal evidence indicated that they were merely approving Endecott's recommendations, the date 17 April 1629 can be considered acceptable as a starting date for the Salem Company. Note here that Rutmants suggestion that the company organized in England prior to departure is incorrect; like all initial ventures of commercial nature, a commercial company organization was in place prior to shipment, but not a military company. The General Court moved with the charter to the Bay area in the summer of 1630 as large migration started. The first General Court (legislative session) in the New World took place on 25 August 1630 (ref. Records Mass. 1:73-4; Johnson, Wonder Working Providence, p. 37). On 22 March 1630/1 the General Court established the first military legislationa simple requirment for universal military service phrased as a requirement for all adult males (except ministers and magistrates) to possess arms; towns were to furnish arms (and later collect the

- 171 -

costs) to indigents (ref. Records Mass. 1:84). This law implemented a concept fundamental in England since the Assize of Arms (1185), and marked the first of a long series of laws attempting to enforce this requirement (for ex. on 12 April 1631 a basic load of ammunition was specified; see Records Mass. 1:85). Two military veterans from Europe were hired to train the colony's militia Captains Daniel Patrick and John Underhill (ref. Records Mass. 1:99, 103). Other 1630 residents of the colony with prior service in Europe included Endecott, Robert Weldon, and William Southcot. The initial 1630 migration established several different towns in the Bay proper to go along with the original Salem settlement. Militia organization followed almost as rapidly. The first explicit reference which appears in the records, and which therefore is used as a start date for the original companies is the 12 April 1631 (ref. Records Mass. 1:85) General Court directive "It is ordered, that every captains shall traine his companie on Saterday in everie weeke". On 7 November 1632 training was cut back to once a month, and on 3 September 1634 to once a month excluding the agricultural months of July and August, although captains had the right to require additional individual training up to three days a week for persons not judged proficient (ref. Records Mass. 1:102, 124). Note that initially some companies were split between several towns (ref. Records Mass. 1:127), that captains appointed their noncommissioned officers (ref. Records Ma. 1:109), and that by 1635/6 each company had its own colors which were carried by the ensign (ref. Records Mass. 1:169). Significant "firsts" include the 26 July 1631 initial commissioning of junior officers by the General Court (ref. Records Mass. 1:90); the first reference to split training (which included reference to the fact that drill started at 1300 hours) by Captain John Underhill's company which was spread between Boston, Roxbury, Charlestown, Mystick, and New Town (ref. Records Mass. 1:90); John Finch and Henry Lynn being the first men fined, on 7 November 1632, for missing drill (ref. Records Mass. 1:102); Sergeant Perkins being fined on 1 October 1633 for being drunk at drill (ref. Records Mass. 1:108); the first integration on 3 September 1634 when an Indian who was residing in Dorchester was allowed to train with the company there (ref. Records Mass. 1:127); and the first release of three individuals from the requirement to train because of their age, although they were still required to keep arms (ref. Records Mass. 1:133). On 4 March 1634/5 (ref. Records Mass. 1:137) the Court directed that militia fines be used by the individual companies to purchase arms and equipment, and on 3 September 1634 it specified (ref. Records Mass. 1:125) that no one was to fire a weapon on training day unless under the orders of an officer during marksmanship practice. Beginning on 14 May 1634 (ref. Records Mass. 1:117, 138) the General Court asserted its right to appoint all military officers down to the rank of ensign, although on 4 March 1634/5 it did delegate appointment authority to a military committee when the court was in recess. This latter provision accounts for the fact that throughout the seventeenth century a roster of officers based solely on the Records Mass. will be incomplete. The Bay Colony's first "combat" came in 1632 (ref. Johnson, Wonder- Working, 5051) when Richard Walker was ambushed near Lynn during a changing of the guard; he was not injured, but was struck twice by arrows before firing his weapon and scaring the Indians off. (Walker later became a militia lieutenant, and Johnson applies the title prematurely in his brief account.) Colony population grew rapidly during the first decade to an estimated level of about 20,000

- 172 -

persons. Towns began proliferating, a process which the General Court controlled carefully. Normally, a group of citizens would obtain a permit to settle an area, would be granted a "plantation" with certain conditions attached (such as achieving a fixed number of resident families within a specified time limit), and eventually would be granted full township status. Militia organization followed town evolution. According to the pattern revealed in the Records Mass. (for ex. 1:160) and other sources, normally the male inhabitants would first be grouped for mandatory training under an appointed non-commissioned officer, and then would begin growth towards full company status under one captain, one lieutenant, and one ensign. On the other hand, "out-migration" to Connecticut began in 1635, producing some immediate changes in company organization, with new arrivals in the colony buying out the improved homesteads of the departing individuals and communities. This had a particular impact on Dorchester and Cambridge. Subsequent to December 1636 (when regiments were createdsee next section) several pieces of legislation were passed to deal with issues of rank and status. On 9 March 1636/7 (ref. Mass. Records 1:188) the General Court ruled that although only freemen (a political term meaning full citizenship individuals) could be elected as officers, all members of the trained band (i.e. those males required to both own weapons and to attend the musters) could vote in the company elections provided that they had taken the oath of loyalty to the General Court known as the "residents' oath." Voting fraud (balloting was by either colored beans or names on slips of paper) immediately became a problem, and the first law punishing it was passed on 17 October 1643 (ref. Records Mass. 2:48). A further clarification issued on 26 May 1647 (ref. Records Mass. 2:191; 3:108) opened the voting process to include other freemen in the town who were exempted from the requirement to train with the company. Formats for commissions for the various offices from general officer to company clerk and statements of their duties were formalized during the early 1640's, and subsequently refined (ref. Records Mass. 1: 355-6; 2: 6365, 76-78, 117-20; 3:2-3, 14, 32-36). On 2 June 1641 (ref. Mass. Records 1:329, 355-6; 2:42-43, 49-50, 267; 3:156, 236; 4 part 1:56) overall command was vested in "Sergeant Major General" John Humphrey (an English term; the rank was in the process during the century of being shortened to Major General, and Massachusetts references use the two interchangeably). On 14 May 1642 a select committee was established (ref. Records Mass. 2:3) by the General Court to "putt the countrey in a poture of warre." This started a procedure of having experts develop new laws to upgrade the defensive potential of the colony to deal primarily with threats posed by conditions in England, and only secondarily with threats from the Indians. Initially, laws on 8 and 27 September 1642 (ref. Records Mass. 2:2026, 2~29, 31) tightened up various topics. A census of all male inhabitants aged 16 to 60 was ordered on 10 May 1643 and another in 1646 (ref. Records Mass. 2:37, 151; 3:74) to provide better data for decision makers. Political organization of the colony changed on that same day with the subdivision of the colony into four counties or shires (ref. Rewords Mass. 2:38). It contributed to a new approach to the militia discussed below. The colony's first comprehensive militia law was passed on 7 September 1643 (ref. Mass. Records 2.42-43). It consisted of ten sections which confirmed or reworked the earlier piecemeal legislation, and was intended to parallel many of the features of English shire system of militia organization. One Sergeant Major General for the colony was permitted, along with one Shire

- 173 -

Lieutenant per shire, and one Sergeant Major (again an English term which was in the process of being shortened to Major; Massachusetts used both interchangeably) per shire. The Shire Lieutenant was an administrative official (also known in English usage as the Lord Lieutenant; in other colonies in America as the County Lieutenant); the Sergeant Major the operational leader of the armed force of the county. The law provided for the Sergeant Major to assume the duties of the Shire Lieutenant in his absence, and in fact Massachusetts never appointed any Shire Lieutenants. The Sergeant Major replaced both the colonel and lieutenant colonel in a regiment. Each shire or regiment (a usage which indicates that, like the English would shortly after, Massachusetts assumed that each county would have a single regiment) was to be divided into companies (by the military authorities) with several small towns being joined to form a single company if necessary. As an afterthought, an amendment (ref. Records Mass. 2:45) said that in such a case one individual in each town was to be named to supervise training for the town's soldiers. Regiments were to conduct an annual assembly as a regiment for large-unit training. The 1643 law also relaxed the requirement to own firearms for men who were training as pikemen, and a reference by the General Court on 18 June 1645 (ref. Records Mass. 3:32-36) indicated that 2/3 of the force would train with firearms, 1/3 with pikes, a ratio in keeping with contemporary European professional armies. The September law caused some confusion, for clarifications were issued on 17 October 1643 and 7 March 1643/4 (ref. Records Mass. 2: 49-50, 56, 62) dealing with electoral procedures for the new officers. Implied in the laws and the phrasing of the commissions, and explicitly stated by Johnson (ref. Wonder-Working, p. 207), was one key point about officers: other than the Major General who was elected annually at the same time as the Governor and other colony-wide civil officials, all officers held their commissions until removed for cause by the General Court, until they petitioned the General Court for a discharge and had the petition granted, or until they died. Another law passed on 12 August 1645 (ref. Records Mass. 2:122; 3:41) is the first Massachusetts "minuteman" law, for it required every company commander to have 30% of his unit ready with full packs, ammunition, etc., and capable of turning out for active duty on a halfhour's notice. Other men in the frontier towns were to be paid to serve as "scouts for ye rainging of ye woods upon ye borders of their several! towns" (ref. Records Mass. 3:40). Boys aged 10-16, with their parents' permission, could receive basic training from an officer or veteran solider on training day beginning in 1645 (ref. Records Mass. 2:99, 3:12). Additional laws were passed on the 11 November 1647 session of the General Court. One (ref. Records Mass. 2:221-224) amended and remodified provisions of the 1645 law to allow each company to set its own dates for training provided that they trained eight days a year and that they did not train during the agricultural months of July and August. it also clarified requirements for which weapons would meet legal standards, which individuals were required to own weapons but exempted from training, and company officer election procedures, but restated a requirement for a court to certify the election results. The second law (ref. Records Mass. 2:216) stated that time spent marching to and from a regimental assembly counted in the eightday training requirement. A law of 27 October 1648 reduced the regimental drill from an annual requirement to every third year in regimental rotation (ref. Records Mass. 2:256; 3:137). A law of 10 May 1648 provided for the organization of cavalry units, called troops of horse, whose members were exempted from infantry training and given certain other benefits in exchange for the expense of furnishing their own horses and more complex equipment.

- 174 -

The law was enacted for a three-year trial period, with minor modifications on 4 May 1649 and 14 October 1651the latter extending to the troops the same election rights enjoyed by the infantry companies (ref. Mass. 2: 243-4; 3:127-8, 154, 236; 4 part 1: 56). Yet another comprehensive militia law was enacted on 26 May 1652 to codify the various features which had crept in through amendments and special purpose laws (ref. Records Mass. 3:267-70; 4 part 1:86-88). This one furnished new forms of commissions for the regimental officers; specified that a company would be entitled to a full set of three officers only if it had at least 64 members, otherwise it would have proportional reductions and be commanded by an individual of lieutenant or lesser rank. Majors had the right to order several small towns combined to form a single company, but were not required to do so. When a company reached a strength of 200 or more men, it was to be split into two or more companies (ideally 100 men each). This law required for the first time that all minorities (defined in the act as Scotsmen, Negroes and Indians) living in a town either as settlers or servants of settlers participate in training as members of companies. The law allowed a company commander to authorize separate training for groups of men who lived too far from the center of town to conveniently join with the main body on training days (the ancestor of a current ARNG concept called "split training"). It also specified that a major could not march his regiment outside of his county without the express orders of the General Court or the Major General, but gave him the right to mobilize the regiment without orders if under actual attack, and stated that whenever a regiment had a vacancy in the major's position, the senior captain would assume acting command. A companion law (ref. Record Mass. 3:265, 286-7; 4 part 1:80, 108) with clarification on 19 October 1652 included the horse troops (which had to have a minimal strength of 30 men) in the same general guidelines. Procedures for determining seniority among officers, and for ruling that an individual could not hold simultaneous commissions in both the infantry and cavalry were also passed on 19 October, when directions were issued to the company in Boston to divide itself into four separate companies, a "first" (ref. Records Mass. 3:284-6; 4 part 1: 106-7). A ruling on 3 May 1654 (ref. Records Ma. 3:344; 4 part 1: 183, 186) clarified a question by stating categorically that horse troops were part of the regiment in whose geographical bounds they fell. Benefits to the cavalrymen were reduced somewhat on 14 May 1656, at the same time that Indians and Negroes were excluded from participating in the militia and the franchise in company elections was reduced to freemen and householders who took the oath of residency, although current unit members were "grandfathered" and allowed to retain their voting rights (ref. Records Mass. 3:397; 4 part 1:257-8). Lesser procedural amendments came on 30 August 1653, 11 May 1659, 21 October 1663, 29 April 1668, 19 May 1669, 15 May 1672, 2 October 1678, 28 May and 15 October 1679, 4 February 1679/8G, and 19 May 1680 (ref. Records MOOR. 3:320-1; 4 part 1:155-6, 366; 4 part 2:97, 368, 422, 510-1; 5:194, 211-3, 242-3, 261, 266, 290-1, 306). Key among these steps was the one in 1668 to reassert complete control over commissions (but not to the initial election) by the General Court. Training was cut back to six days a year on 31 May 1660 and to four (with a commander at his discretion allowed up to two additional days) on 28 May 1679 (ref. Records Mass. 4 part 1:420; 5:211-13). A war scare with the Dutch led to 23 May 1666 amendments to stiffen weapons-owning requirements, and to clarify (restated on 7 October 1674) that the Major General was responsible for supervising nonregimental companies (ref. Records Mass. 4 part 2:295; 5:16). The modernization of weaponry continued on 10 October 1666 when body armor for pikemen was ruled unnecessary, and, in a

- 175 -

key step which placed the colony well ahead of contemporary European armies, on 24 May 1677, after the bloody experience of King Philip's War, when every soldier was required to own a flintlock firearm (ref Records Mass. 4 part 2:319; 5:135). The colony's first offensive military operation came in 1635 when a force of 120 men, drawn out from the militia but not by the mobilization of intact units, under CPT John Endicott, assisted by CPTs Underhill and Turner, sailed to Block Island to punish local Indians for the murder of a trading group (unrelated to the Bay Colony). In 1637, as a result of escalating tensions, full warfare erupted between the New Englanders (Connecticut, the separate trading outpost at Saybrook, Plymouth, and the Bay Colony) and Narragansett and Mohegan allies on the one side, and the Pequot tribe on the other. The Pequots, the most powerful southern New England tribe, were centered in present-day New London County, Connecticut. All colonies used provisional forces rather than mobilizing intact militia units to carry out the two offensive operations required to destroy the Pequots as a military entity. In the initial action ("the fort fight") CPT Underhill was present as an individual volunteer and 40 Bay Colony men under CPT Patrick covered the withdrawal of the main party (Connecticut, Saybrook, and allied Indians). In the second ("the swamp fight"), the Bay furnished 120 men under CPTs Israel Stoughton, Patrick and Trask, ENS Davenport, and SGTs Palmer, Davis, and Jeffries (ref. esp. Mason; Orr; Vaughan; and Records Mass. 1: 191-197). Similar procedures were followed in much smaller expeditions to the Narragansetts in 1650 and 1654 (ref. Records Mass. 3:218-9, 359; 4 part 1:35, 207), and in large planned, but never executed, attacks on the Dutch in Manhattan in 1664 and 1673 (ref. Records Mass. 4 part 2:12~3, 167, 572-5). King Philip's War (1675-77) was a total war for survival, and involved extensive operations by both provisional and standing militia units which are documented best in Records Mass. 5 and Bodge, Soldiery. Numerous secondary sources cover the war from both a broad perspective and a town-study view. FORCE STRUCTURE The Bay Colony's original company organizations are slightly vague, since the men of the colony trained and carried out guard duty from the day the ships anchored. The following dates of organization for the original town trained bands are therefore somewhat arbitrary, and reflect the first legal reference (which in every case is worded in such a way as to make clear that a unit was in fact in being). Salem dates from 17 April 1629 under Captain John Endecott. This date is based on the letter of general instructions. By 1634 Endecott had been succeeded as company commander by Captain William Trask. (Ref. Records Mass., 1:386-98, 85, 93, 95, 120; Johnson, Wonder - Working, 1922; Shelley, Underhill, 133-4.) The companies in the Bay proper, covering the 1630 settlements, are all ruled to have an organization date of 12 April 1631, based on the law requiring training passed by the General Court. These companies were: Captain John Underhill's (Boston and Roxbury); Daniel Patrick's (Watertown, Medford and Newtown); Richard Southcot's (Dorchester); and John Endecott's (Salem). Note that Underhill and Patrick had dual status as both company commanders and as hired "technicians." By 1635 the force had grown to 800 or so men in at least five companies: Underhill's (Boston); Patrick's (Newtown); CPT John Mason's (Dorchester); CPT William

- 176 -

Trask's (Salem) and CPT Nathanial Turner's (Saugus). In December 1636, with the colony facing war with the Pequots, a regimental organization was adopted for the colony's approximately 1,500 men. Under the overall command of the Governor as "chiefe general!" three geographically-based permanent regiments were set up, each commanded by a colonel and a lieutenant colonel, and each with a paid training officer (mustermaster). All regiments and companies were directed by the General Court to hold elections of officers prior to the next Court session and to report the results. Note that these units predate by six years the regiments of England. The act to execute this organization was passed on 13 December 1636 (ref. Records Mass. 1:186-187). The organization of 13 December 1636 with the results of commissions issued on 9 March 1636/7 (ref. Records Mass. 1:186-187) was as follows: [Charts and Tables Ommited] Accounts of exactly what was accomplished by this act tend to be misleading and reflect unfamiliarity with force structuring concepts. The law, like other Bay Colony organizational laws during the century, lists the towns contributing manpower to the regiment, not the companies. The most frequently cited modern source for this information is Rutman's dissertation (pp. 675-678); the older secondary source is G.M. Bodge's Soldiers of King Philip's War (reprinted 1896 from a long series of articles in the New England Historical and Genealogical Register), pp. 471-472. Note that Rutman incorrectly switches the regimental names; Bodge, on the other hand, assigns numerical designations to the regiments without any justification. Accurate reconstruction of the nature of the internal organization of the regiments requires a full review of all six volumes of Records Mass., combined with the other primary and secondary (biographical) sources listed below. The most illuminating of these accounts is the 1654 London publication (reprinted at Andover in 1867) of Captain Edward Johnson's WonderWorking Providence, since Johnson was a company commander in the 1640's. It must be used with some caution, however, for he uses military terminology in both technical and theological contexts, and applies rank titles that men held in 1650 to earlier points in their lives. The listing of officers given above is based on all the sources. The three existing regiments changed names when the shires (counties) were created as political entities. Most secondary sources have incorrectly stated that the redesignation was effective on 10 May 1643 (o.s.) when the political law passed (ref. Mass Records 2:38); actually a separate law was passed on 7 September 1643 (o.s.) to bring the regiments into conformity (ref. Mass. Records 2:42-3). This interpretation is verified by the subsequent actions of the General Court on 17 October 1643 and 7 March 1643/4 (ref. Mass Records 2:49-50, 56) which directed the vacating of old regimental commissions to allow new elections. Therefore, on 7 September 1643 the South Regiment became the Suffolk Regiment, the East the Essex Regiment, and the North the Middlesex Regiment. Secondary sources have had the most organizational trouble with the remaining geographical areas of the colony, misidentifying regimental organization and missing key facts and dates. The fourth shire, Norfolk County, created on 10 May 1643 was specifically exempted from regimental organization by the 7 September 1643 act. Inhabitants of the towns forming Norfolk

- 177 -

continued in a separate, non-regimental status under the general supervision of the commander of the Essex Regiment (geographically the closest senior officer) for nearly three decades (ref. Mass. Records 2:226; 4pt2:295; Johnson, Wonder-Working, 190-195). On 31 May 1670 (ref. Mass. Records 4pt2:452) the General Court ruled that the population of Norfolk and the adjacent Piscataqua region had achieved sufficient density to justify establishment of a regimental organization and therefore created the Norfolk Regiment, appointing CPT Robert Pike as its Sergeant Major. The Norfolk Regiment was disbanded on 4 February 1679/80 when Norfolk County was "extinguished" (ref. Mass. Records 5:263-4) and its territory (except for a few towns transferred into Essex County) recognized as a separate colony (New Hampshire). The fifth shire, York County, was created on 18 May 1653 for the tract beyond (i.e. north and east of) the Piscataqua River (ref. Mass. Records 4pt1:124-6). The towns comprising this shire were similarly left in unregimented status under the supervision of a designated individual (ref. Mass. Records 3:409; 4pt1:273; 4pt2:75-76,295,370-3,452). As in the case of Norfolk, population density had to reach a critical mass before higher echelon military organization was permitted. On 31 May 1671 the York Regiment came into being (ref. Mass. Records 4pt2:486 -note that this is one year to the day after Norfolk gained regimental status). York during this period included the area that today is the state of Maine. On 7 May 1662 a sixth shire, Hampshire County, was created (ref. Mass. Records 4pt2:52) extending intermediate governmental organization to towns in the western part of the colony previously directly subordinate to the General Court. Once again the companies from these towns were explicitly left outside of any regimental organization until population density grew (ref. Mass. Records 4pt2:295). On 31 May 1671 the Hampshire Regiment was established by law under John Pynchon as Sergeant Major (ref. Mass Records 4pt2: 486,488). This date is the correct organization date of the 104th Infantry. The seventh early shire was created as Devonshire County on 7 October 1674 (ref. Mass Records 5:16-20, 236) at the request of the inhabitants of the "eastern parts" of present-day Maine living in the vicinity of Kennebec, Pemaquid, Saggedehock, Damerill Cove, and the vicinity. It never received regimental status during the period under consideration. Troops of Horse were authorized as distinct companies within regiments by legislation passed on 10 May 1648 (ref. Mass. Records 2:243-4; 3:127-8, 344; 4pt1:183, 186; also see discussion in first section.) The first subdivision of companies within a single town took place on 19 October 1652, when the Boston company was split into four companies in implementation of a 26 May 1652 change in the law (ref. Mass. Records 3:285; 4pt1:106). The colony's confidence in and understanding of its military capability was contained in a report furnished to authorities in London on 16 May 1665 (ref. Mass. Records 4pt2:203): "Our militia is ordered into three regiments of foote, besides some supernumary companies, under three majors & one major generall, together with our troopes, consisting of about fower thousand ffoote & ffower hundred horse, tho possibly more may be in the lists, our orders requiring all men to be armed & listed."

