Militia “Legally” Defined

The following definitions for “militia” are taken from Ballantine’s Law Dictionary (3rd edition), Bouvier’s Law Dictionary (6th edition), Black’s Law Dictionary (2nd edition), and Webster’s Dictionary (1828):




A body of armed citizens trained to military duty, who may be called out in certain cases, but may not be kept in service, like standing armies, in time of peace [36 Am J1st Mil § 42; see active militia; National Guard; state militia].



  1. The military force of the nation, consisting of citizens called forth to execute the laws of the Union, suppress insurrection and repel invasion.

  2. The Constitution of the United States provides on this subject as follows: Art. 1, s. 8, 14. Congress shall have power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.

  3. 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.

  4. Under the clauses of the Constitution, the following points have been decided: If congress had chosen, they might by law, have considered a militia man, called into the service of the United States, as being, from the time of such call, constructively in that service, though not actually so, although he should not appear at the place of rendezvous. But they have not so considered him, in the acts of Congress, till after his appearance at the place of rendezvous; previous to that, a fine was to be paid for the delinquency in not obeying the call, which fine as deemed as equivalent for his services, and an atonement for disobedience.

  5. The militia belong to the states respectively, and are subject, both in their civil and military capacities, to the jurisdiction and laws of the state, except so far as these laws are controlled by acts of Congress, constitutionally made.

  6. It is presumable the Framers of the Constitution contemplated a full exercise of all the powers of organizing, arming, and disciplining the militia; nevertheless, if Congress had declined to exercise them, it was competent to the state governments respectively to do it. But Congress has executed these powers as fully as was thought right, and covered the whole ground of their legislation by different laws, notwithstanding important provisions may have been omitted, or those enacted might be beneficially altered or enlarged.

  7. After this, the states cannot enact or enforce laws on the same subject. For although their laws may not be directly repugnant to those of Congress, yet Congress, having exercised their will upon the subject, the states cannot legislate upon it. If the law of the latter be the same, it is inoperative; if they differ, they must in the nature of things, oppose each other, so far as they differ.

  8. Thus if an act of Congress imposes a fine, and a state law fine and imprisonment for the same offence, though the latter is not repugnant, inasmuch as it agrees with the act of the Congress, os far as the latter goes, and add another punishment, yet the wills of the two legislating powers in relation to the subject are different, and cannot subsist harmoniously together.

  9. The same legislating power may impose cumulative punishments; but not different legislating powers.

  10. Therefore, where the state governments have, by the Constitution, a concurrent power with the national government, the former cannot legislate on any subject on which Congress has acted, although the two laws are not in terms contradictory and repugnant to teach other.

  11. Where Congress prescribed the punishment to be inflicted on a militia man, detached and called forth, but refusing to march, and also provided that courts martial for the trial of such delinquents, to be composed of militia officers only, should be held and conducted in the manner pointed out by the rules and articles of war, and a state had passed a law enacting the penalties on such delinquents which the act of Congress prescribed, and directing lists of the delinquents to be furnished to the comptroller of the United States and marshal, that further proceeding might take place according to the act of Congress, and providing for their trial by state courts martial, such state courts martial have jurisdiction. Congress might have vested exclusive jurisdiction in courts martial to be held according to their laws, but not having doen so expressly, their jurisdiction is not exclusive.

  12. Although Congress have exercised the whole power of calling out the militia, yet they are not national militia, till employed in actual service; and they are not employed in actual service, till they arrive at the place of rendezvous [5 Wheat. 1; Vide 1 Kent’s Com. 262; 3 Story, Const. 1194 to 1210].

  13. The acts of the national legislature which regulate the militia are the following, namely: Act of May 8, 1792; 1 Story, L. U. S. 252; Act of February 28, 1795, 1 Story, L. U. S. 390; Act of March 2, 1803, 2 Story, L. U. S. 888; Act of April 10 1806, Story, L. U. S. 1005; Act of April 20, 1816; 3 Story, L. U. S. 1573; Act of May 12 1820, 3 Story, L. U. S. 1786 Act of March 2, 1821, 3 Story; L. U. S. 1811.



The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies, as distinguished from regular troops or a standing army [see Ex parte McCants, 39 Ala. 112; Worth v. Craven County, 118 N. C. 112, 24 S. E. 778; Brown v. Newark, 29 N. J. Law, 238].



MIL’TIA, noun [Latin from miles, a soldier; Gr. war, to fight, combat, contention. The primary sense of fighting is to strive, struggle, drive, or to strike, to beat; English. moil, Latin. molior; Hebrew. to labor or toil].

The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.

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