- 178 -

Marginal notes in the record book kept by the General Court indicate that the horse were organized in four troops at this time. A major reorganization of the colony's armed forces took place on 13 October 1680 (o.s.), incorporating lessons-learned during King Philip's War and reacting to the population changes caused by that conflict. The act of the General Court (ref. Mass. Records, 5:294-296) has caused secondary source authors considerable trouble, largely because it left two regiments (Hampshire and York) untouched, and made no reference to the recently disbanded Norfolk Regiment. The colony's total force under the reorganization consisted of Devonshire's separate companies and eight regiments: Hampshire (104th Inf); York; and two each formed by the division of Suffolk (MAJ Thomas Clark), Essex (MG Dennison), and Middlesex (MAJ Daniel Gookin). The new organization (based on towns) was as follows: Boston Regiment (MAJ Thomas Clark) (101st FA) Boston (8 companies) and a Troop of Horse (CPT Thomas Brattle; from Suffolk Regiment) Suffolk Regiment (MAJ William Stoughton) Dorchester; Roxbury; Weymouth; Hingham; Dedham; Braintree; Medfield; Hull; Milton; Other small villages in the rest of the county (NOTE: especially in all probability Wrentham); and a Troop of Horse at Hingham (lately raised) 1st (Lower, eastern) Middlesex Regiment (MAJ Daniel Gookin) (182d Inf) Watertown; Charlestown (2 companies); Cambridge; Cambridge Village and Woburn (probably typo; are same place); Reading; Malden; and a Troop of Horse (CPT Thomas Prentice) (NOTE: Medford, org. as town 1630 is missing) 2d (Upper, western) Middlesex Regiment (MAJ Peter Bulkley) (181st Inf) Concord; Sudbury; Lancaster; Groton; Billerica; Chelmsford; Marlborough; Dunstable; and a Troop of Horse (CPT Thomas Hinchman) (NOTE: Missing Natick organized 1650; Mendon 1667; Brookfield 1673; Sherborn 1674; and Framingham 1675) 1st (south) Essex Regiment (MG Dennison) (101st Egr Bn) Salem; Lynn; Marblehead; Ipswich (3 companies); Gloucester; Wenham; Salem Village (i.e. a second company in Salem); Beverly; and any troop of horse from this geographical area 2d (or north) Essex Regiment (MAJ Nathanael Saltonstall) (101st Egr Bn) Newbury (2 companies); Rowley; Salisbury; Haverhill; Andover; Topsfield; Amesbury; Bradford; and anv troop of horse from this geographical area (NOTE: Missing Manchester organized 1645) In 1689 (per mss. copy in 101st Engineer jacket) Essex was regoranized into three regiments: 1st (Salem, Lynn, Marblehead, Beverly, Manchester); 2d (Ipswich, Gloucester, Rowley, Wenham, Topsfield, Boxford); and 3d (Newbury, Salisbury, Haverhill, Andover, Amesbury, Bradford). This study does not include information on the Plymouth Colony, whose records were separately edited by Shurtleff; research in those materials is required to adequately deal with claims by the

- 179 -

211th Field Artillery to early history. Data on individual companies is arranged in the following section. However, note that in addition to the militia organization, there were several other formations of a military nature. One was the permanent fortification system based upon the "Castle" in Boston Harbor. A paid staff (both full and part-time) was authorized for it beginning on 1 March 1630/1, with the officer in charge being eventually referred to as the "Captain of the Castle." (Refs. Records Mass. 1:83, 105, 123-5, 165, 332; 2:107-8; 3:1; 4 part 2:276-8 and numerous other citations throughout). The second consisted of a prototype volunteer militia organization which was established on the model of the London Artillery Company, and which was originally called the "Military Company of the Massachusetts" although it is more commonly known as the "Ancient and Honorable Artillery Company." The "artillery" is a seventeenth century military technical term and refers to training rather than to cannon. The company was formed to provide for training for the elite within the colony who would go on to (or who actually did) command within the militia system. It was chartered on 13 March 1638/9 (ref. Records Mass. 1:250-1). Basic Sources Consulted: Bodge, Soldiers in King Philip's War; Cook, Counties, Cities and Towns in Massachusetts; Johnson, Wonder-Working Providence; Mason, Brief History of the Pequot War; Millar, "Independency and Militia" (Ph.D. Dissertation); Orr, editor, History of the Pequot War; Rutman, "Militant New World" (Ph.D. Dissertation); Shelley, John Underhill; Shurtleff, Records Colony Massachusetts Bay (5 vols. in 6); Vaughan, Puritans and Indians; Regimental histories at US Army Center of Military History (DAMH-HSO) submitted in interwar years NB: Complete research would have required examination of all published town and county histories ROBERT K. WRIGHT, JR. CPT, AGC, VaARNG 19 July 1986

- 180 -

EXHIBIT 16
George Washington Law Review Note, 57 (1988): 328. Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue. THE MILITIA CLAUSES, THE NATIONAL GUARD, AND FEDERALISM: A CONSTITUTIONAL TUG OF WAR* In June of 1987, Minnesota Governor Rudy Perpich filed suit in federal district court challenging the federal government's power to send members of the Minnesota National Guard to Honduras.[1] The district court rejected Perpich's claims.[2] In February of 1988, Massachusetts Governor Michael Dukakis filed a similar action that also failed.[3] The Court of Appeals for the First Circuit affirmed the Massachusetts district court in a one sentence opinion.[4] A panel on the Eighth Circuit reversed the ruling of the Minnesota district court,[5] but that decision was recently vacated and rehearing en banc was granted.[6] This Note discusses the constitutional foundations of the modern National Guard system, the current statutory scheme that governs the Guard, and some of the problems presented by that scheme. This Note examines Supreme Court decisions regarding the scope of constitutional protections afforded state power in the federal system and suggests a judicial solution to the friction between the states and the federal government over the governance of the modern militia. Part I outlines the history and current status of this federal-state militia. Specifically, this Part Summarizes the militia's constitutional and statutory history, about which a dearth of legal scholarship exists.[7] It illustrates that there has been a steady erosion of the state role over the last two hundred years, resulting in a current imbalance in the distribution of power. Part II concludes [Page 329] that the current imbalance might not be in the national security interest, and that, contrary to the opinions of at least three federal courts, it might be unconstitutional. Part III examines the Constitution and pertinent Supreme Court decisions in which the Court has attempted to define the delicate balance between federal and state power. The discussion centers mainly on questions of federal jurisdiction and interpretation of the constitutional language giving Congress the power to regulate interstate commerce. It discusses the Perpich and Dukakis decisions and examines the difficulties posed by states' assertions of sovereignty in light of increasing federal power. Finally, this Note concludes that state challenges to federal power over the National Guard are well- principled and could provide the Supreme Court with an opportunity to make a refreshingly clear statement on the meaning and constitutional dimensions of state sovereignty in our federal system. I. The Militia Every state in the union has a militia.[8] Laypersons know the militia as the 'National Guard,' an inaccurate and oversimplified rubric for an institution that has several different personalities depending on the laws under which it is operating.[9]

- 181 -

Theoretically, a state's militia is an independent military force. It is a part of the executive department of the state and may be used for police augmentation, civil disturbance control, natural disaster relief, or any other lawful purpose pertaining to security of the state and its citizens.[10] The governor is the commander-in-chief of the militia and is generally responsible for its operations.[11] The United States also has a militia.[12] With the exception of exclusively federal reserve units,[13] the federal militia is composed of the militia of the states when properly called into active federal ser-[Page 330]vice in times of war or national emergency.[14] To understand how this system has evolved requires an understanding of its constitutional, legislative, and military history. The militia[15] is an institution older than our Constitution.[16] Prior to 1787, it was a product of English common law and colonial and military custom.[17] Since 1787, and increasingly in modern times, the militia has been a product of federal and state statutes enacted pursuant to a division of powers and responsibilities embodied in Article I of the Constitution.[18] Although the modern militia system is a product of the Constitution and statutes, the federal courts have rarely addressed the broad range of constitutional issues which it presents.[19] A. The History of the Militia Clauses The constitutional basis for the modern militia system is found in Article I, section 8, which states: The Congress shall have Power . . .; [(clause 15)] To provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel Invasions; [(clause 16)] To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; ... To make all Laws which shall be necessary and proper for carrying [Page 331] into Execution the foregoing Powers.[20] Serious negotiations over the Militia Clauses began at the Constitutional Convention on August 8, 1787, two months after Alexander Hamilton unsuccessfully urged complete federal control over the militia.[21] Opponents searched for a compromise, reasoning that ' [i]f [the states would] not give up the power over the whole, they probably [would] over a part as a select militia.'[22]

- 182 -

The first compromise reserved from federal regulation the appointment of officers. The Convention members agreed that officering would be the exclusive province of the states.[23] This compromise was motivated by the states' fear of federal power in the union. In assuring that the officering provision would preserve state power, Hamilton wrote: What reasonable cause of apprehension can be inferred from a power of the Union to prescribe regulations for the militia and to command its services when necessary, while the particular states are to have the sole and exclusive appointment of officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the states ought at once extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.[24] It appears, however, that reserving to the states the appointment of officers was not alone considered a sufficient safeguard against federal domination. When the subject of militia training came before the Convention, the draft language reserved authority over training to the states.[25] This language ultimately prevailed, but not without some opposition. Opponents moved to strike the provision, arguing that because training authority was not specifically vested in the federal government by means of the 'organize, arm, and discipline' language, the provision was unnecessary.[26] The motions to strike the language failed as the majority decided to be unequivocal: the federal government would not have all power over militia mat-[Page 332]ters.[27] The Article I language remains unchanged and is the constitutional basis for both federal and state power over the militia.[28] B. Federal Regulation of the Militia The Organized Militia System of the United States is governed, in part, by federal statute.[29] Since the beginning of the Union the system has steadily evolved from one of almost no federal regulation to a modern system of virtually complete federal regulation and control.[30] Prior to the Revolutionary War, each colony had an organized militia whose main purpose was to maintain the public peace and protect colonists from Indian raids and other external security threats.[31] The Revolutionary War saw the defection en masse of these militia, popularly known as minutemen, to the Continental Army.[32] With independence won, however, the Continental Army was disbanded; the only military forces maintained thereafter were the independent militia of the several states and a few federal guards maintained for essentially housekeeping details at Fort Duquesne and West Point.[33] The Act of September 29, 1789 (Act of 1789),[34] enacted by the First Congress, recognized the need for 'the establishment for the troops in the service of the United States.'[35] This legislation was the statutory birth of the Regular Army, a completely federal, standing army primarily designed to respond to serious military weaknesses of the Confederation.[36] By implication from the language of Article I, however, the states remained free to maintain their own militia.[37] [Page 333]

- 183 -

Not until the Federal Militia Act of 1792[38] did Congress attempt to codify a national policy regarding the militia. In effect, this Act did little more than establish a continuing military census to provide a role of ready reserves that could be called into federal service should the need arise.[39] This Act, for the first time, created a uniform age of military obligation[40] and presumed that each state would establish company-sized districts.[41] District Captains were to be responsible for enrolling all obligated males and were to provide for the annual muster.[42] This system resulted primarily in implementing a massive military manpower bookkeeping system rather than establishing a true, in-place and nationwide reserve force.[43] As to the relationship between the militia and the Regular Army, the Act of 1789 authorized the President to draft the militia into federal service.[44] In practice this provision proved unnecessary because great numbers of state units volunteered to enlist in the federal service when needed.[45] Militiamen simply came forward and were placed in the federal ranks.[46] The bureaucratic strictures of the modern recruiting and personnel management systems were nonexistent. Units ranging from single companies to entire regiments were employed in the federal service for combat in various conflicts, from the War of 1812 through the SpanishAmerican War in 1898. This system remained relatively undisturbed until 1903.[47] In 1903, Congress enacted the Dick Act,[48] which for the first time codified certain aspects of the system that had developed in rather haphazard fashion under state law.[49] Viewed by many as the birth certificate to the modern system, the Dick Act represented the first real exercise of Congress's long-dormant power to organize the militia.[50] Moreover, this Act signified the beginning of the demise of the old, essentially state- controlled, system.[51] The Dick Act labeled the state militia 'National Guards,' the first [Page 334] statutory usage of that term.[52] This Act also authorized federal funds for equipment and training[53] and provided the states with training by federal regulars.[54] Further, it required the states to drill their units a specified number of days per year, to open their account and property books to federal auditors, to subject training and encampments to federal inspection, and to obtain prior approval for the expenditure of federal grants-in-aid.[55] The Dick Act was followed by the Militia Act of 1908,[56] which provided that the National Guard be available for federal use in the United States as well as outside its borders.[57] In 1912, however, the Judge Advocate General of the U.S. Army held that, given the limiting language of Article I, section 8, clause 15,[58] there was no constitutional authority for overseas use of the militia.[59] In the same year, the United States Attorney General concurred in this opinion.[60] The significance of these events was undercut, however, by Congress's next major attempt to take control over the militia. In 1916, Congress enacted the National Defense Act (NDA),[61] a legislative response to the gathering storm of the First World War. Through the NDA, Congress created a vehicle to circumvent the Attorney General's opinion that deemed overseas use of the National Guard unconstitutional.[62] This Act gave the President the authority to draft any member of the militia into the federal service.[63] Accordingly, entire units were 'drafted.'[64] The NDA further overhauled the system by authorizing additional appropriations for state militia units.[65] Its enactment, however, was attended by much acrimony from both the states and the

- 184 -

Regular Army. While the states would be burdened anew with increased federal requirements and control, the Regular Army would be saddled with administering the system.[66] The result was a dramatic [Page 335] increase in federal control over the militia. The most dramatic aspect of this increased control was the President's new power to draft state Guard members as federal reserve troops, thereby relieving Congress of the constraints imposed by clause 15.[67] In addition, the NDA authorized the President, through the Secretary of War, to promulgate rules (1) describing the number and kind of units each state would be required to maintain,[68] and (2) establishing standards for enlistment.[69] The NDA replaced the state codes with the National Military Code,[70] and, perhaps most importantly, the NDA required units receiving federal monies to acquire federal approval before any officer could be commissioned.[71] This last provision effectively wrested from the states control over officer-appointment standards,[72] and has yet to be challenged on constitutional grounds, perhaps because of its conditional spending character.[73] The NDA further cemented federal control over state [Page 336] militia by providing that the states could not maintain any troops other than those directed by the President.[74] In 1918, the provision allowing the federal government to draft National Guardsmen was challenged on constitutional grounds and was upheld in the Selective Draft Law Cases.[75] In these cases, consolidated for appeal, several members of state National Guards challenged the draft law asserting that insofar as the NDA permitted them to be drafted for service overseas, it violated clause 15, which confers on Congress the right to call 'forth the Militia to execute the Laws of the Union, supress insurrections and repeal Invasions.'[76] The Court began its opinion by noting that '[t]he highest duty of the citizen is to bear arms at the call of the nation.'[77] The Court then proceeded to discuss the history of Congress's use of the draft to carry out its national defense responsibilities under the Army Clause.[78] Reasoning that the Militia Clauses were not to be read as a limitation on Congress's power when that power needs to be most expansive, the Court held that the power of Congress 'was expressly granted by the Constitution . . . in the power to declare war, which means a power to carry on the war successfully, i.e., with the means necessary.'[79] Interpreting clauses 15 and 16 in this way, the Court approved of wartime drafting of citizens who were also members of the militia, even though such a scheme came dangerously close to allowing Congress to use the militia abroad in the face of clause 15. Thus, in order to allow Congress to defend the nation in war, the Court gave birth to the legal fiction of Guards qua Reserves. In later years this scheme would be incorporated into federal statutory provisions.[80] [Page 337] The dual status of the National Guard was imminent.[81] More of the same heightened standards, combined with increased federal appropriations, characterized the Army Reorganization Act of 1920.[82] Under this Act the Militia Bureau (the Bureau), the federal agency primarily responsible for executing militia policy, gained significantly more control over the state guards.[83] The Bureau was empowered to control the geographic location of units, to require annual physical examinations of all personnel, and to dictate virtually every important operational detail involved in running the unitsfrom the specifications of horsehoe sizes to the tactical and strategic doctrines of units.[84] Further, it

- 185 -

broadened the President's power, permitting him to activate guardsmen in an 'emergency' declared by Congress.[85] The Act of June 15, 1933[86] created the National Guard of the United States composed of the portions of the state Guards in the service of the United States. This enactment was the inception of the federal militia as a statutory entity. As a practical matter, during peacetime the National Guard was a fiction.[87] During war, this organization came to life and became part of the modern army of the United States.[88] This Act required all guardsmen to take a dual oath to both the federal and relevant state governments,[89] and made, in essence, every state guardsman a federal reservist as well. C. The Modern Militia The Armed Forces Reserve Act of 1952[90] codified the modern system. This Act provided that guardsmen could be called out by the President for fifteen days out of each year for any reason, subject to the consent of the Governor.[91] This provision was the first incursion of the federal government into peacetime mustering of the [Page 338] state militia. Presumably, the gubernatorial veto provision ensured consistency with the state powers described in the Militia Clauses. Logically, there were only two circumstances under which the President was authorized to call forth the militia. The militia could be used either (1) for 'core militia' functions, that is, in a manner contemplated by the language or structure of clause 15, such as repelling invasions or during times of war or national emergency, or (2) when a Governor expressly consents, thereby protecting the institutional interests of the state. A literal approach to the language of clauses 15 and 16 would have prevented the national government from employing the militia in those core functionswar and national emergencyfor which it was intended by the Farmers. On the other hand, completely overlooking the dual power structure that the language subsumes would have vitiated state power over the militia. This state of the law could have remained the solution palatable to all parties, but it was not to last. After the end of American involvement in Vietnam, President Nixon decided to end the selective draft.[92] Through a series of resolutions and appropriations, Congress began a program of downsizing the standing military force.[93] An increased emphasis was placed on the reserve components to provide for first line reserve capabilities.[94] This approach was the genesis of the all-volunteer army and the 'Total Force' concept.[95] The Total Force is composed of the Regular Army,[96] the United States Army Reserve,[97] and the National Guard of the United States.[98] This last entity is the umbrella organization of all state militia or National Guards when on active federal service. The all-volunteer Army of the early 1970s greatly reduced the manpower of the Regular Army portion of the Total Force.[99] The dynamics of the United States' security interests and military requirements, however, simultaneously expanded and changed over the last two decades. Increases in terrorism, the escalation of civil and guerrilla wars in nations important to U.S. security interests, and the increasing political popularity of nuclear arms control and [Page 339]

- 186 -

reduction have placed expanding and varying demands on our readily deployable, conventional military forces.[100] These demands, in light of the increasing political and budgetary constraints of the 1980s, have often been met by an increased emphasis on the less costly reserve components of the Total Force.[101] In particular, the resources of the state National Guardswhich possess the lion's share of the reserve component combat arms[102]have been tapped. The state Guards have steadily become a major building block of Pentagon strategies, not only for protracted conventional and nuclear conflict but also for nonconventional, low- intensity conflicts as might occur in Central America or the Middle East.[103] Today, eighteen of the twenty-four Army divisions available in the event of war are provided in whole or in part by the state Guards.[104] Similarly, seventy-three percent of the nation's air defense interceptor forces, thirty-four percent of its tactical airlift capability, and twenty-five percent of its tactical fighters are Air National Guard assets.[105] Today's National Guards are no longer a reserve of units, personnel, and equipment that, after a period of appropriate training, could provide stand-by augmentation to active duty forces. They have become first line defensive and offensive components of the Total Force.[106] This fundamental change in our national defense strategy has not been solely quantitative. As part of its program, Congress increased readiness standards, expanded the qualitative requirements for troops and units that each state is required to maintain, and augmented the missions that these units would be required to perform.[107] Unable to fund these requirements, and in some cases unwilling to administer these programs themselves, many of the states have ceded virtually all of their authority to federal control, a wholesale retreat from the statecontrolled character of the militia that had once prevailed.[108] [Page 340] II. Federal-State TensionsCentral America and the Montgomery Amendment The natural result of this state of affairs is that, as the nation's military needs have become less conventional, the military's role in non-war foreign policy execution has enlarged. Relatedly, as the state militia have become an increasingly larger component of the defense structure, they have become involved in federal policy execution on both a national and international scope.[109] The most recent federal legislation, embodied in the Montgomery Amendment of 1986,[110] removes the requirement of gubernatorial consent for federal training of the National Guard and exemplifies the friction that has been inescapably produced by this state of affairs. With one set of policy goals and a particular philosophy on the use of military power, the federal political branches have control over state military institutions whose governments might disagree with either the federal policy goals or the philosophy. The debate surrounding this legislation and the litigation challenging it highlight some of the difficulties inherent to this scheme. A. Montgomery Amendment and State Interests In the early 1980s, the Reagan Administration federalized many Guard units for training.[111] This event seems unremarkable on its face. This 'federalization' is, with the consent of the Governor, the normal procedure for most Guard units' two week annual training. Some of these training missions were conducted, however, in friendly nations that bordered either unfriendly

- 187 -

nations or nations involved in civil or guerilla warswars in which the Administration had an interest in seeing a particular side prevail.[112] More than a few observers criticized these missions as imprudent use of military force. Most notable among the objectionable missions were those scheduled to take place in Honduras.[113] Honduras is a primary staging area for the so-called 'Contras,' a military force actively seeking the political and military demise of the Nicaraguan Sandinista government. Disagreeing with the Administration's policy, several state governors refused to permit their troops to be sent on this mission.[114] Other governors, while not refusing to send [Page 341] their troops, expressed their reservations about the policy.[115] In direct response to this situation, Congress enacted the Montgomery Amendment,[116] which effectively removed the provision in the federal law that required gubernatorial approval for federalization for any purpose other than war or national emergency.[117] The law did not literally remove the provision, but stated that a governor could not withhold consent based upon 'any objection to the location, purpose, type, or schedule of such training.'[118] To the casual observer, and to many not so casual federal policymakers, this system seems to be an appropriate response to the military and political realities of twentieth-century America. The nation needs a strong defense, but few would argue that maintaining a large standing army of full scale war capability is politically or economically desirable. Each state has a reserve military force of its own growing out of the historical need for police augmentation in internal security and natural disaster situations. Because these assets are already in place and because the states' day-to-day needs for these assets are arguably less immediate and compelling when compared to the 'pioneer' days of Indian wars and factional rebellions, why not integrate these resources into the national defense? Short of abolishing the Guards by constitutional amendment and creating one national federal reserve, which seems politically unrealistic, federalizing these state institutions seems the efficient and logical compromise. It strikes the golden mean between two extremesof a nation relying on the neutrality and stability of its neighbors for security, and a nation whose growth and prosperity is handicapped by the crushing weight of an enormous military machine. As with any compromise, however, some interests are ill-served. This result is inevitable because compromise is inherent to decisionmaking. Policymakers must weigh the possible harms of a compromise against the benefits. Yet, the Constitution requires that some [Page 342] harms be given greater weight than others. Although the harms incurred by injuries to individual liberties protected by the Bill of Rights are those most frequently requiring special consideration, the Constitution also requires that harms to the institutions of government be given special weight.[119] These harms necessarily include those to the interests of the three coordinate branches of the federal government. But they also include harms to the institutional interests of the states as principal providers of those protections, services, and policies for which all governments are constituted.[120] A significant number of state interests are impinged by the current National Guard system. One category of harm to state interests is derived from the broad postulate of state sovereignty, and includes the notion that states should not be coercively involved, and should not be allowed to involve themselves, in U.S. foreign policy. This category of harm is judicially recognized and

- 188 -

has been the subject of the Dukakis and Perpich litigation.[121] A second category of harm, perhaps more subtle, stems from the contravention of basic efficiency, delegation, and decentralization values of managerial and military science.[122] The first category, in a very real way, might militate for judicial correction. The second category of harm, although perhaps more appropriately considered through legislative or executive process, nonetheless provides additional material to be considered by the judiciary. Judges might determine that those structural-managerial interests are what really underlie a constitutional provision. Given such a finding, few judges would ignore a holding that serves those interests. In any event, federal legislators should reconsider these harms in their oversight of the federal management of the Guards. Such consideration might lead to legislative reforms that would make the Guards more effective and efficient while also avoiding the constitutional problems presented by the current scheme. The trend toward plenary federal control arguably offends Article I, section 8, clause 15, specifically with respect to training and officering. The Supreme Court has held that with respect to personnel status, political control, and for the purposes of jurisdiction, the [Page 343] National Guard is the modern militia reserved to the states.[123] Although in certain circumstances the Court has held that the Guards are federal in nature, these decisions have generally supported a dual power structure and have limited the federal character to some very narrow circumstances.[124] The current system is characterized by federal control over almost all facets of the Guards. There is almost no area of operation in which the Guards are not constrained by federal control.[125] The Officering Clause has been completely vitiated by the 'federal recognition' system: no unit receiving federal funds or support may place an officer in its table of organization unless that officer has been federally recognized.[126] Federal recognition, which means the officer must meet standards identical to federal active duty officers, must also be 'renewed' upon promotion in rank or position.[127] This scheme supplants the state's role in choosing and installing state officers, for no state's Guard can accomplish federally mandated missions without making use of federal funding and support. State control in administering matters such as training, personnel, logistics, doctrine, and military justice has been eliminated by a system of federal conditional spending.[128] This purse string has been used to put the states in a 'catch-22' situationretain autonomy and lose funding or accept funding and submit to federal control. In addition, legislation prohibiting the states from keeping 'troops' except as directed by the President has been read to apply to the militia.[129] Although the term 'Troops' in the Constitution was probably intended to apply to standing armies,[130] this seemingly unfounded application of the prohibition to the militia means that even if the states could afford to maintain their militia in accordance with federal standards without federal assistance, they would be forbidden to do so. Moreover, today the state National Guards are organized into federal divisional structures requiring the maintenance [Page 344] of state units that have no purpose other than to support a national defense strategy.[131] For example, what possible use could a state have for a Military Intelligence Battalion whose primary mission is to collect and analyze tactical and strategic battle information?

- 189 -

This state of the law ignores important interests of the states. Specifically, it prevents states from independently, and some would say effectively, administering a state institution to meet state requirements. In addition, the states are now forced to participate in and contribute to a foreign policy with which they may vehemently disagree, and the development of which the Constitution denies them any meaningful political mechanism to change. In a more general sense, however, the current law prevents the states from legitimately acting as states. It intrudes upon that zone of governmental activity presumably reserved to the states in our federal system. Such harm to the states becomes crucial when analyzing the constitutionality of the current statutory scheme. B. The Continuing Vitality of Policy Choices of the Farmers The overarching problem is how far the National Guard system has strayed from what the Framers originally intended for the militia. This observation is not to say that all law should be bound by the Framers' intentions.[132] The concern here is one of policy. The wisdom of the policy underlying the state-federal military institution originally envisioned by the Framers is as apparent today as it was two hundred years ago. The Framers intended that the militia would be governed by a dual system of federal-state control during peacetime with the bulk of the power in the hands of the state. The Federalist papers and the records of the Federal Convention indicate that most Framers were wary of the dangers a large standing army would pose to the rights of individuals and the rights of the states as sovereigns.[133] They might also have been concerned about the foreign relations problems that could attend a militarily adventurous executive. In response to those concerns, the Framers allowed the states to retain almost complete control over the militia during peacetime. This control included areas of military operations such as mustering, officering, training, and maintaining logistical support for training operations.[134] Indeed, it is plausible that the Framers never intended that the state militia provide the front line defense of the [Page 345] Republic, and they most certainly did not consider that the militia would ever be sent abroad.[135] Under the system contemplated by the Framers, Congress would regulate the militia during peacetime only to the extent necessary to provide a smooth transition into federal service if needed as a reserve in time of war. This regulation would include devising plans for mobilization; coordination for rapid arming and equipping for combat operations; a unified system of standards for equipment, munitions, and discipline; and a tactical doctrine that the states could use in their own planning and training.[136] No evidence suggests that the Framers envisioned federal control or administration over the day-to-day running of the militia. Additionally, the Framers possibly intended that the militia not be subject to extensive federal regulation prior to a declared war or other national emergency, reasoning that the resulting delay in the federal military build-up would serve as a deterrent to overly swift entrance into wars of aggression or imperialism.[137] The essentially defensive orientation of the militia would still provide adequate defense at the nation's borders. The Framers realized that under some limited circumstances it would be necessary to have state military forces under federal command. Thus, once the militia or a portion thereof was properly

- 190 -

called into active federal service, Congress would have plenary authority over the militia.[138] By Article I mandate, the militia is properly called into active federal service only to 'execute the Laws of the Union, suppress insurrections, and repel Invasions.' Read in the broadest sense, this language covers only those emergency situations posing imminent danger to life or property, whether from [Page 346] some foreign power or from some internal force uncontrolled or uncontrollable by the states. These core militia functions remain the only legitimate use of state military power by the federal government. The system envisioned by the Framers reflects a balancing of equally important interests. On the one hand, the Framers wished to ensure the national security through a strong military system. Undeniably, there exists a perpetual need for a strong national defense system for which the militia system should serve as a dependable backup, and some measure of federal control is necessary to ensure uniformity and readiness. On the other hand, there is a need and a justification from an efficiency standpoint to retain military forces at the state level. The Framers believed in the efficacy of military units tied to the local community.[139] Military forces controlled by local communities promote esprit de corps and political stability in support for the military and allow for the benefits of the English Regimental system in which grandfathers, fathers, and sons served in the same units.[140] In addition, a canon of military leadership, which has recently become fashionable in business schools, is the 'power-down' theory that mandates that as much responsibility and command discretion as possible should be delegated to the lower levels in order to facilitate initiative and self-sufficiency.[141] Finally, there are many occasions when the states need a local force, controlled by the state with well-exercised state chains-ofcommand, to aid police in carrying out the police power functiona function deemed primarily within the province of the states.[142] From both a constitutional and a policy perspective, a problem exists. To what degree the current legal doctrines governing federal-state relations can provide a solution is the question that must be answered. III. Current Federalism Doctrines and the Modern Militia A recurring theme in constitutional decisionmaking is the balancing of interests between the states as institutions and the federal government as the supreme power in the Union. Thus far the states have generally found little protection in the courts. Such protection should be expanded because the increasing domination of the [Page 347] federal government offends the federal structure embodied in the Constitution and in many cases results in unresponsive and inefficient government action. A. Problems in Constitutional Line-Drawing: Federal Jurisdiction and the Commerce Clause Questions regarding the proper division of power between the federal and state courts provide perhaps the greatest challenge for the lawyer, judge, and legal scholar. Theories of jurisdiction are, indeed, the wellspring from which flow many of the Supreme Court's seminal cases on power in the constitutional system.[143] The genesis of many of the concepts underlying state sovereignty are also bound up in the jurisdictional cases.

- 191 -

Marbury v. Madison[144] provided the Supreme Court's initial view of the federal judicial power in relation to the acts of coordinate braches, namely, the power to review congressional or executive acts and rule on their constitutionality.[145] But the jurisdictional cases relevant to the scope of federal power over the National Guard are those dealing with the power of the federal judiciary over the states. State sovereign immunity,[146] abstention,[147] exhaustion in federal habeas corpus proceedings,[148] and the Erie doctrine[149] are [Page 348] all examples of judicial doctrines that seek to draw a line between the powers of the federal courts and state sovereigns. These lines have been drawn less clearly than those drawn between the coordinate branches, reflecting the more complex interests at stake.[150] These cases deal with complex procedural and jurisdictional matters, but through all of them runs a common theme: respect is due the power of a state to control its own affairs and citizens, unless important and overriding federal interests are identified. This respect is necessary to allow the states to develop policy independently and effectively and to provide the 'nuts and bolts' of what the citizenry expects of 'government.'[151] In addition, even when important federal interests are at stake, the Court has been willing to engage in a balancing of interests that includes consideration of such factors as equity, comity, and federalism.[152] Although this theme has sometimes been boldly pronounced and at their times only alluded to in dicta, it nevertheless pervades the Court's approach to federal-state judicial relations.[153] This seemingly amorphous doctrine finds its roots in the records of the Convention[154] and in the Federalist papers.[155] The weaknesses identified in numerous areas of government under the Confederation drove the formation of the new Union.[156] Nonetheless, the disadvantages of a large central governmentto the rights of both individual and statesstill weighed heavily in the minds of many of the Framers.[157] Today such fears might not be justified. The political power of the states is great and indeed the federal courts, not [Page 349] the state governments, are viewed as the vanguard protectors of individual rights.[158] So what justifies restraint of federal power in the face of state rights? Perhaps the government closest to the people, most easy to reach, and most accessible to the governed, should in some cases be favored over the one farthest away, least accountable, and least accessible. The American tradition of governing by town meeting and petitioning city hall might not be a political reality at the state level today, but the strictures of required fiscal responsibility,[159] the policing responsibility, and the general mandate that state government provide services for daily life while not overtaxing the populace's resources are ever increasing realities. These realities still justify respect for the state as a sovereign and maintenance of constitutionally protected state rights. These same arguments and policies find application in another line of cases perhaps more applicable to the militia question. To a lesser extent than in the jurisdictional cases, the domestic power of Congress vis-a-vis the states has been the subject of much judicial inquiry.[160] Although some litigation and legislation involving the taxing and spending powers have generated theories of governmental power,[161] through the Commerce Clause the Court has found a forum for examining state sovereignty as a limitation on congressional power.[162] [Page 350]

- 192 -

The doctrines limiting the federal legislative power in favor of state interests have been less striking than in the judicial sphere.[163] Beginning with NLRB v. Jones & Laughlin Steel Corp.,[164] the twentieth-century Court has accorded great deference to Congress's power under the Commerce Clause. Under current Commerce Clause analysis, the courts uphold congressional action if there is any rational basis upon which Congress could find a relation between its action and interstate commerce.[165] The conventional wisdom has been, at least between 1937 and 1976, that there were no external constitutional limitations on the commerce power based on considerations of federalism.[166] The Constitution places very few express limitations on congressional power,[167] although the reservation to the states provided by the Militia Training and Officering Clause is one example.[168] But it was under just such a provision, the Tenth Amendment, that the Court was willing, in 1976, to strike down a 1974 amendment to the Fair Labor Standards Act in National League of Cities v. Usery.[169] Usery evidence a search by the Court for a workable way to identify those acts of Congress that treat the states in a manner inconsistent with their presupposed status under the federal scheme. Although Usery was grounded in the Tenth Amendment, it is instructive on the broader concepts of state sovereignty and is the clearest recent statement on what has become known as the 'New Federalism.'[170] In striking down federally mandated minimum-wage-and-hour standards for municipal transit workers, the Court held that Congress could not exercise power in a fashion that impairs the States' 'ability to function effectively in the federal system.'[171] This case was a resurrection of the Tenth Amendment as an affirmative [Page 351] limitation on federal power, an interpretation it had not generally enjoyed in prior cases,[172] and one which would not survive.[173] Subsequent cases in which the Court attempted to interpret Usery in light of fifty years of expansive Commerce Clause jurisprudence resulted in a 'traditional state functions' test.[174] The difficult application of Usery and its ultimate demise lay in the Court's inability to develop a principled way to distinguish between those functions that are necessary for a state's independent and meaningful existence and those that are not.[175] Finding the search futile, the Court flatly overruled Usery in Garcia v. San Antonio Metropolitan Transit Authority.[176] In Garcia, Justice Blackmun, who had provided the crucial fifth vote in Usery, but who had separately warned that he was 'not untroubled by certain possible implications of the Court's opinion,'[177] joined the four Usery dissenters in ruling that the exercise in line drawing presented by Usery made it 'difficult, if not impossible, to identify an organizing principle' by which traditional state functions could be distinguished from those that are not.[178] Justice Blackmun's shifting position on this issue reflects the Court's continuing search for the true meaning of state sovereignty in the federal system. In a case presenting a factual scenario more analogous to that posed by federal control over the state militia, the Court in FERC v. Mississippi[179] considered whether the federal government may condition continued state regulation on the state's acceptance of federal regulatory provisions.[180] In that case, Mississippi challenged a system in which continued state regulation of an area under the Federal Energy Regulatory Commission's (FERC's) jurisdiction was conditioned upon a state's consideration of recommendations made by FERC.[181] The

- 193 -

Court declined to strike down the measure because, although it did involve federal intervention in a state program [Page 352] essential to the state's sovereign existenceregulation of the state's energy utilitiesit was also voluntary. The harms to the state were only attendant to a regulatory scheme that was optional.[182] Because the state could consider the federal policies and then proceed on its own course, the interference with state sovereignty was minimal.[183] Such a ruling allows Congress to accomplish through administrative pressure and informal, yet powerful, institutional influence what presumably Congress could not do through express statutory language. In a case involving the Age Discrimination Employment Act's application to state and local governments, the Court again expressed its concern for state sovereignty. In EEOC v. Wyoming,[184] the Court considered the independence of the 'state qua state.' The Court refused, however, to strike down application of federal hiring standards to the state because the state could still pursue its objectives merely by complying with reasonable federal standards.[185] The federal regulation allegedly did not affect the state's role in making employment policy decisions but only prescribed the manner in which those policies were to be achieved.[186] Thus, the states were allowed to pursue their own interests while only minimally burdened by federal regulation. The Court chose not, however, to specify the level of 'procedural requirements' that would constitute a substantive interference meriting judicial correction. Many commentators point out that the theories of power and its division that lie just beneath the surface of the Constitution indicate that no affirmative restrictions on congressional power vis-avis the states are contained in the Constitution.[187] Rather, implied limitations are effected by internal political checks guaranteed by the power of the states and their institutional interests within the federal branches.[188] Opponents point out, however, that the interest of the states might no longer be adequately represented in the federal legislative process and that the judicial branch has a role in protecting states' 'rights' that underlie the federal structure of the Union.[189] The federalism question is therefore reduced to its essential core and is of compelling constitutional significance. State have an in-[Page 353]herent interest that is tied to every function that they perform. This is the interest of the state to be free from the restraint of intrusive federal control when attempting to meet the demands of its citizenry in the very real and necessarily pragmatic world of local government. This interest is most needful of protection in state executive branch areas, such as the control over the militia. Professor Tribe nicely summarizes the parameters of the problem as follows: If the institutional interests of state governments in limiting federal intrusion into hitherto local spheres of concern are ordinarily taken into account in congressional actions, then the political process of federal legislation may be counted on to incorporate a consistent check against the full use of congressional power. Conversely, since federalism is one of the postulates of the constitutional structure, if state institutional interest prove to be inadequately represented in Congress, then the Supreme Court's contemporary commerce clause doctrine would have to be considered deficient to the extent that it leaves state autonomy unprotected.[190] A logical extension of this theory is that when state interests are effectively disregarded by an act of Congress, as in the overseas training debate,[191] and thus the interests are per se

- 194 -

inadequately represented, then the Court must step in to ensure that representation. To date, the Court has not embraced such a theory. To be sure, the Court has been searching for the proper forum for an expression of some variation of this theory, to wit: FERC, EEOC, and Usery. Apparently, however, these cases have lacked a certain mix of factors that would find a majority of the Court comfortable with a vindication of state power as over federal action. Although these cases have implicated both state and federal interests, that seems to be missing is a sufficient basis in the text of the Constitution, a workable doctrinal approach to line-drawing, or an egregious enough harm to a structural postulate of the Constitution to merit invalidation of a federal act. The Court would require, it seems, a specific recognition in the Constitution itself of a function or power that is to be exercised by the states in their role as sovereigns but that is nevertheless also susceptible to federal regulation. Further, the Constitution would need to indicate that this very scheme of dual control is an intended objective of the system rather than some unwanted yet necessary byproduct. The power over the state militia and the militia's role in the national defense present just such a power relationship. [Page 354] B. Constitutional Protection for the State Militia Could challenges to the militia system present the right set of facts, the right judicial chemistry to allow the Court to develop a sound general theory of federal-state relations? Two federal district courts and one court of appeals have declined to do so.[192] One court of appeals, however, has accepted a challenge to federal regulation but on a narrow ground that does not embrace the broad postulates of federalism.[193] As more and perhaps higher courts grapple with such challenges, perhaps that will change.[194] The difficulties with the Court's prior attempts to develop a workable theory of state sovereignty are legion. The Court's decision to overrule Usery reflects a judicial discomfort in striking down a congressional act based on the amorphous notion of a state's 'traditional governmental functions.'[195] Similarly, financially coerced participation in a federal program that is truly 'optional,' or regulatory schemes that require states' compliance with only minimal procedural requirements, are constitutionally permitted.[196] In addition, prudential doctrines, such as standing and the political question doctrine, have also acted as obstacles to the vindication of states' rights.[197] The militia system and challenges to the training and officering schemes imposed by the federal government rise above these problems. This particular mix of competing interests provides an appropriate forum that a majority of the Court could embrace to provide a clear statement that the federal government in this area has encroached too far into state government territory. 1. On the Merits The Constitution's structural provisions regarding the militia describe an institution of federal and state dimension. Specific textual reference is made to both state and federal powers that are to be exercised in governing this institution.[198] Both actors are to have a [Page 355] role in its

- 195 -

governance. Over time the federal government has through various means increased its domain over the institution, resulting in a proportional decrease in state power.[199] Serious and judicially cognizable harms to state interests,[200] as well as to the general efficacy of the militia,[201] have resulted from this imbalance. Moreover, a group of litigantsthe governors or state legislators of the various stateshas standing to raise challenges to specific aspects of the system that go too far in intruding on state powers.[202] The arguments available to these litigants appeal to a wide range of judicial approaches to decisionmaking. For the textualist, there is clear language in Article I defining the state's role against the broader power of the federal government.[203] To appeal to the structuralist, there is the notion that the national government is responsible for foreign affairs and should not force the states to give their imprimatur to a foreign policy in which they have no voice. Also, for the structuralist there is the concept that the government may only use the militia for its core functions. For the doctrinalist, there are the notions of federalism and state sovereignty. Although unable alone to provide the basis for prior affirmative vindications of states' rights against Congress, these approaches to constitutional interpretation might work in tandem to carry the day. Two different federal courts of appeals have addressed the overseas training issue. In 1987, Rudy Perpich, the Governor of Minnesota, challenged the constitutionality of the Montgomery Amendment.[204] In upholding the Amendment, the district court relied primarily on a construction of the Constitution's militia provisions that narrowly defined the state's power and expansively defined the federal role.[205] The court reasoned that the gubernatorial consent provisions of prior federal statutes covering federalization for training were merely congressional niceties; they were not constitutionally mandated, and what Congress had the power to give it could easily take away.[206] The court did not, however, consider the broader approach that embraces notions of federalism and state sovereignty. When the case eventually reached a three judge panel of the Eighth Circuit, however, the district court was re-[Page 356]versed.[207] The panel made hardly any reference to the district court's opinion, but instead analyzed the case as if before a court for the first time. The opinion began with a comprehensive survey of the Framer's intent and looked to the text of the Militia Clauses, interpreted by the Selective Draft Law Cases. The panel found that in order for Congress to call forth militia there must be a stated 'national exigency.' Because there was no such statement made with the enactment of the Montgomery Amendment, the panel held the Amendment unconstitutional.[208] The panel also rested its conclusion on what it deemed a consistent deference by Congress to the states' control over the militias prior to the enactment of the Montgomery Amendmenta questionable proposition at best.[209] Thus casting the Montgomery Amendment as an aberration, the court avoided speaking to the untrammeled encroachment of the federal government into this area of state power. Although the conclusion of the Eighth Circuit panel's opinion is the preservation of the gubernatorial consent provision, the analysis is devoid of any reference to state interests or the notion of federalism as a constitutional protection that might be applied to federal-state relations in a general way. In this sense, the panel did not go far enough. On the other hand, perhaps the panel acted appropriately. After all, it better suits the role of a federal court of appeals to be conservative both in the instances and the manner in which it

- 196 -

strikes down federal legislation.[210] Ultimately, it is the Supreme Court that should make broad pronouncements with such great national ramifications as that called for by this Note. A Massachusetts federal district court took a slightly different approach than the district court in Minnesota when Governor Michael Dukakis challenged the Reagan Administration's plan to send state guardsmen overseas.[211] In that case, Governor Dukakis primarily argued that because the guardsmen never cease to be militiamen, the constraints of the Militia Clauses always apply.[212] On its face, reasoned the court, this logic renders unconstitutional the dual enlistment system.[213] This system is clearly a vehicle for circumventing the language of clause 15 delineating the circumstances under which the President can call out the militia. Because the dual enlistment system's constitutionality was upheld in the Selective Draft Law Cases,[214] the court concluded that the Militia Clause could not work [Page 357] as an independent check on federal power over the militia.[215] The First Circuit affirmed stating merely that it adopted the reasoning of the district court.[216] The whole underlying context of the Selective Draft Law Cases was the gathering storm of the First World War. This atmosphere fostered a reading of clauses 15 and 16 that was strained, at best, in order to further a general interest embodied in the structure of those clauses. The United States' use of the militia in that conflict was of a character similar to those core militia functions embodied in clause 15, which the Framers conceived would be appropriate for federal use.[217] No such statement can be made about the use of national guardsmen for peacetime 'training' in politically and militarily sensitive overseas areas. The Dukakis court declined to consider that while the dual enlistment system ensures that Congress can make all laws necessary and proper for the raising of armies and defense of the nation during wartimeeven to the extent of using the Guards overseasgubernatorial consent for peacetime training ensures that, short of national emergency, a state's power over the Guard is not circumscribed. Preserving this gubernatorial consent strikes the appropriate balance and allows both the state and federal governments to act in ways consistent with what the Framers conceived would be their proper powers and duties. 2. Prudential Considerations The difficulties in striking down a provision like the Montgomery Amendment or the federal recognition system for officers are many.[218] The prudential doctrines that the Supreme Court has used to avoid hurling constitutional thunderbolts, what Professor Bickel has called the 'Passive Virtues,'[219] could very well work to prevent judicial review of the merits. The opinions by the Dukakis and Perpich courts did not raise these issues; it seems that their reliance on narrow grounds to decide the merits allowed them to avoid making sweeping constitutional pronouncements that would trigger such concerns. As more and higher courts deal with these issues perhaps broad inquiries into the federalism and structural concerns, as outlined above, will become inevitable. First, the political question doctrine [Page 358] might stand in the way of the Court getting involved in this struggle between the states and the federal government.[220] Second, because training overseas implicates the nation's foreign policy, states may not have standing to challenge the federal law. Third, and perhaps most importantly, the traditional deference shown Congress and the President in the area

- 197 -

of national defense is considerable; there is perhaps no policy area over which the political branches are considered to have such plenary control.[221] The political question doctrine does not preclude judicial resolution of the current controversy over the National Guard. This doctrine is prudential and discretionary and is used by a court to preserve its own institutional legitimacy.[222] The doctrine should not be construed to impede the vindication of fundamental constitutional values. It has not stood in the way of federal protection from encroachment on individual rights by the state,[223] and similarly should not be used to allow impermissible federal encroachment on state authority.[224] Although the jurisprudence of states' rights is not settled, state sovereignty is a recurring theme and the Court is aware that this area is sorely in need of judicial attention.[225] Be-[Page 359]cause the standards defining the institutional interests of the states under the Constitution are unclear does not mean that the political question doctrine should be used to prevent their clarification. In a theory that finds its roots in those considerations that give rise to the political question doctrine, Professor Wechsler dismisses the concept of judicial vindication of states rights.[226] He argues that those state interests that would be judicially considered are already part of the decisionmaking process at the legislative level; whatever protections are necessary for the state's maintenance of an independent and meaningful existence are already in place and the states make successful use of those protections.[227] However, because federal legislators represent individuals, it does not necessarily follow that Congress is the best forum for defining the constitutional rights of individuals.[228] Similarly, because the states are represented by individual members of Congress does not mean that courts should leave that body to define the rights of the states. Some critics argue that the states, in objecting to the overseas training missions in politically sensitive countries, are impermissibly meddling in the conduct of foreign affairs.[229] The states never have and never could have the power to conduct the foreign affairs of the nation. Does the federal government have the right, though, to force the states to give their institutional imprimatur, indeed provide their most basic executive resources, to a foreign policy program with which the states may vehemently disagree? Surely states are required to give full support to federal programs under the Supremacy Clause[230] and for the preservation of the Union. But the Framers, through the militia provisions and the Second Amendment, sought to avoid the same situation that results when an adventurous federal government is allowed to force the states to provide its military resources for anything other than national defense or emergency.[231] The constitutional structure tacitly postulates limitations that prevent the maintenance of a standing [Page 360] army in excess of true national security needs.[232] The state militia should be reserved to the states consistent with those postulates. The states should not be forced to commit their resources to foreign affairs or national security policies with respect to which the federal government cannot politically justify committing its own resources, and with regard to the decision to involve American military forces the states have no input.[233] Perhaps most difficult to answer are the questions about the traditional deference given the political branches when it comes to national defense. Well settled is the principle that during

- 198 -

times of war Congress and the Executive may act in a way that would unquestionably be unconstitutional under other circumstances.[234] The more difficult question arises when the federal government acts in a way inconsistent with its powers under the Constitution, during a time when the nation is not at war but when the possibility or the threat of armed conflict is the justification for the act. When the acts of Congress are aimed towards arming, training, and supervising the armed forces, Congress is acting in one of its most unbridled and unrestricted capacities. Still, in the area of peacetime regulation no one would argue that there are no affirmative limitations on Congress's power over what has come to be known as national security issues. The fact that we live in a dangerous world and that Congress has the responsibility for keeping that world at bay cannot mean that the Court should abdicate its duty to define the basic constitutional pillars that support our national defense system. Congress has wide discretion but not so wide that it may ignore the dictates of the document that is the source of its power and which grants it that discretion. The structure of our national military forces and those of the states is defined by Article I,[235] and that article reserves powers to the states over their respective militia, powers that Congress is today abridging.[236] Federal discretion over national defense issues cannot go so far. [Page 361] Conclusion The National Guard is the modern militia reserved to the States.[237] This principle is as valid today as two hundred years ago. The statutory framework that attempts to make the state Guards into a standing federal reserve force is out of step with that fundamental principle. Some professional military personnel and those in the business of advising them believe that the militia concept is an anachronism that is itself out of step with the realities of the Nuclear Age.[238] Perhaps so. Perhaps what is really needed is an abolition of the militia and an all-federal reserve force in its place. Yet, given the multiplicity of what many consider more pressing national issues meriting a constitutional amendment, this is not a political or practical reality. So what is left is a system that is by its very nature less than optimal. In the language of statisticians, given these constitutional and political constraints, how should the variables be arranged to arrive at the optimal solution, and what role should the courts take in this optimization? The answer to the first question depends on the answer to the second. The Court's role is to say what the constraints are and develop a theory by which the political branches may predict beforehand what the constraints in future situations will be.[239] Once the political branches and the states know where the end of state control is and where federal power begins, then these two actors can concentrate on making their individual contributions to the ultimate defense solution as effective as possible. If the states must maintain independent military forces for their own purposes, but also must supplement the national defense, then the courts and Congress should be ensuring that the states are allowed to do what must be done to serve both of these ends. Congress could begin by recognizing this truth and reforming the National Guard system to give the states more independence in developing and executing militia policy. Until such action occurs, however, the courts could aid in this process by striking down fe-[Page 362]deral provisions that overstep the bounds of federal power over this uniquely state-federal institution.

- 199 -

Patrick Todd Mullins * This Note was developed by Patrick Todd Mullins. 1. Perpich v. United States Dep't of Defense, 666 F. Supp. 1319, 1325 (D. Minn. 1987). Governor Perpich asserted that the Montgomery Amendment, 10 U.S.C. 672(f) (Supp. IV 1986), which removed the requirement of gubernatorial consent for federal training of state National Guard units, was unconstitutional. Perpich, 666 F. Supp. at 1325. 2. Perpich, 666 F. Supp. at 1325. 3. Dukakis v. United States Dep't of Defense, 686 F. Supp. 30, 38 (D. Mass. 1988). 4. Dukakis v. United States Dep't of Defense, 859 F.2d 1066, 1066 (1st Cir. 1988). 5. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. at 3 (8th Cir. Dec. 6, 1988). 6. Perpich v. United States Dep't of Defense, No. 87-5345, slip. op. (8th Cir. Jan. 11, 1989). 7. See generally Hirsch, The Militia Clauses of the Constitution and the National Guard, 56 U. CIN. L. REV. 919 (1986) (providing a recent analysis of the constitutional issues involved with today's National Guard system); Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181 (1940) (providing a legal history of the Article I clauses that describe the government's power over the militia as well as the federal statutes enacted pursuant to those clauses). For a more in-depth discussion of Hirsch's view of the system, see infra note 81. 8. See HEADQUARTERS, DEP'T OF THE ARMY, NATIONAL GUARD REGULATION 101 (1987) [hereinafter HQDA, NGR]; NATIONAL GUARD ALMANAC 77 (S. Gordon & A. Ungerleider eds. 1988) [hereinafter ALMANAC]. 9. See infra notes 12-13 and accompanying text. A distinction exists between 'organized' militia, a regularly drilling unit of armed citizens, and 'unorganized' militia, which consists of all ablebodied men in the nation between the ages of 17 and 45. See 10 U.S.C. 311 (1982). The distinction is not crucial to this discussion, and consequently, reference to the National Guard in this Note relates only to the concept of an 'organized' militia. 10. For a concise summary of the historical role of the militia in British colonial North America, see J. HILL, THE MINUTE MAN IN PEACE AND WAR: A HISTORY OF THE NATIONAL GUARD 1-31 (1964). 11. See, e.g., N.C. CONST. art. XII, 1; PA. CONST. art. IV, 7; VA. CODE ANN. 44-8 (1986). 12. See 32 U.S.C. 101(5) (1982) (defining the 'Army National Guard of the United States').

- 200 -

13. See 10 U.S.C. 101 (1982) (defining the components of the U.S. military forces). 14. See infra notes 86-88 and accompanying text. 15. Throughout this Note, 'the militia' refers to the general institution or system rather than a specific statutory or juridical entity. It is understood that 'the militia' are essentially state organizations, and references to the federal militia will therefore proceed the term 'national' or 'federal' when that distinction is desired. 16. See J. HILL, supra note 10. For a treatment of the history of the militia in England and preRevolutionary America, see M. REID, IN DEFIANCE OF THE LAW (1981). Reid details the role of militia during the Revolution, the strengths and weaknesses of military forces at the local level, and how they related to the controversy over whether to have a standing army during the colonial period. Id. See generally J. MAHON, THE HISTORY OF THE MILITIA AND THE NATIONAL GUARD (1983) (providing a recent and comprehensive history of the militia); W. RIKER, SOLDIERS OF THE STATES: THE ROLE OF THE NATIONAL GUARD IN AMERICAN DEMOCRACY (1957) (detailing the history of the militia up until the Vietnam era). 17. See J. MAHON, supra note 16, at 9-13; W. RIKER, supra note 16, at 1-10. 18. See infra notes 38-74 and 82-89 and accompanying text. 19. For a few instances in which the Supreme Court has addressed such broad constitutional issues, see Gilligan v. Morgan, 413 U.S. 1, 11-12 (1973) (holding that purely technical questions regarding the adequacy of National Guard training presented nonjusticiable political questions); United States v. Miller, 307 U.S. 174, 177-82 (1939) (interpreting the Second Amendment as barring federal control over the states in governance of the militia, but not barring federal regulation of private conduct such as handgun ownership); Selective Draft Law Cases, 245 U.S. 366, 387-88 (1918) (upholding Congress's power to draft members of the state militia pursuant to a declaration of war). 20. U.S. CONST. art. I, 8, cls. 15, 16, 18. 21. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 293 (M. Farrand ed. 1911) [hereinafter FARRAND]. 22. Id. at 326. 23. 2 FARRAND, supra note 21, at 330-33. 24. THE FEDERALIST NO. 29, at 172 (A. Hamilton) (H. Lodge ed. 1888) (emphasis added). 25. The draft language read:

- 201 -

To make laws for organizing[,] arming and disciplining the militia, and for governing such part of them as may be employed in the service of the U.S., reserving to the States respectively, the appointment of the officers, and the authority of training the Militia according to the discipline prescribed by the United States. 1787 DRAFTING THE U.S. CONSTITUTION 913 (W. Benton ed. 1986) [hereinafter BENTON]. 26. 1 FARRAND, supra note 21, at 386. 27. Id. at 381. 28. The Second Amendment also mentions the militia, stating that '[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.' U.S. CONST. amend. II. Although on its face this amendment appears to be an affirmative protection of the people's right to bear arms in order to maintain the militia, it has been read rather as an affirmation of the importance the Framers placed on the local character of the military forces belonging to the states. See United States v. Miller, 307 U.S. 174, 178 (1939). 29. See, e.g., 10 U.S.C. 311, 32 U.S.C. 101-716 (1982 & Supp. IV 1986). 30. See infra notes 99-108 and accompanying text. 31. See E. COLBY, THE NATIONAL GUARD OF THE UNITED STATES I-5 (1977) (detailing militia service in the French and Indian War between 1754 and 1763); J. MAHON, supra note 16, at 14-28 (noting that responding to Indian threats was the main use of the militia). 32. The Contingental Army was the forerunner of the federal Regular Army. M. REID, supra note 16, at 9. See generally L. SPAULDING, THE UNITED STATES ARMY IN WAR AND PEACE (1937) (providing an authoritative history of the U.S. Army prior to the Second World War). 33. See W. RIKER, supra note 16, at 11. 34. Ch. 25, 1 Stat. 95 (1789) (repealed 1790). 35. Id. 1, 1 Stat. at 96. 36. James Madison's notes on the Constitutional Convention in 1787 capture the impetus to this legislation. In these notes he acknowledges that one of the Convention's participants pointed out that '[t]he existing Congress [was] so constructed that it [could not] of itself maintain an army.' BENTON, supra note 25, at 155. 37. See W. RIKER, supra note 16, at 11-20.

- 202 -

38. Ch. 33, 1 Stat. 271 (1792). 39. Professor Wiener noted that under this regime the militia was required to muster only once a year and that '[a]t these occasions, as far as can now be ascertained, Mars was less in evidence than Bacchus.' Wiener, supra note 7, at 187. 40. Federal Militia Act of 1792, 1, 1 Stat. at 271. 41. Id. 42. Id. 43. See J. MAHON, supra note 16, at 53; W. RIKER, supra note 16, at 21- 61. 44. Act of Sept. 29, 1789, ch. 25, 1 Stat. 95, 96 (repealed 1790). 45. See J. MAHON, supra note 16, at 127. 46. See id. 47. See W. RIKER, supra note 16, at 60-61. 48. Ch. 196, 32 Stat. 775 (1903) (repealed 1956). 49. See J. HILL, supra note 10, at 186-89. 50. See Weiner, supra note 7, at 195. 51. The Dick Act was partly the result of intense lobbying efforts by the National Guard Association (NGA), a private professional organization representing members from the ranks of the state Guards. The NGA was and continues to be the primary private lobbying group for the state Guards. This association can be credited with much of the political work resulting in improved support for the militia. See W. RIKER, supra note 16, at 68-70. 52. See Dick Act, 3, 32 Stat. at 775. The term was already in use in some states, and is thought to have originated from a visit by Lafayette in 1824 in which he remarked that a New York militia unit reminded him of the Paris National Guards. E. COLBY, supra note 31, at I-1. 53. Dick Act, 3, 32 Stat. at 775. 54. Id. 20, 32 Stat. at 779. 55. Id. 14, 32 Stat. at 777. See generally H.R. REP. NO. 1094, 57th Cong., 1st Sess. (1902) (providing background on the Dick Act); S. REP. NO. 2129, 57th Cong., 1st Sess. (1902) (same).

- 203 -

56. Ch. 204, 35 Stat. 390 (1908). 57. Id. 4, 35 Stat. at 400. 58. See supra text accompanying note 20. 59. UNITED STATES WAR DEP'T, DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY: 1912-1940, at 644 (1942). 60. 29 Op. Att'y Gen. 322 (1912). 61. Ch. 134, 39 Stat. 166 (1916) (current version in scattered sections of 10 U.S.C. and 32 U.S.C.). 62. See Hirsch, supra note 7, at 945-46. 63. Ch. 134, 111, 39 Stat. at 211 (repealed). 64. See Weiner, supra note 7, at 203 & n.128. 65. Ch. 134, 67, 39 Stat. at 199-200 (1916) (current version at 32 U.S.C. 106-107, 708 (1982)). 66. See H.R. REP. NO. 297, 64th Cong., 1st Sess. 9 (1916). Although this and all subsequent legislation concerning militia did not create mandatory obligations or procedures, the states had no choice but to abide by it. No language required the states to do anything with their militias. The laws did, however, increase the standards of readiness, manpower, and equipment that the states had to meet pursuant to the 'standard to be determined by Congress' provision of the Militia Training and Officering Clause of Article I. See U.S. CONST. art. I, 8, cl. 16. A recurring fact pattern emerges: the states, faced with ever more demanding standards but unable to pay for upgrading, are forced to accept both federal funding and the resulting loss of control that goes along with that funding. See infra note 73. 67. Ch. 134, 111, 39 Stat. at 211 (repealed). 68. Id. 60, 39 Stat. at 197 (current version at 32 U.S.C. 104(d)-(f) (1982)). 69. Id. 69, 39 Stat. at 200 (current version at 32 U.S.C. 302 (1982)). 70. Id. 102-108, 39 Stat. at 208-09 (current version at 32 U.S.C. 326-333 (1982)). The modern Uniform Code of Military Justice is contained in 10 U.S.C.A. ch. 47 (West 1983 & Supp. 1988). 71. National Defense Act of 1916, 74-75, 39 Stat. at 201-02 (current version at 32 U.S.C. 305, 307(a)-(c) (1982)).

- 204 -

72. See W. RIKER supra note 16, at 80-82. 73. As this Note's treatment of the development of the National Guard system will reveal, the damages to state interests usually result from a program of federal conditional spending. Although not all of the harms result from such programs, those that do introduce a new aspect to the analysis. Questions concerning the validity of coercive federal spending are part of a broader subject usually referred to as 'unconstitutional spending,' a detailed analysis of which is beyond the scope of this Note. The general question, however, strikingly resembles the queries involved in the general state sovereignty versus federal power debate. Does the power of the government to deny a privilege include the power to grant it on any condition, including the surrender of the state's constitutional right to maintain and protect its institutional interests? For an interesting treatment of conditional spending as it relates to the autonomy of the states, see La Pierre, Political Accountability in the National Political ProcessThe Alternative to Judicial Review of Federalism Issues, 80 NW. U.L. REV. 577, 591-96, 601 n.125 (1985). In the case at hand, does the power of the federal government to deny federal funding to state National Guard units include the power to grant such funding on the condition that state Guards subject themselves to regulatory controla control so pervasive that it prevents the states from maintaining the units for state purposes? In addition, may the federal government conditionally spend in such a way as to involve states in foreign policy issues without their permission or approval? The questions admit of no categorical answer. As with so many areas of constitutional law, the unconstitutional conditions doctrine requires a balancing test. The Court has used a case-by-case approach in conditional spending cases, and therefore, it seems that the factors to be weighed are the same as those involved in the general federalism debate. See generally Rosenthal, Conditional Federal Spending and the Constitution, 39 STAN. L. REV. 1103 (187) (providing a comprehensive discussion of conditional spending). How well-established and important are the state interests impinged by the conditions will be measured against Congress's power to legislate in the area. See id. at 1106. In particular, Professor Rosenthal laments the demise of National League of Cities v. Usery, 426 U.S. 833 (1976), because it would have provided a baseline for comparison between direct federal legislation and conditional spending. See Rosenthal, supra, at 1139. This issue leads inevitably back to the same questions posed at the outset: (1) what are the state and federal interests at stake; (2) are the state interests being harmed to an extent that a judicial solution is justified; and (3) how can a judicial solution be crafted so as to be consistent with a general theory of federalstate relations? 74. National Defense Act of 1916, 61, 39 Stat. at 198 (current version at 32 U.S.C. 109 (1982)). The NDA also authorized the Regular Army to form its own reserve forces. Id. 30, 39 Stat. at 187 (repealed). This mandate gave rise to the U.S. Army Reserve, the Officers' Reserve Corps, and the Reserve Officers' Training Corps, thus providing the third leg of the eventual tripartite 'Total Force' concept. See J. CARLTON & J. SLINKMAN, THE RESERVE OFFICERS ASSOCIATION STORY 9-10 (1985); R. CROSSLAND & J. CURRIE, TWICE

- 205 -

THE CITIZEN 28-32 (1984); J. MAHON, supra note 16, at 253. For a further discussion of the Total Force concept, see infra note 95. 75. 245 U.S. 366, 368, 387-89 (1918). 76. U.S. CONST. art. I, 8, cl. 15. 77. 245 U.S. at 368. 78. U.S. CONST. art. I, 8, cl. 12. 79. 245 U.S. at 368. 80. See 10 U.S.C. 101 (1982) (defining 'Army National Guard of the United States' as 'the reserve component of the Army all of whose members are members of the Army National Guard'). 81. See Hirsch, supra note 7. Hirsch notes that this dual status is the lynchpin of the modern federal militia system and the current system of complete federal control. Hirsch sees the Selective Draft Law Cases as a broad expansion of clause 15 powers, and therefore a carte blanche for Congress's use of the militia as long as they are 'federalized.' See id. at 959-61. 82. Ch. 227, 41 Stat. 759 (repealed 1950). 83. See supra text accompanying notes 51-55. 84. Ch. 227, 3a, 42, 44, 49, 41 Stat. at 759, 760, 782, 784. 85. Id. 111, 41 Stat. at 784. 86. Ch. 87, 48 Stat. 153 (1933) (current version in scattered sections of 10 U.S.C. and 32 U.S.C.). 87. See id. 5, 48 Stat. at 156 (current version at 32 U.S.C. 313 (1982)) (establishing that the National Guard may only be called upon in accordance with the law). 88. See id. 18, 48 Stat. at 160 (repealed) (declaring that the Guard may be called up for active duty in time of war or national emergency). 89. Id. 11, 48 Stat. at 156 (current version at 32 U.S.C. 312 (1982)). 90. Pub. L. No. 82-476, 66 Stat. 481 (1952) (largely repealed). 91. Id. 233(c), 66 Stat. at 489 (repealed). 92. Proclamation No. 4360, 40 Fed. Reg. 14,567 (1975).

- 206 -

93. Cf. BINKIN, U.S. RESERVE FORCES: THE PROBLEM OF THE WEEKEND WARRIOR 1-3 (1974) (providing a study of the reserve components and their status throughout this period of reduction in forces). 94. See H.R. REP. NO. 1069, 94th Cong., 2d Sess. 3-5, reprinted in 1976 U.S. CODE CONG. & ADMIN. NEWS 517, 518. 95. The Total Force was first conceptualized by Pentagon planners in the face of political and budgetary pressures to reduce the standing Army. This concept is an integrated theory of a national conventional defense and remains the basic organizing principle for United States land forces. See J. MAHON, supra note 16, at 243; Hearings on the Department of Defense Appropriations for 1987 Before the Subcomm. on the Department of Defense of the House Comm. on Appropriations, 99th Cong., 2d Sess., pt. 7, at 623 (1986) [hereinafter 1986 House Hearings]. 96. 10 U.S.C. 101(4), (33) (1982) (defining 'Regular Army'). 97. Id. 101(4), (35) (defining 'Reserves'). 98. See infra note 108. 99. See 1986 House Hearings, supra note 94 (statement of Lieutenant General Emitt Walker, U.S. Army, Chief, National Guard Bureau). 100. See P. VAN SLYCK, STRATEGIES FOR THE 1980s, 17-32 (1981). 101. See Department of Defense Authorization for Appropriations for Fiscal Year 1987: Hearings on S. 2199 Before the Senate Comm. on Armed Services, 99th Cong., 2d Sess. 343 (1986) (Report of Secretary of Defense to Congress, Feb. 5, 1986). 102. Id. 103. See Weinberger, The Defense Budget: Perspectives and Priorities, in THE DEFENSE BUDGET 13 (1972); Sarkesian, The Myth of U.S. Capability in Unconventional Conflicts, MILITARY REV., Sept. 1988, at 2, 10 (stating that Reserves are part of the current United Special Operations Command). 104. See Hearings on Federal Authority over National Guard Training Before the Subcomm. on Manpower and Personnel of the Senate Comm. on Armed Services, 99th Cong., 2d Sess., pt. 7, at 571 (1986) [hereinafter 1986 Senate Hearings] (prepared statement of James H. Webb Jr., Assistant Secretary of Defense for Reserve Affairs). 105. See id. 106. See id. at 572.

- 207 -

107. See 10 U.S.C. 673b (1982 & Supp. IV 1986). 108. Military experts, both on active duty and in the reserve components, debate the military efficacy and soundness of this Total Force strategy, but few debate that the Guards are no longer creatures of the state first and reserves for the federal force second. See, e.g., R. KILLEBREW, CONVENTIONAL DEFENSE AND TOTAL DETERRENCE 85-140 (1986); J. RECORD, REVISING U.S. MILITARY STRATEGY 91 (1984); 89 Budget Cuts Active, Keeps Reserve Build-up, Army Times, Feb. 29, 1988, at 1-6. 109. See 11 States Seek Right to Restrict Guard's Training, N.Y. Times, June 17, 1987, at A10, col. 3 [hereinafter 11 States]; Broder, Hands Off National Guard, Governors Say, Wash. Post, Aug. 27, 1986, at A5, col. 1. 110. Pub. L. No. 99-661, 522, 100 Stat. 3816 (1986) (codified at 10 U.S.C. 672(f) (Supp. IV 1986)). 111. See The Guard in Honduras, NEWSWEEK, Feb. 17, 1986, at 36. 112. Id. (noting that the federal government commonly sends Guard troops to places like Europe, the Middle East, and Southeast Asia). 113. See 11 States, supra note 108; Broder, supra note 108. 114. Among them were Michael Dukakis of Massachusetts, Richard Celeste of Ohio, and George Deukmejian of California. See Hochberg, Massachusetts Won't Invade Honduras, PROGRESSIVE, June 1986, at 17; Peirce, Control of National Guard a Federalism Issue, 1987 NAT'L J. 388, 388. Commentators have attributed disagreement with Reagan foreign policy in Central America as the motivation for the Governors' opposition. See 1986 Senate Hearings, supra note 104. This allegation, however, to the extent that is has any bearing on the merit of constitutional issues in the debate, favors a gubernatorial consent requirement as the Militia Clauses were meant as a check of federal military power. See infra note 137 and accompanying text. 115. Broder, supra note 109, at A5, col. 2. 116. Pub. L. No. 99-661, 522, 100 Stat. 3816 (1986) (codified at 10 U.S.C. 672(f) (Supp. IV 1986)). 117. See 10 U.S.C. 672(b), (d) (1982). 118. Id. 672(f) (Supp. IV 1986). The Montgomery Amendment added a new subsection to 10 U.S.C. 672, subsection (f), stating: 'The consent of a Governor described in subsections (b) and (d) may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty.'

- 208 -

119. The model case illustrating this structural approach to constitutional decisionmaking is McCulloch v. Maryland, 17 U.S. 316 (1819) (striking down Maryland's attempt to tax the Second Bank of the United States). In McCulloch, Chief Justice Marshall looked to the Necessary and Proper Clause and derived constitutional structures that inhere in the words themselves. Id. at 407. These structures confer rights to certain constitutional playersone of the three coordinate branches, the states, or individuals. These rights are ancillary to those explicit in the text. For a more thorough discussion of this structural approach, see C. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969). For a more modern discussion, see P. BOBBITT, CONSTITUTIONAL FATE 74-92 (1982). 120. See Redish & Drizin, Constitutional Federalism and Judicial Review, The Role of Textual Analysis, 62 N.Y.U. L. REV. 1, 38-41 (1987). 121. See Dukakis v. United States Dep't of Defense, 686 F. Supp. 30, 30 (D. Mass.), aff'd, 859 F.2d 1066 (1st Cir. 1988); Perpich v. United States Dep't of Defense, 666 F. Supp. 1319, 1319 (D. Minn. 1987), rev'd, No. 87-5345, slip op. (8th Cir. Dec. 6, 1988), vacated and reh'g granted, No. 87-5345, slip op. (8th Cir. Jan. 11, 1989). 122. See infra notes 139-41 and accompanying text. 123. See supra note 19 and accompanying text. 124. See supra note 19. 125. The Regulations of the National Guard Bureau fill several volumes, cover many subjects, and effectively apply the panoply of federal military standards to National Guard units and personnel. See HQDA, NGR, supra note 8, at 1-10 to 870-20. 126. See supra note 71 and accompanying text. 127. HQDA, NGR, supra note 8, at 350-1, 1-19. 128. See supra notes 50-55 &61-73 and accompanying text. 129. 32 U.S.C. 109(a) (1982). Congress has prohibited the states from keeping any 'troops,' other than the 'National Guard' and so called 'defense Forces,' that are not subject to call to military duty. Therefore, members of the National Guard and 'defense Forces' are not 'troops.' But cf. United States v. Miller, 307 U.S. 174, 178-79 (1939) (noting the important distinction between '[t]he Militia which the States [are] expected to maintain and train' and 'the Troops they [are] forbidden to keep without the consent of Congress'). 130. See THE FEDERALIST NOS. 25 & 28, at 209, 227 (A. Hamilton) (J. Hamilton ed. 1866); 2 FARRAND, supra note 21, at 135.

- 209 -

131. See ALMANAC, supra note 8; NATIONAL GUARD ASS'N OF THE UNITED STATES, ANNUAL REPORT TO THE GENERAL CONFERENCE 2 (1988). 132. This philosophy of judicial interpretation has enjoyed varying degrees of popularity. Compare Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional 'Interpretation,' 58 S. CAL. L. REV. 551, 597 (1985) (concluding that 'originalism' is a 'real option' for judges faced with questions of constitutional interpretation) with Brest, The Misconceived Quest for Original Understanding, 60 B.U.L. REV. 204, 234-37 (1980) (criticizing the theory of original intent as a doctrine of constitutional interpretation). 133. See supra notes 21-27 and accompanying text. 134. The militia concept was a compromise that avoided the necessity of a large standing army. Moreover, a standing army was unpopular because of its potential threat to individual and state rights. L. SCHWOERER, 'NO STANDING ARMIES!' 198-99 (1974). One scholar has suggested that fear of foreign service for the militia might have motivated this compromise. Hirsch, supra note 7, at 940-42 & n.116. 135. See 29 Op. Att'y Gen. 322 (1912) (stating that the President did not have the authority to send militia abroad for any purpose). Although this opinion is not law today, it adds force to argument that this was the understanding of the Framers. See also J. ORDRONAUX, CONSTITUTIONAL LEGISLATION IN THE UNITED STATES 503 (1891) (stating that '[t]he militia of the States restricted to domestic purposes alone, are to be distinguished therefore from the army proper'); Hirsch, supra note 7, at 930-31 (arguing that the Framers could never have intended militia use for foreign affairs operations). 136. See W. RIKER, supra note 16, at 18-20. 137. See W. REVELEY, WAR POWERS OF THE PRESIDENT AND CONGRESS 61 (1981). Reveley notes that 'peace was to be the customary state of the new nation. America [was to] avoid aggressive war abroad . . ..' More importantly, he states that '[t]his placed view of foreign relations precluded any explicit consideration of the use of American force abroad.' Id. 138. The language of Article I, section 8 is clear: Congress shall have the power to 'provide for organizing, arming, and disciplining the militia, and for governing such Part of them as may be employed in the Service of the United States.' U.S. CONST. art. I, 8, cl. 16 (emphasis added). Clause 16 must, however, be read in conjunction with clause 15, which confers to Congress the power 'for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repeal Invasions.' Id. 8, cl. 15. 139. See 2 FARRAND, supra note 21, at 330-55. For example, Farrand reports that 'Mr. Sherman, took notice that the States might want their Militia for defence agent [sic] invasions and insurrections, and for enforcing obedience to their laws. They will not give up this point--In giving up that of taxation, they retain a concurrent power of raising money for their own use.' Id. at 332.

- 210 -

140. The view that such familial ties within military units promotes spirit as well as a regular source of personnel remains pervasive today. But cf. W. RIKER, supra note 16, at 11 (asserting that the American colonies enacted draft laws modeled after the English militia system because of the lack of professional soldiers). 141. See HEADQUARTERS, DEP'T OF THE ARMY, FIELD MANUAL 22-100, MILITARY LEADERSHIP 22 (1988). 142. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (noting that 'the historic police powers of the state are not to be overridden by statute absent clear congressional intent'). 143. For two opposing viewpoints on the balancing of interests between the state and federal judiciaries and the problems therein, compare Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105, 1117 (1977) (suggesting that federal constitutional litigation should be 'channeled' to the federal courts because they are better suited for the task) with Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605, 622 (1981) (concluding that both state and federal courts must have a role and that neither should have a monopoly in enforcing federal constitutional principles). 144. 5 U.S. (1 Cranch) 137 (1803). 145. Id. at 177. 146. State sovereign immunity was first announced in 1890 as a doctrine of jurisdiction grounded in the Eleventh Amendment. Hans v. Louisiana, 134 U.S. 1, 10-20 (1890). In Hans, the Court held that citizens could not bring an action against their home state in federal court. Id. at 19-20. The Eleventh Amendment states: 'The Judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.' Sovereign immunity has been subject to some limiting doctrines over the last three-quarters of a century, but still stands as a prime example of judicial recognition of state interests in the federal system. See, e.g., Parden v. Terminal Ry., 377 U.S. 184, 192 (1964) (permitting a state to be sued in federal court if it waives sovereign immunity); Ex Parte Young, 209 U.S. 123, 159-60 (1908) (allowing suits against state officers who allegedly have violated federal law). 147. Abstention, first announced in Railroad Comm'n v. Pullman, 312 U.S. 496 (1941), requires that federal courts wait to decide cases that involve unsettled issues of state law until the courts of that state have had an opportunity to speak authorizatively. Pullman abstention also stands for the proposition that, when possible, constitutional questions are to be avoided. See id. at 500. 148. Exhaustion of state-level post-conviction remedies for state prisoners seeking federal habeas corpus relief is a statutory requirement. 28 U.S.C. 2254(b) (1982). This doctrine originally developed judicially, however, in Ex Parte Royall, 117 U.S. 241, 53 (1886). The courts have rigorously applied this requirement. See Note, State Waiver of the Exhaustion Requirement in Habeas Corpus Cases, 52 GEO WASH. L. REV. 419, 420 n.11 (1984). Although traditionally

- 211 -

regarded as a doctrine of efficiency, the exhaustion requirement also allows states to have a full opportunity to examine and administer each criminal case through a full appeals process. 149. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The landmark decision established the rule that the states are generally the prime source of the common law and that the federal courts are not empowered to create a general federal common law. Id. at 71. The Erie doctrine has seen many developments since 1938, but still stands as an example of respect for state interests in the balancing of federal and state judicial powers. 150. See Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387, 1408-10 (1987). 151. These were the three justifications offered as the foundations of 'Our Federalism,' a Supreme Court doctrine first developed in Younger v. Harris, 401 U.S. 37, 44 (1971). These doctrines buttress the general rule limiting federal court interference with certain important state functions. [152]. See Michelman, States' Rights and States' Roles: Permutations of 'Sovereignty' in National League of Cities v. Usery, 86 YALE L.J. 1165, 1193 (1977) (citing Rizzo v. Goode, 423 U.S. 362, 379 (1976)). 153. For more elaborate treatment of the effects of federalism on the shaping of federal judicial power, see M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 79-321 (1980). 154. 1 FARRAND, supra note 21, at 249-52, 337-38. 155. See THE FEDERALIST NOS. 29 & 39 (A. Hamilton & J. Madison). 156. See 3 FARRAND, supra note 21, at 548-49; Baucus & Kay, The Court Stripping Bills: Their Impact on the Constitution, the Courts, and Congress, 27 VILL. L. REV. 988, 997 (1982) (noting Hamilton's position that the lack of a federal judiciary was a great weakness of the Articles of Confederation). See generally THE FEDERALIST NOS. 41 & 42 (J. Madison) (noting several weaknesses in the government structure under the Articles of Confederation as reasons why powers should be transferred from the several states to a central government). 157. See 1 FARRAND, supra note 21, at 345-46, 355-57. 158. This recognition has taken both judicial and legislative form. In Mitchem v. Foster, 407 U.S. 225 (1972), the Court commented favorably on the legislative history of Congress' enactment of 42 U.S.C. 1983, which allows citizens a private right of action against any person, acting under color of state law, to deprive them of their federal rights: This legislative history [of 1983] makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those

- 212 -

rights; it realized that state officers, might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts. . . . The very purpose of 1983 was to interpose the federal courts between the states and the people, as guardians of the people's federal rightsto protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial.' Id. at 242 (citing Ex parte Virginia, 100 U.S. 339, 346 (1879)). 159. Forty-nine states have constitutionally or statutorily mandated balanced budgets. THE COUNCIL OF STATE GOV'TS, THE BOOK ON THE STATES 229, Table 6.3 (1988-89). 160. See Epstein, supra note 150. 161. See, e.g., New York v. United States, 326 U.S. 572, 583-84 (1946) (denying New York immunity from federal taxation of revenues generated by state sales of bottled mineral water); United States v. Butler, 297 U.S. 1, 65 (1936) (recognizing that congressional power to spend for the general welfare extends beyond the items explicit in Article I, section 8); see also Monaghan, The Burger Court and 'Our Federalism,' 43 LAW & CONTEMP. PROBS. 39, 41 (1979) (noting that the major reason behind the transformation of the federal system was the modern federal role in taxing, borrowing, and spending). 162. See infra notes 164-66 and accompanying text. 163. See Freilich, Francis & Popejoy, State and Local Government at the Crossroads: A Bitterly Divided Supreme Court Reevaluates Federalism in the Bicentennial Year of the Constitution, 19 URB. LAW. 791, 831 (1987). 164. 301 U.S. 1, 48 (1937) (upholding application of the National Labor Relations Act to a large producer of steel to prevent unfair labor practices). 165. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 275-83 (1981). 166. See, e.g., Maryland v. Wirtz, 392 U.S. 183, 195-96 (1968) (upholding the Fair Labor Standards Act's minimum wage and overtime pay requirements against the states and their municipalities and specifically rejecting the notion that 'state interests' might outweigh Congress's exercise of otherwise valid constitutional power). The Court has held that other external limitations do, however, constrain the scope of Congress's power under the Commerce Clause. See United States v. Jackson, 390 U.S. 570, 582 (1968) (striking down Commerce Clause legislation as violative of the Sixth Amendment right to trial by jury); Leary v. United States, 395 U.S. 6, 52- 54 (1969) (finding an otherwise permissible Commerce Clause act violative of the Due Process Clause of the Fourteenth Amendment). 167. Congress is denied the power to lay any tax or duty 'on Articles exported from any State,' U.S. CONST. art. I, 9, cl. 5, to discriminate among state ports in its regulation of commerce or

- 213 -

revenue. Id. 9, cl. 6. Also, Congress may not join or divide states without their consent. Id. art. IV, 3. 168. Id. art. I, 8, cl. 16. 169. 426 U.S. 833, 853 (1976). 170. See Redish & Drizin, supra note 120; see also Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1426 n.9 (1987) (discussing the resurrection of federalism as a doctrine of constitutional significance). 171. 426 U.S. at 853 (quoting Fry v. United States, 421 U.S. 542, 547 n.7 (1975)). 172. Dee Darby v. United States, 312 U.S. 100, 124 (1941) (describing the Tenth Amendment as stating 'but a truism that all is retained which has not been surrendered'); Redish & Drizin, supra note 120, at 10-11 (noting the pre-Usery view that the Tenth Amendment meant that if a 'particular power has been given to the federal government, . . . then that power is tautologically not reserved to the state'). 173. See infra text accompanying note 176. 174. Although first announced in Usery, the traditional state functions test was not fully elaborated until Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 286-87 (1981). 175. Comment, Garcia v. San Antonio Metropolitan Transit Authority: Is the Political Process a Sufficient safeguard to State Autonomy?, 13 W. ST. L. REV. 261, 271 (1986). 176. 469 U.S. 528 (1985). 177. National League of Cities v. Usery, 426 U.S. 833, 856 (1976) (Blackmun, J., concurring). 178. Garcia, 469 U.S. at 539. 179. 456 U.S. 742 (1982). 180. Id. at 747-48. 181. Id. at 761. 182. Id. at 765-66. 183. Id. 184. 460 U.S. 226 (1983).

- 214 -

185. Id. at 240. 186. Id. 187. This view is most often associated with Professor Herbert Wechsler. See Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition of the National Government, 54 COLUM. L. REV. 543, 559 (1954); see also J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 176 (1980) (noting that the structural aspects of the national political process adequately protect the states). 188. See Wechsler, supra note 187, at 558. 189. Aspects of this argument have been applied to interpretation of the Eleventh Amendment. See Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413, 1441 (1975); Tribe, International Immunities in Litigation, Taxation and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 HARV. L. REV. 682, 69697 (1976). 190. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 241 (1st Ed. 1978). 191. References in the Congressional Record on the House debate over the Montgomery Amendment indicate that the amendment was considered for only minutes. See 132 CONG. REC. H6266 (daily ed. Aug. 14, 1986). 192. See Dukakis v. United States Dep't of Defense, 686 F. Supp. 30 (D. Mass.), aff'd, 859 F.2d 1066 (1st Cir. 1988); Perpich v. United States Dep't of Defense, 666 F. Supp. 1319 (D. Minn. 1987), rev'd, No. 87- 5345, slip op. (8th Cir. Dec. 6, 1988), vacated and reh'g granted, No. 875345, slip op. (8th Cir. Jan. 11, 1989). 193. See infra notes 207-09 and accompanying text. 194. Just prior to publication of this Note, the Eighth Circuit struck down the Montgomery Amendment as unconstitutional. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. at 78 (8th Cir. Dec. 6, 1988). Consequently, a split between the First and Eighth Circuits exists, and a writ of certiorari granted by the Supreme Court might provide an opportunity to address federal-state relations. 195. See National League of Cities v. Usery, 426 U.S. 833, 852 (1976). 196. See EEOC v. Wyoming, 460 U.S. 226, 240 (1983); FERC v. Mississippi, 456 U.S. 742, 765-66 (1982). 197. See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) (dismissing South Carolina's challenge to the Voting Rights Act of 1965 because it did not have standing to invoke the Article I Bill of Attainder Clause or the principle of separation of powers); Massachusetts v.

- 215 -

Mellon, 262 U.S. 447, 480, 483-86 (1923) (dismissing challenges to the constitutionality of the Maternity Act and noting that 'the State of Massachusetts presents no justiciable controversy either in its own behalf or as the representative of its citizens'). 198. See supra text accompanying note 20. 199. See supra notes 48-55, 61-71 and accompanying text. 200. See supra notes 125-28 and accompanying text. 201. See supra notes 140-41 and accompanying text. 202. Modern standing doctrine requires an 'injury in fact' and some causal nexus between the injury and the challenged action. Warth v. Seldin, 422 U.S. 490, 498-508 (1975). 203. See supra text accompanying note 20. 204. Perpich v. United States Dep't of Defense, 666 F. Supp. 1319 (D. Minn. 1987), rev'd, No. 87-5345, slip op. (8th Cir. Dec. 6, 1988). 205. Id. at 1323-24. 206. Id. at 1324. 207. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. (8th Cir. Dec. 6, 1988). 208. Id. at 66. 209. See supra notes 20-77 and accompanying text. 210. Just prior to publication of this Note, the Eighth Circuit vacated the decision in Perpich and granted a rehearing en banc. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. (8th Cir. Jan. 11, 1989). 211. Dukakis v. United States Dep't of Defense, 686 F. Supp. 30, 35 (D. Mass.), aff'd 859 F.2d 1066 (1st Cir. 1988). 212. Id. 213. Id. 214. See supra notes 75-79 and accompanying text. 215. Dukakis, 686 F. Supp. at 38. 216 Dukakis v. United States Dep't of Defense, 859 F.2d 1066, 1066 (1st Cir. 1988).

- 216 -

217. See supra notes 133-37 and accompanying text. 218. Professor Weiner characterized the federal recognition system as sharply curtailing '[t]he constitutional provision, 'reserving to the States . . . the Appointment of the Officers.'' Weiner, supra note 7, at 201 (quoting U.S. CONST. art. I, 8, cl. 16). A full discussion of this issue is beyond the scope of this Note, however. 219. Bickel, The Supreme Court 1960 Term Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 42-47 (1961). 220. One of the most recent major cases in which the political question doctrine was held to make a case non-justicable involved the Ohio National Guard. Gilligan v. Morgan, 413 U.S. 1 (1973). In Morgan, the Court concluded that federal courts could not decide cases brought against Ohio over the deaths of students at the Kent State riots. Id. at 10-11. The deference to Congress in matters of defensespecifically over the training and disciplining of troops acting to quell civil disturbanceswas the main justification. Id. It would have been interesting, for the purposes of this Note, had the Court reached the merits because the troops were not in federal service but on state duty. 221. The Supreme Court has stated that 'the constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is sweeping.' United States v. O'Brien, 391 U.S. 367, 377 (1968). When the action stems from 'congressional authority to raise and support armies and make rules and regulations for their governance' judicial deference is at its apogee. Rostker v. Goldberg, 453 U.S. 57, 70 (1981). 222. The Supreme Court has stated that 'it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.' Baker v. Carr, 369 U.S. 186, 211 (1962). Moreover, in general the courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing. Id. at 217; see also Bickel, supra text accompanying note 219. 223. Baker, 369 U.S. at 226 (1962). 224. Redish, Judicial Review and the Political Question, 79 NW. U.L. REV. 1031, 1059 (1985). Professor Redish states: That the states and the various branches can normally protect their own interests means only that the number of instances in which serious constitutional challenges . . . are presented will be relatively few. It does not mean that if and when they do arise, the Supreme Court should shirk its fundamental obligations as constitutional arbiter.

- 217 -

Id. 225. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 587-89 (1985) (O'Connor, J., dissenting). Additionally in a brief dissent in Garcia, then Associate Justice, now Chief Justice, Rehnquist predicated that Usery would rise again: '[T]he judgment in these cases should be affirmed, and I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court.' Id. at 580 (Rehnquist, J., dissenting). 226. See Wechsler, supra note 187. 227. The Court adopted this approach in Garcia: '[W]e are convinced that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the 'States as States' is one of process rather than one of result.' 469 U.S. at 554. 228. See P. BATOR, P. MISHKIN, D. SHAPIRO, & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 434-38 (2d ed. 1973) (noting that congressional elimination of the lower federal courts and removal of state court jurisdiction over federal questions would leave no judicial forum for vindication of individual rights and would raise serious due process problems). 229. This argument was made by the federal government in Perpich and rejected by the Eighth Circuit. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. at 67-68 (8th Cir. Dec. 6, 1988). 230. U.S. CONST. art. VI, 2. 231. See supra text accompanying note 20. 232. Cf. Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting). In Hall, Justice Rehnquist noted that when the Constitution is ambiguous or silent on a particular issue, this Court has often relied on notions of constitutional planthe implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers. Id. 233. During the mid-1980s the Reagan Administration saw increasing limitations on its ability to support the Contra forces in Nicaragua. See Intelligence Authorization Act for Fiscal Year 1984, Pub. L. No. 98-215, 108, 97 Stat. 1473, 1475; Act of Dec. 21, 1982, Pub.L. No. 97-377, 793, 93 Stat. 1830, 1865.

- 218 -

234. Lichter v. United States, 334 U.S. 742, 746 (1948) (upholding the Renegotiation Act's authorization for recovery of excess profits by private parties on subcontracts for war goods in time of war); Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) (upholding post-war rent controls); Yakus v. United States, 321 U.S. 414, 423 (1944) (upholding World War II price controls). 235. See supra text accompanying note 20. 236. Id. 237. See, e.g., Mela v. Callaway, 378 F. Supp. 25, 28 (S.D.N.Y. 1974) (noting that although the National Guard is 'something of a hybrid under both state and federal control, [it] is basically a state organization'). 238. See Derthick, Militia Lobby in the Missile AgeThe Politics of the National Guard, in CHANGING PATTERNS OF MILITARY POLITICS 192 (P. Huntington ed. 1982); cf. Binkin, supra note 92, at 36-37 (detailing the problems with relying on reserve capabilities). 239. See Bator, supra note 143, at 622. Professor Bator has suggested a similar role for the courts in their function as the line drawer between state and federal jurisdiction. Id. He argues that neither state nor federal courts will gain a monopoly over enforcement of constitutional principles, and therefore, the courts should exercise their stewardship over both institutions in a way that optimizes constitutional principles. Id. at 633-34.

- 219 -

EXHIBIT 17
New York State Division of Military and Naval Affairs Union Blue And Militia Gray: The Role Of The New York State Militia In The Civil War Chapter 1 Antecedents And Organization The militia forces of the United States have traditionally assumed three roles in the service of the nation and their respective states. They must first organize and prepare to conduct conventional military operations against any external threat. Internally, the militia trained to assist the appropriate authority to suppress riots, protests and other forms of civil disobedience. Lastly, the militia mobilized to control the effects of natural disasters and to assist their fellow citizens. In the era of the Civil War the militia of New York State performed all these duties besides shouldering the major burden of raising the main war-time combat forces. The militia owed its existence to conditions in the colonial period. The Revolutionary War militia had a very varied experience and in the Federalist period of the 1790s reforms were attempted to impose some degree of uniformity and efficiency for all militia forces in the United States. During his first term as president, George Washington relied on Secretary of War Henry Knox to prepare a comprehensive proposal for the national use of the militia. The final result was "An Act more effectively to provide for the National Defense by establishing Uniform Militia throughout the United States" on 8 May 1792. This law gave the militia whatever slight central direction it was to have for the next 111 years. It stated that all free able-bodied white men (blacks and women were excluded), aged 1845, owed military service to both state and nation. It directed the eligible males to furnish themselves with proper firearms and accoutrements. Certain categories of men were exempt from service and the law authorized the states to expand further their own list of exemptions. The law also directed that the militias were to be divided into brigades and regiments "if convenient" and provided for the existence of specialized infantry, including riflemen, light infantry and grenadiers. Volunteers within brigades filled the cavalry and artillery. [1] Each state maintained an adjutant general, the key person among each militia charged with upholding uniformity. He reported the condition of his forces once per year to the governor and the president. The act did create select corps but provided for the organizing, and training of all able-bodied men. Since they numbered in the vicinity of half a million, this provision proved unrealistic, made more so because there were no penalties for failure to comply. The act therefore included no sanctions against either states or individuals.

- 220 -

On 28 February 1795 Congress passed another statute vital to the future of the militia. It was entitled "An Act to Provide to call Forth the Militia to Execute the Laws of the Union, Suppress Insurrection and Repel Invasions." Upon invasion or its threat, it empowered the president to summon as many troops as he deemed necessary. Unlike the Uniform Militia Act, this law provided sanctions for failure to answer a summons from the president. The act confirmed long-standing custom in limiting the compulsory term of all militiamen in Federal service to three months in a year. [2] The crisis of the first decade of the 19th Century left behind the Act of April 1808 appropriating $200,000 annually for arming and organizing "the whole body of the militia of the United State s.. .by and on account of the United States." The assessment of the militia as well as its organization, thus theoretically became a Federal responsibility. Neither the constitutional nor the military consequences of this seemed important at the time, but these three acts provided the framework on which the militia and the war-time volunteers were to be raised and administered in the 1860s. [3] One of the popular ways of enforcing attendance at training periods was by means of fines. A man could plan beforehand for an absence and pay a sum for the privilege of so absenting himself. Placing fines and commutation fees and collecting them proved to be two very different matters. It seems that at no time within the period between 1846 and 1860 did the states succeed materially in collecting either. [4] In some states the fines were exceedingly high for non-attendance. In New York the fine amounted to twelve dollars, quite a sum for an average laborer. After the War of 1812 New York State sought to collect fines from militiamen who had dodged war service. State tribunals assessed fines of $200,000 against 4000 militiamen, but so indifferent was the public that collection costs exceeded income by $25,000. [5] Commutation funds from those who did not wish to serve came in easier. In 1850 New York collected over $41,000. [6] The availability, or lack of commutation funds for the support of the state militia became a cause celebre in the years before the Civil War. In his 1858 Annual Report of the Adjutant General, Brigadier General Frederick Townsend suggested: The system known as the commuting system, were it enforced in accordance with the spirit of the law, would, it can hardly be denied, provide a sufficient organization, from the burdens under which it is at present struggling. While it is not desired that the force should be wholly sustained from this system, like a necessary one, it is nevertheless consonant with reason and justice that men volunteering to perform a duty which all, with few exceptions, are required by the laws of Congress to discharge, should be at least assisted in some of their expenses, as for music, armory rent and horses for guns, by those who are thereby relieved of such duty. [7]

- 221 -

In financially strapped circumstances, commanders and staff officers at all levels in the militia forces came to espouse the commutation system for the support of their units. In the 15 April 1860 edition on the (State) Military Gazette, the editor exclaimed: The Legislature of 1846 reduced the commutation fee to fifty cents for nonperformance in hopes that the great bulk of eligibles would be glad to rid themselves of this duty at so small a loss while there would remain a sufficient number of citizens who from military zeal would go to the expense and trouble to become effective soldiers. After thirteen years however, this system was found to be a failure. [8] It is impossible to set an exact date for the beginning of the decline in interest in the militia but it is certain that the decline began many years before the Mexican War. The causes for it were many - lack of military necessity; rarity of drill days; expense and the commutation fees and fines. As the memory of the War of 1812 faded gradually from the public mind, the military spirit also declined. Militiamen in most cases only drilled on one day each year, and that usually in April or October. [9] In 1846 New York (and Connecticut) abolished compulsory service. Five other states did likewise in the coming decade. In place of the obligatory militia training, new laws provided for volunteer companies. Some states collected a small commutation fee in lieu of military duty and in New York this amounted to seventy-five cents. The money thus collected supported the volunteer independent corps. The Niles National Register became jubilant over the abolition of the compulsory militia law in New York: "We congratulate the people of this commonwealth warmly and heartily upon this emancipation from mock military duty. The Bill which cuts up the miserable system of militia oppression has become a law." [10] As the compulsory system of universal military training waned, volunteering waxed. In some people, the martial spirit combined with a love of colorful uniforms, ceremonials and martial music, was ever present. Affluent volunteers saw in volunteer units instruments by means of which they could defend what they owned. The wealthier among them joined the cavalry which was exclusive because it was expensive, while clerks and shopkeepers enrolled in grenadier, light infantry and other elite infantry companies. All volunteers had to be able to afford their affiliation: as much as $72 for the uniform, an initial investment in armament, and various levels of dues. [11] Despite costs, volunteer units proliferated and as these volunteers became the only reliable part of the militia system, the states began to offer them more support. Festivals would have been drab without the volunteer militia, the units of which were easy to involve in public appearances. They conducted target shoots and marched with much ceremony to visit neighboring units. The encampments occasioned by these visits involved themselves and the host communities in gargantuan feasts, much fancy drill and sham battles. The volunteer militiamen made themselves useful to state and local officials in maintaining law and order. They guarded prisoners to prevent lynchings and prisons where unpopular executions were being carried out, and they enforced quarantines. Riot duty formed an integral part of their service, for riots were endemic to the cities. During

- 222 -

the troubled election of 1834, the famous 7th Regiment of the New York State Militia stood under a hail of bricks and stones, but managed to withhold its fire. The following year, the city suffered a great fire and this regiment policed the streets to stem looting. When stevedores rampaged in 1836 the 7th helped to put them down, and at the height of the Panic of 1837, with the streets full of hungry people demanding food, the 7th took up its arms to protect property. [12] On 10 May 1849 the 7th Regiment assembled to put down the Astor Place Riots and this marked the first occasion in which militia forces fired into a crowd. On that date a mob of Irishmen attacked the New York City Opera House because a famous English actor was playing there. Before order was restored, the casualties totaled 22 killed and 36 wounded with the mob taking the greater punishment. [13] The city's Summer violence in 1857 had its roots in a legislative measure placing the municipal police under state control. The participants included discharged members of the municipal police, Irish and German immigrants and members of street gangs such as the Dead Rabbits, Blackbirds, Bowery Boys and the Roach Guards. Apart from gang rivalry, the anger of the mobs seemed to be directed against the new metropolitan police and the Sunday closing of grog shops. The 8th and 71st Regiments were called in over a period of two weeks to restore order in what had degenerated into guerrilla warfare. [14] A small howitzer captured from the Dead Rabbits gang by the 71st Regiment is on display at Camp Smith, New York to this day. To the military reformer, Emory Upton, writing in the 1870s, the Mexican War (1846-48) brought a revolution in the nation's military policy because it marked the effective end of the enrolled militia system as a serious reliance, even in theory, for major war, and the substitution of the volunteer principle that was thereafter generally to rule. The militia played little part in the struggle; with their three-month term and their constitutional protection against foreign service, they were of small help in a war of this character, while the great distances over which operations had to be conducted ruled out the large armies and mass mobilizations which the militia system was supposed to produce. Since volunteers poured out with adventurous enthusiasm in quite adequate numbers, the war could be safely left to them. Though summoned under Federal authority, they retained their state designations and their officers, when not elected by the men, were appointed by the governors. Congress decreed that they were to serve for "twelve months or until the end of the war." [15] In that conflict, New York provided two volunteer regiments. [16] With the successful conclusion of the Mexican War, steps were taken to foster the professionalism of the volunteer units comprising the state militia. As early as 1847 the adjutant general of New York suggested a complete reorganization because so many of the companies of both infantry and artillery had been reduced to small numbers. The reorganization was immediately effected and there was a continued change to larger units and less detail. [17] In 1848 the legislature acted to provide the adjutant general with $1,000, "or part thereof as needed" to furnish the commissioned officers with books is of tactics. [18] By 1848 New York had organized a corps of engineers and

- 223 -

brigade inspectors were appointed in 1849. The legislature enacted new militia laws in 1851; and in 1853 the laws were codified. [19] In 1849 the adjutant general declared that "the legislature of this state has enacted the best militia law of which any of the United States can boast." [20] In the latter 1850s the militia operated under the state Military Regulations, promulgated under General Order No. 30 on 6 April 1858. The governor, as commanderin-chief, supervised the whole military establishment in all its various departments. He maintained responsibility for ordering the various parades, encampments and drills of the militia forces, and to meet any special exigencies of the state. [21] The governor was assisted by a general staff of ten officers and their respective departments. The adjutant general (brigadier general) acted as the chief-of-staff to the commander-in-chief and he provided for the day to day administration of the militia forces. He also supervised the collection of commutation fees and fines and reported on an annual basis to the legislature on the state of the forces to include strength, weapons and equipment, and the readiness of the units He also prescribed programs of training and instruction. The Inspector General normally visited each unit and regimental district every two years to inspect all types of state military property and to report upon the qualifications of persons named to the governor for appointment to military offices. [22] All money and property accounts remained under the supervision of the inspector general until these disbursements were placed under the direct control of United States Officers in September and October 1861. He also audited claims and accounted for sums due to regiments or members of the militia for clothing and equipment lost or destroyed on active service. The Commissary General and his assistants were specifically charged with the preservation, issue and transport of arms, equipment and other military property belonging to the state. By 1862 however, this office was renamed the Commissary General for Ordnance, becoming responsible for arms and equipment. The Commissary General of Subsistence thereafter provided the troops with food. This administrative arrangement continued for the remainder of the Civil War and for some years thereafter. The Department of Engineers consisted of the Engineer-in-Chief, division engineers, brigade and regimental engineers, and one sergeant and nine sappers and miners to each regiment. Their duties consisted of reconnoitering and surveying for military purposes and for the superintending of defensive works, movement and operations of armies in the field and the laying-out of camp grounds. [23] The objective of the Quartermaster General's Department insured an efficient system of supply for the troops and provided transport for the movement and operations of the forces on active service. This department also provided fuel, straw and forage for encampments, and for the provision of tentage and camp equipage. Once hostilities

- 224 -

began, this department would shoulder the major burden in the raising of the volunteer forces. The Military Regulations of 1858 failed to discuss the Paymaster General's responsibilities since during peacetime the position was nominal. Although the Surgeon General's office had been in existence since 1818, the position was honorary and without any real duties. Upon the outbreak of war in April 1861 the office assumed several important additional responsibilities. Besides conducting physical examinations for recruits, qualifications for medical personnel had to be determined and certified. In addition, hospitals were established for sick and disabled soldiers in each of the receiving depots at Albany, New York City and Elmira, as well as the vaccination of soldiers prior to their departure for active service. Besides a Judge Advocate General to advise and act on legal matters, three aidesdecamp and a military secretary assisted the governor in administrative functions. The Military Regulations provided direction for officers on the conduct of operations and instruction in tactics. Guidance also provided for the administration of prisoners of war. Finally, detailed regulations prescribed the uniform and dress of the militia forces. Generally, uniforms followed closely those of the regular army of the United States except for insignia such as buttons, badges and cap devices, which bore the arms of New York State. Infantry regimental officers and men wore a dark blue frock coat, sky blue trousers and a rigid blue shako, all with branch piping and pompon. These regulations prescribed uniforms for those units of the militia which had not adopted their own regimental uniform approved by the commander-in-chief. [24] This provision (Para. 1544) allowed for the profusion of unique, distinctive and often gaudy dress worn by militia units in the early part of the war. The Regulations did provide for a fatigue uniform consisting of a jacket of cadet gray cloth, single breasted with standing collar, to extend from 5-6 inches below the waist, trimmed and faced with black. Trousers were to be sky-blue, as per the regular army, and the outfit was complemented by a cadet gray cap (kepi) with a band of black cloth and chin strap and flat visor of black leather. Numerous New York militia regiments went on active service in a form of this uniform between 1861-63, and it will be seen how closely this outfit resembled the regulation field uniform of the Confederate army. It must also be stressed that in accordance with their role as volunteers, militiamen were required to provide uniforms at their own expense. On 7 January 1862, Governor Edwin Morgan, in his Annual Message, reported that he was forwarding

- 225 -

.. .a carefully prepared report, the result of systematic inquiry and correspondence with the active military men of the State thru the Adjutant General and the Judge Advocate General. It proposes to retain the main features of the present Militia system; to abolish, with two exceptions, the elective system; to return to the method of enrollment prescribed by the Act of 1792, to require yearly drills and thus provide a well-trained nucleus in every locality, to limit the durations of commissions and to terminate, within a given period, those now in force, to require candidates to be examined and the enactment of a series of Articles of War, for the government of troops of the State in time of war, based on those in force in the Army. [25] The results of that inquiry and report later resulted in the passage of the new "Militia Law" by the legislature on 23 April 1862 and remained in effect throughout the remainder of the Civil War. It provided the direction upon which the state militia was administered and operated during this period. The act delineated persons subject to military duty and allowed exemptions. It also excused militia members from conscription for Federal active duty. It provided for division of the enrolled militia into two classes based on age, and still required an annual parade with a fine of one dollar assessed for non-attendance. Company strength was fixed at a minimum of 32 non-commissioned officers and privates and a maximum of 100, however the commander-in-chief received authorization in an emergency to draft men from the enrolled militia of the first class to achieve required strength. Members were still required to furnish their own uniforms. In a throwback to much earlier times, elections for officers were still retained. Companies elected their own officers and non-commissioned officers. Field grade officers and especially regimental staff stood for election whenever at least six uniformed companies could be assembled. Brigadier generals and brigade inspectors were elected within their brigade districts. The governor nominated all major generals and the commissary general, with the consent of the Senate. The Law of 1862 gave detailed instructions for the conduct of these elections and even provided for an appeals process. The commander-in-chief did reserve the right to appoint examining boards to determine the fitness and competence of any commissioned officers. Besides an annual parade for inspection to be held between May and November each year, the Law provided for six drills or parades per year by regiment or battalion and six monthly drills by each company. To foster training, a camp of instruction was ordered annually in each of the division districts, not to exceed ten days. Soldiers enlisted for a term of seven years during which they were exempted from jury duty and the payment of highway taxes. Each became eligible for a deduction in the assessment of any real or personal property in the amount of $500. Pay rates, in peacetime, ranged from one dollar per day for a private, to three dollars for a company commander, and up to eight dollars for a major general. In time of

- 226 -

war, militia members were entitled to the same pay, rations and allowances for clothing as established by law for the United States Army (Para. 173-174). Except for a few purchased privately, the small arms and accoutrements carried by New York units before 1861 were those that had been issued annually to the state by the general government. In common with other states, New York's supply of muskets, rifles and other weapons was inadequate, irregular and of generally poor quality. Such comments as "the arms of this company are not fit for use," or "the cavalry company is in want of carbines," or "there have been none of the new pattern muskets issued to any of the regiments of this brigade," fill the reports of all brigade inspectors as late as 1860. Deficiencies in accoutrements (belts, cartridge boxes, knapsacks, etc.) proved easily as great as in arms. [26] In his annual report on 2 February 1858, the adjutant general reported that: The State has stored in its various arsenals and in the hands of its troops a large number of exceedingly worthless weapons, a considerable portion of which have apparently come down from the War of 1812. It nevertheless owns a very considerable quantity of serviceable muskets of quite recent patterns, altered from flint to percussion, and also a large quantity which have been rendered unserviceable simply by the careless manner in which they have been altered. [27] The 7th Regiment, the crack regiment in the state, possessed influence and wealth beyond the dreams of other corps and probably was the best armed regiment in New York City; at least all its members paraded with the same model weapon. Yet the 7th carried flintlock muskets until October 1854, when they were exchanged for "very inferior conversions." The regiment had purchased its own cartridge boxes and white buff leather belts (these boxes were the first to carry the cipher "NG") and in January 1855 adopted and wore percussion cap pouches for the first time. In November 1858 new Springfield Model 1855 Rifle-Muskets, with the Maynard Priming System, were issued, but only after "a long and vigorous effort." In fact, the regiment sent a committee to Washington DC, armed with letters from prominent New Yorkers, and accompanied by Senator William H. Seward to see Secretary of War John B. Floyd and demand rifles "in the most earnest and peremptory manner." Only the 7th could have accomplished this piece of effrontery. Contrast this record with that of the 9th Regiment which had been completely reorganized in 1859. In 1861 - one month before the outbreak of the Civil War - its adjutant was forced to write the adjutant general: Dear Sir: I had the honor of addressing you about a month ago on the subject of a stand of arms for the 9th Regt. to which communication I am not in receipt of any reply. In that letter I represented to you the utterly useless character of the arms that we have - worn, broken, & in many instances incapable of repair - And in addition - we have no less than four varieties of musket amongst our five companies - & if we were called into service would require four different kinds of sizes of cartridge. When we were organized in August 1859 we were promised by Genl. Townsend a new stand of arms out

- 227 -

of the quota of 1860 - that came - was distributed & we were put off to the quota of 1861. That quota has, it seems, been distributed, & the 9th Regt. neglected again. [28] Most of the regiments stood somewhere between the 7th and 9th. On 2 January 1861 the Military Gazette, reporting on the "Necessity of Arms," described how the 12th Regiment, commanded by Colonel Daniel Butterfield, went to Staten Island for target practice during the previous Autumn. Some of the companies had only ten or a dozen muskets that could be fired, and each company used them in rotation. The 2nd Regiment reportedly leased weapons from arms dealers on the occasion of its parades. [29] On 7 January 1862, Governor Morgan, in his annual message to the legislature, declared: It was obvious that our Militia was in no condition either as respected discipline or equipment for imminent duty. Among other things it was shown that the great body of the organized Militia was unsupplied with reliable arms. I especially referred to that existing deficiency in the military stores, which I recommended to the Legislature to take early measures to supply, urging that in order to be prepared for any emergency, a suitable appropriation should be made from the Treasury and placed at the discretion of the Military Department. The final consideration of this subject did not take place until 12 April 1861 when a bill passed appropriating $500,000 for the purpose of arming the Militia and providing for the public defense. There have been purchased in Europe, under this Act, 10,000 PI 853 Enfield Rifle-Muskets, of which about 6,000 have been delivered to New York. [30] The 1858 returns for weapons on hand indicated a total of 123 howitzers and cannon of all calibers. Of that number, 98 were of the brass six-pounder variety often assigned to the artillery batteries of infantry regiments. Fortunately, the artillery maintained an excellent reputation. [31] During the antebellum period, very few of the militia companies had quarters of their own of any kind. Most companies rented meeting rooms in taverns and hotels, on the upper floors of stables, and in Masonic halls arid Odd Fellows meeting houses. For company parties, regimental balls, and other festivities, the volunteers hired theatres and music halls. In mild weather, the militia drilled on the Washington Square parade ground in New York City, and on other large open spaces. When it turned cold, the infantry units rented the so-called "long rooms" in local taverns, many of which were not big enough for company drills, much less for regimental maneuvers. The cavalry units leased nearby riding academies. Not only were these quarters unimposing, but, as a result of periodic fires and changes in ownership, they often proved temporary as well. [32] The effect these conditions had on training and combat readiness can only be imagined. It became plain that taverns, hotels and quasi-public halls were not suitable places to store arms and ammunition. Volunteers feared that their units would not thrive unless they acquired their own quarters. Once the volunteer militia became involved in suppressing civil disorder, they needed permanent quarters to serve as rallying points,

- 228 -

where the militia could assemble in an emergency, dress, arm themselves and prepare to move out. [33] The volunteer militia appealed to their local communities, a few of which were willing to accommodate them. In the 1830s several militia units obtained the use of three large rooms on the second floor of the recently constructed public market on Centre Street. By the Civil War, the 6th, 8th, 11th, and 71st Regiments shared the Centre Markets drill rooms. [34] Beginning in 1858 Brooklyn's 13th Regiment met in the fourstory Henry Street Armory along with several of the city's other military units. Brooklyn's 14th Regiment had to share the armory and Fireman's Hall with the fire commissioner, chief engineer and other officials of the fire department. In 1860 the 7th Regiment moved into its new quarters in the Tompkins Market building where they occupied the second and third floors of the armory, which consisted of eleven company rooms, a band room, two company drill rooms and a regimental drill hall that the New York Times called the "handsomest and largest" in the United States. The first floor, however, was a public market, crammed with butchers, green-grocers, fishmongers and other shopkeepers. [35] In February 1863 the city supervisors passed a resolution agreeing to pay $4000 per year rent for land for an armory for the 22nd Regiment. First constructed was a onestory building, fifty-feet wide on 14th Street and afterward used as a gymnasium. The regiment constructed, at its own expense, a two-story building with a tower for company rooms and a regimental headquarters. This building cost $20,000. Company A used the last room on the ground floor, and spent $250 to fix it up. There were, however, no provisions for lighting the open lots surrounding the initial building and drills were therefore held in that structure. [36] The continued need for drill halls, armories and other expanded quarters led the state inspector general to later recommend enlarging the annual allowance for the rental fee for each company drill hall from $250 to $500 per year. [37] Equally important for the storage of arms and equipment were the state arsenals. By far, the most important one was located in New York City until 1859 at 5th Avenue and 64th Street. In that year, a new and larger arsenal opened at 7th Avenue and 35th Street. [38] This building became the principal storehouse for ordnance, and was the headquarters of the commissary general. Arsenals were also located in Brooklyn, Buffalo, Rochester, Auburn, Syracuse and Utica, and smaller repositories were constructed in Kingston, Corning, Dunkirk and Batavia. All these structures were procured in the late 1850s. Their maintenance and upkeep, however, varied considerably, and storage facilities were considered inadequate except in New York City. Conditions became so bad that the inspector general, after a series of inspection visits, recommended the consolidation of all surplus weapons at the main arsenal in New York. He explained that many of the roofs were leaking and much durable equipment consequently ruined. [39] Ranking first in population and wealth among the states of the Union at this period, New York maintained the nation's largest and most carefully organized state army. In 1850 the New York State Militia contained 51 active uniformed regiments and a

- 229 -

number of independent companies. By that time the state had completely eliminated its enrolled militia structure, and by a wide and radical reorganization in 1846-48 forced hundreds of hitherto independent companies into regimental groupings. [40] By 1858 the militia forces had increased to 67 regiments assigned to 28 brigades assembled into 8 divisions. The composite strength was 16,434 officers and men. Additionally, there were 36 general officers to command this force. [41] By January 1861 this total had risen to 19,189. [42] The administration of this force required a command and staff of 532 officers, including, for example, an inspector general and 32 division and brigade inspectors. The regiments of New York numbered until 1865 in a single series that included all branches. They varied considerably in strength and effectiveness; those in the First Division in Manhattan had, as a rule, from six to ten active companies, while some regiments located in predominately rural areas were little better than paper organizations. A New York regiment of the 1850s consisted on paper of eight battalion companies (lettered A through H after 1857). By 1860 some regiments had begun to letter their companies A through K, omitting J. Except for four (1st, 3rd, 4th and 70th) all the regiments served as infantry of some sort, although tradition, armament and the kind of drill manual employed indicated seeming variation. Thus one finds regiments described in the annual adjutant general's reports of the 1860s as "Rifles doing duty as Light Infantry" or "Artillery doing duty as infantry" or merely "Artillery" only to discover that they were all essentially in the same branch of service. By further complication, these infantry regiments often contained one or more companies (and not always the elite flank companies) of a different branch than the others. Thus the 8th Regiment (Washington Grays) had eight infantry companies and one of cavalry. These variations were, of course, holdovers from the days of the independent company, and they tended to multiply the kinds of uniforms and armament in a single regiment. [43] The 20th Regiment (Ulster Guard) is fairly typical of a regiment raised outside a large city. This unit is the oldest military organization in New York State with a continuous history. It traces its lineage to the "Trainband of Wiltwick" which was raised in Kingston in 1660. (It still survives as the 1st Battalion, 156th Field Artillery Regiment, New York Army National Guard.) Ulster and Sullivan counties were designated as the regimental district and by April 1861 eight companies were in existence. Of that number, each attempted some degree of individuality by adopting company titles. One infantry company (G) was composed of Germans as was the "Jefferson Dragoons." Company R ("Lexington Artillery") performed regular infantry duty. On 1 March 1858 the regiment received orders to perform as light Infantry using William J. Hardee's Rifle and Light Infantry Tactics manual, but it continued to function as line infantry using Winfield

- 230 -

Scott's obsolete Infantry Tactics. The regimental or brigade commander decided when the regiment would perform the duties of one or the other. [44] New York regiments deviated widely in such characteristics as wealth, traditions and national origins. At the top, the crack 7th Regiment (National Guard) recruited conservative, affluent Protestants, The older corps tended to be native-American in composition and many took their membership from the wealthier classes of society. Regiments more recently formed, especially in New York City, were often heavily or completely foreign in personnel, language and institutions. William H. Russell, correspondent of the London Times, visited the 12th Regiment (Independence Guard) in its camp in Washington DC following the outbreak of the war. He examined some statistics compiled by Colonel Butterfield, and discovered that of twelve soldiers, selected at random, that only two were native-born Americans. The rest were Irish, German, English or generally European-born. [45] Fraternalism is understandable among immigrant groups but in one instance a deeper purpose was involved: during the 1850s distinct New York regiments were raised to specifically train Irishmen as soldiers so they could fight for Irish freedom. Both the 9th and 69th Regiments fell into this category. The 9th was organized in New York City on 29 May 1850, and marched in its first St. Patrick's Day Parade the following year. Many people believed that the bulk of this unit were Irish rebels disguised and organized into a secret society known as the "Silent Friends." [46] The New York Herald later suggested "that the Irish are organizing a Party to oppose the Know-Nothings (Native American Party). It would be a great mistake to form such a party to foist their views on the country and it might give power to the Know-Nothings for a whole generation." [47] The "Green Coated Rabble" and the "Irish Mob" became popular nicknames of derision for these Irish units [48] and Colonel Michael Corcoran of the 69th Regiment was widely believed to be a member of the Fenian Brotherhood, actively engaged in raising funds to counteract such discrimination. On 6 October 1860 the 69th Regiment held a mass meeting to protest the visit of Britain's Prince of Wales, and resolved not to parade the following day or at any other time before this personage. The press directed considerable vehemence at the regiment over this incident. Colonel Corcoran was formally charged with dereliction of duty, and his court-martial opened on 20 December at the divisional armory at Elm and White Streets. Corcoran based his defense on the fact that the regiment had already served its annual quota of drills and therefore could not parade. The public showed a great deal of interest in his case until the outbreak of hostilities on 12 April 1861, and on that day formal orders were promptly issued releasing Corcoran from arrest and restoring him to command. More important matters had fortuitously intervened. [49] A movement had been initiated in the late 1850s to amalgamate these two regiments and thus lessen their political impact, however by 1860 both units continued to thrive. The Military Gazette had this to say of the 9th Regiments Company C at artillery practice:

- 231 -

The "City Guard" is composed of young men of the best families but they were thought to be rather too slim and too nice to manage barrette and casemate guns. But Captain Lovell has shown that his young men are of the right kind and not too weak and effeminate for the service of heavy artillery. [50] Many Americans, in and out of the militia, resented and feared the rapidly growing influence of these foreign soldiers. Workmen and mechanics feared the loss of their jobs to immigrants willing to work for much lower wages. Of the nineteen regiments of all branches of the service in Manhattan and Brooklyn, at least seven were predominately foreign in personnel, while several of the others contained a sizeable number of foreigners. The so-called Native American movement held great appeal, and in the 1850s this movement reached its peak with the organization of the American or Know-Nothing Party. Plans to raise a regiment composed only of native-born Americans resulted in the four original companies of the 71st Regiment (American Guard) in October 1850, Being chiefly men of the mechanic class, they avoided the conservative gray uniforms of the 7th and 8th Regiments, and opted for the more modern dark blue frock coat. [51] The 71st continued to maintain its reputation as an "American Regiment." When several foreigners attempted to enlist, great dissension ensued. A mass meeting was held in protest, and the regimental commander, Colonel Abram Vosburgh, attempted to defuse the situation by assuring the members of the unit of his determination to maintain the nationality of the regiment. [52] Despite an intense rivalry, common duty forced the 69th and 71st Regiments to serve together. In October 1858 the 71st relieved the 69th on garrison duty at the immigrant "Quarantine Camp" on Staten Island. [53] Change for the better occurred in June 1861. While garrisoning Washington D.C., the 69th Regiment marched en masse in the funeral cortege of the 71st's Colonel Vosburgh who had died following the fall from a train on 30 May. That gesture helped to heal their mutually bad relations, and ushered in a new era of good will. [54] Chapter One Footnotes 1. John K. Mahon, History of the Militia and the National Guard (New York: Macmillan Publishing Company, 1983), 5. 2. 3. Ibid., 53. Walter Millis, Arms and Men (New York: G.P. Putnam's Sons, 1956), 65.

4. Paul Tincher Smith, "Militia in the United States from 1846 to 1860" Citizen Soldiers: A History of the Army National Guard (Fort Leavenworth, KS: Combat Studies Institute, US Army Command & General Staff College, 1989), 152. 5. 6. Mahon, History of Militia, 81. Smith, "Militia 1846-1860," 152.

- 232 -

7. New York State, Annual Report of the Adjutant General (Albany, NY: 1858), 26. Besides rosters of personnel, these reports contain after-action reports for units on active service. The annual reports also contain recommendations by the incumbents for the reorganization and improvement of the militia forces. Hereinafter cited as: AG. 8. G.G. Stone, ed., (State) Military Gazette 15 April 1860, 115. This journal contains much valuable information for the four years (1858-1861) during which it was published. In the first year it was published in Albany, and thereafter in New York City. It was the only publication of its kind on the militia forces in the nation. 9. Smith, "Militia 1846-1860;' 134.

10. Lena London, "The Militia Fine 1830-1860," Citizen Soldiers: A History of the Army National Guard (Fort Leavenworth, KS: Combat Studies Institute, US Army Command & General Staff College, 1989), 127. 11. 12. 13. Mahon, History of Militia, 83. Ibid., 85. Hill, Minute Man, 41.

14. Kenneth M. Stampp, America in 1857, (New York: Oxford University Press, 1990), 209. 15. Millis, Arms and Men, 105.

16. Hill, Minute Men, 24. 17. 18. 19. 20. Smith, "Militia 1846-1860," 145. AG, 1859, 562. Smith, "Militia 1846-1860," 156. AG, 1859,459.

21. New York State, Military Regulations (Albany, NY: Adjutant General's Office, 1858), 6. 22. 23. Ibid., 142. Ibid., 147.

24. Ibid., 212.

- 233 -

25. New York State, Messages from the Governor to the Legislature, Charles F. Lincoln, ed. (Albany NY:J.B. Lyon & Co., 1909), V: 383. 26. Frederick Todd, Military Equipage 1851-1872 (Providence, RI: Company of Military Historians, 1977), 1026. In this multi- volume work, Todd describes the full range of clothing, equipment and weapons utilized by the regular, volunteer and state forces of both armies. He also provides detailed information on the organizations of the various forces and also useful references on maritime (naval and marine corps) subjects. This work has become the definitive work on this wide-ranging subject. 27. AG, 1858, 9. 28. 29. Todd, Military Equipage, 1026. Military Gazette, 2 January 1861.

30. Governor's Messages, 1 January 1862, 392. 31. AG, 1858,6.

32. Robert M. Fogelson, America's Armories (Cambridge, MA: Howard University Press, 1989), 8. 33. 34. 35. Ibid., 9. Ibid., 10. Ibid., 11.

36. History of Company A and the 22nd Regiment NGNY (New York: Styles & Cash, 1897), 28. 37. New York State, Inspector-General's Report (Albany, NY: C. Wendell, Legislative Printer, 1865), 21. Hereinafter cited as: IG. 38. 39. 40. 41. 42. Todd, Military Equipage, 1026. IG, 1864, 35. Todd, Military Equipage, 1007. AG, 1858, 5. AG, 1862,30.

- 234 -

43.

Todd, Military Equipage, 1008.

44. Seward R. Osborne, "20th New York State Militia: The Early Years," Military Collector & Historian, Vol. XXXVIII, No. 2 (Summer 1986), 71. 45. 143. 46. Daniel P. O'Flaherty, "History of the 69th Regiment N.Y.S.M." (Ph.D. diss., University of Michigan, 1966), 13. 47. 48. 49. 50. New York Herald, 4 December 1855. O'Flaherty, "History of 69th," 164. Ibid., 200,208,216. Military Gazette, 16 May 1860. William H. Russell, My Diary, North and South (New York: n.p. 1863),

51. John P. Severin and Frederick P. Todd, "71st Regiment, New York State Militia 1857-1861," Long Endure 1852-1867 (Novato, CA: Presidio Press, 1982), 20. 52. Henry Whittemore, History of the 71st Regiment N.G.S.N. Y. (New York: Willis McDonald & Co., 1886), 25. 53. Ibid., 21.

54. Ibid., 249. New York State Division of Military and Naval Affairs: Military History Last modified: April 6, 2006 URL: http://www.dmna.state.ny.us/historic/reghist/civil/UnionBlue/UnionBlueChap1.htm

- 235 -

EXHIBIT 18
New York State Division of Military and Naval Affairs Union Blue And Militia Gray: The Role Of The New York State Militia In The Civil War Chapter 2 1861: Active Service By the turn of the year 1861 genuine public anger exploded as news came in during January of states seceding and the seizure of government forts, arsenals and other property. In this atmosphere, the Board of Officers of the 7th Regiment met on 14 January to discuss the situation. It was resolved to offer the services of the regiment should exigencies arise. Brevet Lieutenant General Winfield Scott, the army's general-inchief, courteously turned down the offer three days later in a letter to Governor Edwin Morgan. Two weeks later, however, another scare, caused by the counting of the electoral votes in the recent presidential election, prompted Major General Charles Sandford, commanding the First Division in Manhattan, to assemble the officers of the regiment to brief them on Governor Morgan's plan to dispatch eight hundred militia to Washington D.C. should the need arise. [1] The fall of Fort Sumter, on 12 April, removed all uncertainty and the involvement of the state militia began as soon as President Lincoln's proclamation, calling for the mobilization of 75,000 troops, was announced on 15 April. In Albany the legislature was still in session and it acted promptly to create a State Military Board composed of the governor, lieutenant-governor, the secretary of state, the comptroller, the state engineer and the state treasurer. The board acted to accept into service of the state, in addition to and as part of its militia, 32,000 volunteers for two year enlistments. That operation, however, would take time, and Governor Morgan now had to decide how best to carryout the president's immediate requirement for seventeen militia regiments from New York. [2] On 16 April the legislature passed that act, entitled "An Act to Authorize the Embodying and Equipment of a Volunteer Militia and to provide for the Public Defense." In this first increment, only eleven regiments of the state militia mobilized with an aggregate total of 7,334 officers and men. [3] Some weighty problems presented themselves to the board, since only two militia organizations (the 5th and 7th Regiments) were ready to march. The remaining units were generally insufficiently uniformed and equipped. The 69th, scheduled to depart on 23 April, for example, had only 380 uniforms for 1,050 men. [4] Even the 7th Regiment required assistance, and on 17 April the merchants of New York City met in their Chamber of Commerce, where thirty-one gentlemen each pledged $100 for the "equipment of the Regiment for active service." At this meeting, the New York Stock Exchange also contributed $1000. The designated militia regiments (see Appendix #1)

- 236 -

were gripped by great excitement. Regiments turned away significant numbers of willing recruits as the war fever overwhelmed the city, already dazzled by a number of mass patriotic rallies. [5] Colonel Marshall Lefferts of the 7th Regiment directed his unit's departure for 19 April following a requisition for additional camp equipage, baggage and sufficient ammunition to furnish each man with twenty-four rounds. [6] The regiment's marching orders required each man to assemble in full gray fatigue uniform and sky-blue greatcoat with knapsack with one rolled blanket. Each soldier carried suitable underwear, an extra pair of boots, mess utensils, waist belt and cap pouch. All ranks provided themselves with one day's rations. [7] In one of its first official duties, the veterans of the 7th Regiment, the forerunners of the State Home Guard Force, assembled to guard their armory in the regiment's absence. On 18 April the 6th Massachusetts Regiment arrived in the city and breakfasted at the Astor House en route to Washington. Also on that day, the U.S. S. Baltic arrived in New York Harbor bearing Major Robert Anderson and his paroled Fort Sumter garrison. On 19 April the 8th Massachusetts Regiment marched through the city accompanied by Benjamin F. Butler, brigadier general of all Massachusetts troops. At about 3:00 P.M. startling news arrived from Baltimore that the 6th Massachusetts had been attacked by a pro-Southern mob in that city. The regiment sustained some casualties and had to fight its way across town to the railroad depot. That afternoon, to tumultuous acclaim, the dandy 7th Regiment marched down Broadway, to embark at the ferry slip for Jersey City and the first leg of its journey to Washington. The 7th boarded a train for Camden, New Jersey where, on 20 April, it was ferried across the Delaware River to Philadelphia. Two weighty problems now presented themselves. Mindful of the recent riots in Baltimore, Lefferts began to explore alternate routes to Washington to avoid that trouble spot. He eventually decided to avoid the overland route by boarding the steamer Boston which would carry the unit to Annapolis, Maryland. Lefferts considered it prudent not to sail any further south since Confederate naval forces threatened the Potomac River. At Philadelphia a bitter feud erupted between Lefferts and Butler, The general was a brilliant, highly talented attorney, but his career was marked by a series of quarrels and wrangling's due to his aggressive manner and obstinacy. Butler believed that under the Articles of War, the senior officer present should command when two or more units of troops occupied the same location. However, neither the 8th Massachusetts nor the 7th New York Regiments had been mustered into Federal service. They still operated under the orders of the governors of their respective states and therefore they could with justification disregard orders from higher ranking officers on their way to Washington. [8] Lefferts resolved to maintain his own independence. Arriving at Annapolis on 23 April, the regiment bivouacked on the grounds of the Naval Academy. Lefferts had

- 237 -

already used his own funds and credit to purchase supplies and charter the steamer. Having discovered that local pro-Southern sympathizers had torn up the rails and bridges on the proposed route, Lefferts planned to march his regiment the forty miles to Annapolis Junction, where it could board a train for the last leg of the journey to Washington. Just before leaving, they cheered the arrival of the Baltic and several other vessels at Annapolis, carrying the 6th, 12th and 71st Regiments. With reinforcements not far behind, the march could proceed. [9] The 7th pushed forward with the thermometer above 90 degrees. The heat had great effect upon the young and inexperienced soldiers, already debilitated by confinement on the steamer Boston, by the change of diet, and by the lack of rest. [10] Meanwhile in Washington, General Scott managed to assemble a motley array of government clerks, laborers, foreign residents and even War of 1812 veterans, plus a few companies of regulars, to hold off any enemy attack. The 6th Massachusetts had arrived at the capital with some Pennsylvania militia, but it was the arrival of the 7th at the railroad depot that electrified the city. Having been ordered to report to the president, Colonel Lefferts paraded his regiment down Pennsylvania Avenue where they were reviewed at the White House by the chief executive and an admiring group of cabinet members and an enthusiastic crowd. On Friday afternoon, 26 April, the regiment formally mustered into the service of the United States by Major Irvin McDowell, soon to be a brigadier general of volunteers. The regulations for mustering into Federal service had been issued in 1848 and covered in precise detail the entire procedure for making up muster rolls, interview of candidates, inspection and enumeration of companies, and administration of the oath. Although the troops called for under the president's proclamation were supposed to be mustered for three months, the 7th received special consideration since they departed for Washington immediately upon notification. Because of the special urgency of the situation, the entire regiment had dropped everything, with little or no opportunity to arrange personal affairs. Members anticipated that they would serve for one month until their place could be taken by other volunteer units. [11] Even so, a number of their members left by early May to accept commissions elsewhere. First Lieutenant Noah Farnham of the Second Company accepted the post of lieutenant-colonel in the 11th New York Volunteers (Fire Zouaves). Schuyler Hamilton, who had served as aide-de-camp to General Scott in the Mexican War, and was currently a private in the Sixth Company, was again appointed military secretary to that officer on 9 May. After their arrival, the New York regiments quartered themselves in various government installations around the city. The 7th shared accommodations with the 6th Massachusetts at the capitol building, and the 25th Regiment (from Albany) under Colonel Michael Bryan occupied the Casparis House, following its arrival on 29 April. The 71st Regiment guarded the Washington Navy Yard where it spent its time in drill and other training. Colonel Butterfield's 12th Regiment garrisoned the Assembly Rooms, and in their spare time marveled at the inventions on display at the nearby Patent Office. [12]

- 238 -

The 69th Regiment initially engaged in guarding the railroad between Annapolis and Annapolis Junction where they made a favorable impression on the local populace. Following their arrival in Washington, Scott sent ten West Point cadets to drill the regiment at their bivouac on the campus of George Washington University in Georgetown. [13] They mustered-in as a three-month regiment on 9 May. Sixteen soldiers refused to be mustered, and were ceremonially drummed out of camp. Most of their members were laborers or mechanics, and their families suffered in their absence. A family fund for their relief had collected $1,663 by 13 May. [14] The 79th Regiment, a unit claiming Scottish heritage and commanded by James Cameron, brother of the secretary of war, received a beautiful silk regimental color from the Union Relief Committee on 30 April, prior to its departure from New York. After their arrival in Washington, they cheerfully went into bivouac where they were plagued by frequent alarms in camp, nervous sentries and boisterous officers. [15] The 9th Regiment had been furnished knapsacks, blankets, equipment and uniforms. On 22 May their 840 members paraded down Broadway, fully equipped, but without weapons. Fortunately, they were not molested en route through Baltimore, and they arrived in Washington on 30 May where they marched to the Federal arsenal to receive Harper's Ferry model muskets. [16] The 20th Regiment had volunteered for three month's service in the first quota of eleven regiments. Four local banks had offered to put up a total of $8,000, since that unit was so deficient in equipment. [17] They left Kingston on 28 April aboard the steamer Manhattan, and arrived in Baltimore where they formed part of the garrison to calm secessionist tendencies. On 16 April, Morgan established 38 new regiments of war-time volunteers for two years. Raised by recruiting throughout the state, these two-year regiments mustered into service by the Federal government, at which time their character changed from militia to "Volunteers." These infantry regiments, numbered in a new sequence commencing with "1st," began the volunteer series that totaled 194 numbers in the end. The resultant duplication of regimental numbers between militia and volunteers caused some confusion and much vexation, especially in those pre-war militia regiments that were forced to give up their old designations when they volunteered for three-year service. [18] The following chapter will describe the raising of the war-time volunteers, however it is now appropriate to explain this idiosyncrasy since a number of the new volunteer units were beginning to arrive in Washington. For purposes of this study, oldstyle embodied units will be referred to as "Militia" (and after April 1862 as National Guard), while the new war-time raised units will bear the designation "Volunteers." Thus, for example, the 8th New York Militia served alongside the 8th New York Volunteers at First Bull Run. The confusion that situation caused can be easily imagined. [19] On 21 May, Major General Charles Sandford arrived in Washington with his staff. He reported immediately to the president and General Scott, and by general orders of the following day accepted command of all militia and volunteer regiments from New York State. [20] Some thought had been given to bestowing overall command of Union

- 239 -

forces in Washington and Virginia on Sandford, but he was disqualified because of his status as a militia general. An attorney in civilian life, he had been commissioned in 1837, and devoted most of his attention and spare time to the state militia. As commander of the First Division troops in Manhattan, he held an important position, and we shall encounter him repeatedly throughout the Civil War years. To provide greater protection of the capital, General Scott decided to occupy Alexandria, Virginia and the southern approaches to the city. Sandford described this operation in his after-action report: I accompanied the center column which crossed the Potomac by the Long Bridge on the morning of the 24th instant assuming the command of the troops on the Virginia side. On the right, the 69th New York State Militia (N.Y.S.M.), which crossed the Potomac Aqueduct, was posted near the canal culvert. The other two regiments of that wing (the 28th N.Y.S.M. and the 5th N.Y.S.M.) were thrown forward on the road to Leesburg, about two miles from the river. In the center, the 7th N.Y.S.M. was placed at the head of the Long Bridge. The 25th N.Y.S.M. was posted at the toll-gate and Vose's Hill, on the Columbia Turnpike. Three regiments of the New Jersey Brigade, under Brigadier-General Runyon, together with the 12th N.Y.S.M., occupied the Alexandria road as far as Four-Mile Run; the pickets of the 12th extending as far as the point where the canal crosses the Alexandria Road. The left wing, consisting of the 11th New York Volunteer sand the 1st Michigan Regiment, occupied the city of Alexandria, supported by the U.S. steamer Pawnee. [21] Having pushed a short distance into the countryside to give themselves some room to maneuver, the troops immediately began to entrench. The 69th set to work with such enthusiasm that by 1 June they had constructed a major fortification which they named Fort Corcoran after their colonel. [22] The movement into Virginia was claimed a great success and Colonel Samuel Heintzelman, inspector general of the Department of Northeastern Virginia, claimed that the "movement had been made so quietly, that the troops had stacked arms an hour before the inhabitants were aware that we had crossed the river. The rebel troops occupying Alexandria, some 700 infantry, had received notice of our coming and escaped on the Orange and Alexandria Railway, burning the bridges behind them." [23] The only unfortunate incident of the operation occurred when Colonel Elmer Ellsworth of the 11th New York Volunteers (Fire Zouaves), was shot by the proprietor of a hotel in Alexandria when Ellsworth attempted to take down a Confederate flag flying over the building. Sandford occupied Arlington, and with it the Custis-Lee mansion overlooking the Potomac. It was at that time the residence of Robert E. Lee of the Virginia state forces, and a brigadier in the new Confederate army. Sandford made the home his headquarters in order to protect it from possible vandalism. [24] By 28 May, Irvin McDowell took command of the new Federal Army of Northeastern Virginia, and began his preliminary planning of operations (see Appendix

- 240 -

#2, Order of Battle). He soon came under intense political and public pressure to mount a major offensive toward Richmond, the Confederate capital Claiming a shortage of supplies, and especially a lack of training and organization for his amateur troops, he attempted to resist these pressures as long as possible to gain the maximum amount of time to turn his 35,000 man force into an effective and cohesive force. No one in the army had ever managed such a large body of troops, certainly no one with McDowell, and even Scott had never commanded such a large force in the field. [25] On 19 April Major General Robert Patterson of the regular army had received command of the new Department of Pennsylvania. He soon moved his headquarters to Chambersburg where he began organizing a force for the invasion of Virginia. After an advance across the Potomac River to Martinsburg, at the northern end of the Shenandoah Valley, he sent urgent requests to Scott for reinforcements. [26] Patterson received directions to take such steps as necessary to prevent Confederate General Joseph Johnston, who commanded in the Shenandoah, from reinforcing Brig. Gen. P.G.T. Beauregard at Manassas in northeastern Virginia. On 15 June Johnston evacuated Harper's Ferry, and fell back to a position north of Winchester. After some skirmishing with Confederate forces, Patterson settled down again at Martinsburg to await developments. On 7 July, perhaps to ensure that a "good account" did come out of the Shenandoah, Scott sent Sandford with two New York militia regiments (5th and 12th) to assist. The 19th and 28th New York Volunteers had already arrived and Sandford assumed command of the 3rd Division (7th and 8th Brigades) under Patterson. [27] The 9th Militia Regiment had arrived earlier after being mustered-in on 8 June for three years service. Sandford formally reviewed the various New York State units at Harper's Ferry. Owing to the variety of uniforms, all troops received a strip of white cloth to be worn as a recognition symbol on their left sleeve, and to serve as a bandage in case of wounds. [28] By 15 July Patterson had advanced to Bunker Hill, but the next day, instead of turning toward Johnston at Winchester, he moved west and marched to Charlestown, Virginia, leaving Johnston free to leave the Valley and reinforce Beauregard's Confederate army. Johnston arrived at Manassas in time to participate in the battle there on 21 July. Sandford had been briefed earlier by Secretary of State Seward on the possibility of succeeding Patterson should that officer prove too slow and hesitant in engaging Johnston. Yet Patterson let slip this opportunity, and he was relieved from duty on 25 July. Sandford, who had had considerable excitement during this period, relinquished command on 29 July at his own request, and returned to his post at Washington where he continued until the expiration of his term of service on 15 August. He then returned to New York to resume command of the First Division. [29] McDowell finally got his army on the move on 16 July toward Manassas. The historian of the 79th Militia Regiment was later to describe their progress: At 2:00 P.M. in "light marching order" the march began; our knapsacks containing our uniform jackets and tartan pants, as well as other extras, having been packed and left in camp. Light marching order consisted of arms and accoutrements

- 241 -

while our blankets with a single change of underwear rolled therein were slung over the shoulders. There was considerable straggling and aides were dispatched up and down the column to enforce discipline. [30] Their corps of engineers, uniformed in reddish gray flannel blouses, led the 69th Militia Regiment. Ten drummers, the oldest being twenty and the youngest only eight, provided the music with three fifers. The regiment moved down the Columbia Turnpike past Falls Church until they were four miles from Fairfax when they turned left and hastened to Vienna where they bivouacked in a swampy field by simply wrapping themselves in their blankets. The soldiers had already experienced considerable discomfort from thirst. [31] Because of inexperience, indiscipline and hot weather, it took the Union forces until the morning of 18 July to reach Centreville, seven miles from the Confederate base at Manassas Junction. The concentration of troops and the arrival of the supply wagons required a lengthy halt (see Map #1). While McDowell set off from Centreville to reconnoiter to his left, he directed Brigadier General Daniel Tyler to send a detachment from his First Division to demonstrate toward Blackburn's Ford on Bull Run Creek. Beauregard had already arranged his forces in an arc, six miles long, behind Bull Run. On that hot afternoon (18 July), Colonel William Tecumseh Sherman moved his brigade forward in a reconnaissance-in-force. The 69th Militia Regiment doffed their heavy coats and knapsacks, and moved forward. They were ordered to lie down under artillery fire before they were driven from the fields around the ford after a sharp skirmish. [32] A new problem arose on 20 July. Along with stifling heat, the expiration of the enlistment of some of the militia units arrived. The 1st Rhode Island volunteered to remain with the army in active service until the campaign was concluded. Two other units, however, the 4th Pennsylvania and the artillery battery of the 8th New York Militia, refused to extend their terms of service. Their enlistments expired on 21 July, and they would not stay a moment longer. McDowell later blamed their action on the repulse at Blackburn's Ford. The two units prepared to return to Washington on the following day. [33] In his battle plan for 21 July, McDowell planned to use Tyler's division to demonstrate in front of the Stone Bridge that carried the Warrenton Turnpike over the Bull Run Creek. Tyler would initially place Sherman's brigade on the right of the pike and Schenk's brigade on the left, both facing west. Hunter's division, followed by that of Heintzelman, would lead a turning movement to the right. Hunter was prepared to march by 2:00 A.M. to the north, crossing Bull Run at Sudley Springs, and then falling on the Confederate left flank. Hunter, however, was delayed by Tyler's troops in front and his leading brigade did not arrive at Sudley Springs Ford until 9:30 A.M. Miles' division remained near Centreville during the day, and did not take part in the battle.

- 242 -

Colonel Nathan Evans, commanding a Confederate brigade at the Stone Bridge, observed McDowell's movements to his left and, recognizing Tyler's activities as a feint, marched northward to meet Hunter and Heintzelman. [34] Shortly after reaching Sudley Springs, Colonel Ambrose Burnsides's brigade advanced south on the road to Manassas. After proceeding about one mile, he came under fire from Evans's brigade. An officer of the 79th New York, while waiting for orders to make a forward movement, climbed to the top of a tree on the edge of the woods that overlooked that part of the battlefield occupied by the 71st Regiment (Burnsides' brigade). He never felt such a glow of pride for the City of New York, as when he witnessed the terrible fire of this regiment or the coolness with which it advanced in line of battle and hastened to deliver its fire. At each discharge he could see numbers of the opposing enemy regiment fall, never to rise again. [35] Heavy fighting continued along the Federal right flank with both armies feeding reinforcements into the line. By 10:00 A.M. parts of Bee's and Barlow's brigades that had arrived from the Shenandoah Valley marched to Evans' assistance. About noon the Confederate line gave way and retired south of the Warrenton Turnpike to the vicinity of the Henry House Hill. About the time of Evans' collapse, Sherman's brigade crossed Bull Run and moved onto the battlefield. Captain James Kelly of the 69th New York described his regiment's advance: The Regiment numbered one thousand muskets and was attended by one ambulance only, the others having broken down. The 69th had good reason to complain that whilst other regiments of other divisions were permitted to have baggage and other wagons immediately to the rear, the regiment was peremptorily denied any facilities of the sort. The consequence was that the 69th arrived on the field of action greatly fatigued and harassed, and but for their high sense of duty and military spirit, would not have been adequate to the terrible duties of the day. [36] Colonel Sherman continued the narrative: Early in the day, when reconnoitering the ground, I had seen a horseman descend a bluff to a point across the stream (Bull Run) and show himself in the open field. I sent forward one company as skirmishers and followed with the whole brigade, the 69th leading. We found no difficulty in crossing over and met with no opposition in ascending the steep bluff, but it was impassable to the artillery. Advancing slowly with the head of the column to give time for the regiments in succession to close up. .Lieutenant Colonel Haggerty of the 69th rode over without orders and was shot down while trying to intercept the retreat of an enemy party. [37]

- 243 -

While Evans, Bee and Bartow retreated before the advance of Hunter and Heintzelman, Thomas J. (later "Stonewall") Jackson's brigade of Johnston's army arrived on the Henry House plateau. A new line was anchored on that high ground. Between 1:00 and 2:00 P.M. a lull settled over the fighting as McDowell's troops advanced south and then reformed along the Warrenton Turnpike in preparation for an attack on the Henry House Hill. Colonel Andrew Porter's 8th New York Militia, which had already been badly broken in the earlier fighting, turned back and took no further part in the battle that day. [38] On the Federal right, a force consisting of the 11th New York Volunteers (Zouaves), 14th New York Militia (popularly known as the 14th Brooklyn) and the 27th New York Volunteers was sent to support the artillery batteries along the turnpike. A Confederate cavalry charge down the Sudley Springs road routed the 11th New York. A flank attack by the Confederate 33rd Virginia fired into the remnants of the 11th New York and the 27th New York, and drove them off. The 11th retreated through the ranks of the 14th Brooklyn, and that regiment was also broken when it was brought up in line. Colonel Wood, the regimental commander, was wounded and later captured while riding in an ambulance. [39] For the next two hours, there was heavy and confused fighting on the plateau, largely for possession of Griffin's and Rickett's Federal artillery batteries. Meanwhile, Sherman, on the Federal left, had begun putting his regiments into the fight. He left his position on the turnpike and started up the Henry House Hill towards the Robinson House. Sherman attacked with one regiment at a time and each in turn would be driven back and forced to take shelter under the crest of the hill. Sherman had first sent the 79th New York Militia to the top of the hill where they traded volleys with the enemy. Colonel James Cameron, brother to the secretary of war, was killed in the hottest fire while attempting to rally his regiment. [40] The Highlanders halted, then began to fall back. "As we passed down we saw our Colonel lying still in the hands of Death." [41] This left the 69th New York. Twice they charged up the slope. Twice they were repulsed, in part they claimed, because of the demoralization of the Highlanders before them. With two companies dressed in gray, they received fire from other Federal units. Confederates captured the 69th's National Color, but it was re-taken by Captain Wildly of the 11th New York Volunteers. Their Colonel Corcoran, who had been separated from his regiment after falling from his wounded horse, was made a prisoner around 3:30 P.M. [42] By 3:45 P.M. the Confederates launched a final attack and within an hour the last of McDowell's troops withdrew from the field. The Federal withdrawal began in fairly good order, but it soon generated into panic-stricken flight. Colonel Henry Martin of the 71st New York Militia described how his "Regiment retired in line of battle in common time - and not one man running." Colonel Fowler of the 14th Brooklyn, however, later

- 244 -

described how "leaving the battlefield at Bull Run was not a retreat or a falling back, it was a stampede." [43] The regimental historian of the 79th Highlanders later related that "Rain soaked us to the skin and a more bedraggled, demoralized and woebegone looking lot of men I never saw before nor since than we who plodded along through mud and slush towards our haven of rest." Sherman's brigade and Sykes' battalion of regulars were detailed to cover the retreat of the army, and at one point they formed square to repel Confederate cavalry. [44] By 7:30 P.M. the last of the fugitives had finally passed through Centreville and streamed in disorder through Fairfax Courthouse toward the Potomac. No one substantially faulted McDowell's generalship or his battle plan. He had devised an excellent plan, missing only the strong defensive position open to the enemy at the Henry House Hill line and this McDowell could not know because of the faulty maps available. Except for the inexperience of the troops and excessive delays, the outcome might have been far different. [45] Certainly, the New York militia had acquitted itself as well as could be expected under the circumstances. No others had done better, and the casualties were a measure of their efforts. The 79th New York alone lost 198 men, 115 of them captured or missing. Besides their colonel and second-in-command, the 69th sustained losses of 41 officers and men killed, 85 wounded and 60 prisoners. [46] Coming to the end of their three-month tour of duty, it now remained for the militia regiments to muster-out, and return to their inactive duty status. The 7th Regiment had already been released on 3 June after transferring all their camp equipage to the 9th Regiment. [47] The battle that was considered a disaster in the North did not stop the return of the three-month units. On 26 July the 8th New York Militia arrived by ferry at Cortland Street with one of the Confederate Black Horse Cavalry horses as a trophy. Later the same day, the 71st Regiment arrived on the steamer John Potter. Crowds jammed the piers on the Hudson River and traffic came to a halt on West Street. The 8th Regiment's Washington Grays Home Guard fired a welcome with six howitzers. The uniformed juvenile corps of the Ellsworth and Anderson Zouaves joined Governor Morgan in the reception that gave the appearance of the return of victorious rather than defeated troops. The wounded of the 71st were carefully placed in carriages, and the regiment marched up Broadway. Flags flew from almost every window, and as the troops passed Barnum's Museum, the Barnum Band played "The Bold Soldier Boy." Members of the various Irish societies met at the Hibernia Hall to plan a warm welcome for the 69th, but the regiment did not show up until the following day. Crowds repeated their greeting as the Irish marched up Broadway to Union Square and down Fourth Avenue and the Bowery to their headquarters at the Essex Market Armory. The shabby men wore a variety of hats and shirts and carried heavy knapsacks. [48] The 69th did not officially muster-out until 23 August. Each soldier received $29.88 wages after waiting for a month. The soldiers also discovered that the government had deducted $2.20 for a new pair of boots and forty-eight cents for two pairs of socks

- 245 -

from the pay of each man. Patriotic fervor, however, still remained strong since on 30 August nearly every officer and soldier volunteered for three-years duty in the newlyraised 69th New York Volunteers. An inspection of the militia unit on 18 October at its armory revealed that 252 members were either absent on active service or casualties at Bull Run. The inspector removed 300 muskets from a heap where they had been thrown on the return of the regiment in July. Those remaining in the pile were in such a rusted condition as to be unserviceable. [49] The defeat at Bull Run convinced Northerners that the Civil War was not to be short-lived. It now remained for the Federal government and, more importantly, the state governments to mobilize their resources to fight it. That effort by the New York State Militia establishment will be the subject of the next chapter. Chapter Two Footnotes 1. William A. Swinton, History of the Seventh Regiment, National Guard (New York: Charles T. Dllingham, 1876), 23. 2. William J. Roehrenbeck, The Regiment That Saved the Capital (New York: Thomas Yoseloff, 1961), 51. 3. New York State, Annual Report of the Adjutant General (Albany, NY: 1863), 8. Hereinafter cited as: AG. 4. Roehrenbeck, Regiment That Saved the Capital, 53. 5. Swinton, Seventh Regiment, 24. 6. Ibid., 27. 7. Roehrenbeck, Regiment That Saved Capital, 61. 8. 9. Ibid., 71. Ibid., 105.

10. Ibid., 111. 11. Ibid., 157. 12. Frank J. Welcher, The Union Army 1861-1865, The Eastern Theater (Bloomington, IN: Indiana University Press, 1989), I: 160. This volume contains much valuable information on the organization and administration of the Union Army. It also covers campaigns and military districts.

- 246 -

13. Daniel P. O'Flaherty, "History of the 69th Regiment N. Y.S.M.," (Ph,D diss., University of Michigan, 1966), 240. 14. Ibid., 243.

15. William Todd, The 79th Highlanders, New York Volunteers 1861-1865 (Albany, NY: Press of Brandow, Bartow & Co., 1886), 12. 16. John Jaques, Three Years Campaign with the 9th Regiment (New York: Hilton & Co, 1865), 11. 17. Theodore Gates, Ulster Guard (20th Regiment N. Y.S.M.) (New York: Benjamin H. Tyrell, Printer, 1879), 75. 18. Frederick Todd, Military Equipage 1851-1872 (Providence, RI: Company of Military Historians, 1977), 1031. 19. Ibid., 1011.

20. AG, 1862, 110. 21. U.S. War Department, The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (Washington D.C.: U.S. Government Printing Office, 1880-1901), Series I, Vol. II, 38. Hereinafter cited as: OR. 22. 23. O'Flaherty, "History of the 69th," 252. OR, Series I, Vol. II, 4L

24. William C. Davis, Battle at Bull Run (Garden City, NY: Doubleday & Co. Inc., 1977), 9. 25. 26. 27. Ibid., 77. Welcher, Union Army, 73. Davis, Bull Run, 87.

28. George Hussey, History of the 9th Regiment N. Y.S.M. (83rd Volunteers) (New York: J.S. Ogilvie Press, 1889), 61. 29. AG, 1862, 111. 30. 31. Todd, 79th Highlanders, 20. O'Flaherty, "History of the 69th," 31.

- 247 -

32. William Root, 69th Regiment in Peace and War (New York: Blanchard Press, 1905), 12. 33. 34. Davis, Battle at Bull Run, 154. Welcher, Union Army, 633.

35. AG, 1862, 122. 36. OR, Series I, Vol. II, 372.

37. Ibid., 369. 38. Welcher, Union Army, 635.

39. Charles Tevis, History of the Fighting 14th Regiment NGSNY (New York: Brooklyn Eagle Press, 1911), 21. 40. 41. 42. Todd, 79th Highlanders, 42. Davis, Battle at Bull Run, 218. Root, 69th in Peace and War, 13.

43. Henry Whittemore, History of the 71st Regiment N. G.S.N. Y. (New York: Willis McDonald & Co., 1886), 56; Tevis, Fighting 14th Regiment, 233. 44. Todd, 79th Highlanders, 47; O'Flaherty, "History of the 69th," 289.

45. Jaques, Campaign with the 9th Regiment, 22. 46. Todd, 79th Highlanders, 47; O'Flaherty, "History of the 69th," 302. 47. Jaques, Campaign with the 9fh Regiment, 22.

48. Ernest A. McKay, The Civil War and New York City (Syracuse, NY: Syracuse University Press, 1990), 91. 49. O'Flaherty, "History of the 69th," 302; Root, 69th in Peace and War, 18; AG, 1862, 125. New York State Division of Military and Naval Affairs: Military History Last modified: April 6, 2006 URL: http://www.dmna.state.ny.us/historic/reghist/civil/UnionBlue/UnionBlueChap2.htm

- 248 -

EXHIBIT 19
U.S. Constitution: Article I Clauses 15 and 16. The Militia THE MILITIA CLAUSE Calling Out the Militia The States as well as Congress may prescribe penalties for failure to obey the President's call of the militia. They also have a concurrent power to aid the National Government by calls under their own authority, and in emergencies may use the militia to put down armed insurrection. 1581 The Federal Government may call out the militia in case of civil war; its authority to suppress rebellion is found in the power to suppress insurrection and to carry on war. 1582 The act of February 28, 1795, 1583 which delegated to the President the power to call out the militia, was held constitutional. 1584 A militiaman who refused to obey such a call was not ''employed in the service of the United States so as to be subject to the article of war,'' but was liable to be tried for disobedience of the act of 1795. 1585 Regulation of the Militia The power of Congress over the militia ''being unlimited, except in the two particulars of officering and training them . . . it may be exercised to any extent that may be deemed necessary by Congress. . . . The power of the state government to legislate on the same subjects, having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the States, subordinate nevertheless to the paramount law of the General Government . . .'' 1586 Under the National Defense Act of 1916, 1587 the militia, which hitherto had been an almost purely state institution, was brought under the control of the National Government. The term ''militia of the United States'' was defined to comprehend ''all able-bodied male citizens of the United States and all other able-bodied males who have . . . declared their intention to become citizens of the United States,'' between the ages of eighteen and forty-five. The act reorganized the National Guard, determined its size in proportion to the population of the several States, required that all enlistments be for ''three years in service and three years in reserve,'' limited the appointment of officers to those who ''shall have successfully passed such tests as to . . . physical, moral and professional fitness as the President shall prescribe,'' and authorized the President in certain emergencies to ''draft into the military service of the United States to serve therein for the period of the war unless sooner discharged, and all members of the National Guard and National Guard Reserve,'' who thereupon should ''stand discharged from the militia.'' 1588 The militia clauses do not constrain Congress in raising and supporting a national army. The Court has approved the system of ''dual enlistment,'' under which persons enlisted in

- 249 -

state militia (National Guard) units simultaneously enlist in the National Guard of the United States, and, when called to active duty in the federal service, are relieved of their status in the state militia. Consequently, the restrictions in the first militia clause have no application to the federalized National Guard; there is no constitutional requirement that state governors hold a veto power over federal duty training conducted outside the United States or that a national emergency be declared before such training may take place. 1589 Footnotes [Footnote 1581] Moore v. Houston, 3 S. & R. (Pa.) 169 (1817), affirmed, Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820). [Footnote 1582] Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Tyler v. Defrees, 78 U.S. (11 Wall.) 331 (1871). [Footnote 1583] 1 Stat. 424 (1795), 10 U.S.C. Sec. 332. [Footnote 1584] Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32 (1827). [Footnote 1585] Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820); Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827). [Footnote 1586] Houston v. Moore, 18 U.S. (5 Wheat.) 1, 16 (1820). Organizing and providing for the militia being constitutionally committed to Congress and statutorily shared with the Executive, the judiciary is precluded from exercising oversight over the process, Gilligan v. Morgan, 413 U.S. 1 (1973), although wrongs committed by troops are subject to judicial relief in damages. Scheuer v. Rhodes, 416 U.S. 233 (1974). [Footnote 1587] 39 Stat. 166, 197, 198, 200, 202, 211 (1916), codified in sections of Titles 10 & 32. See Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181 (1940). [Footnote 1588] Military and civilian personnel of the National Guard are state, rather than federal, employees and the Federal Government is thus not liable under the Tort Claims Act for their negligence. Maryland v. United States, 381 U.S. 41 (1965). [Footnote 1589] Perpich v. Department of Defense, 496 U.S. 434 (1990).

- 250 -