In the maze of American military law, an oddity has persisted for over a century – the concept of the “unorganized militia.” This peculiar term, which first appeared in federal law in 1916, represents a significant but largely unnoticed downgrade in how we think about civilian military capability in the United States.
The term currently appears in law as part of Title 10, Section 246 of the US Code, which divides the militia into two classes: the “organized militia” (consisting of the National Guard and Naval Militia) and the “unorganized militia” (everyone else who meets certain criteria). At first glance, this might seem like simple administrative categorization, but there’s a deeper problem here – one that touches on important questions about military preparedness and constitutional rights.
The issue? The term “unorganized militia” is, fundamentally, an oxymoron, or, a self-contradictory statement. A “militia,” by definition, is a military formation. How can a military formation be unorganized? It’s like saying “unorganized organization” – the terms are inherently contradictory. This isn’t just semantic nitpicking; it represents a fundamental shift in how American law views civilian military capability.
Before 1916, the terminology was different and more sensible. The Dick Act of 1903, which laid the groundwork for the modern National Guard, used the term “Enrolled Militia” for citizens who weren’t part of the National Guard. Some states, like Texas, currently use the term “Reserve Militia.” Both terms implied potential for activation and organization – they suggested a genuine reserve of military manpower that could be called upon if needed.
The shift to “unorganized militia” wasn’t just a change in words; it represented a degradation of the entire concept. An “enrolled” or “reserve” force suggests capability and readiness; an unorganized one suggests…well, nothing much at all. This change coincided with the post-World War II era’s emphasis on maintaining a peacetime draft, and it has been argued that the new terminology was deliberately chosen to legitimize selective service as a “selective activation of the unorganized militia,” while simultaneously seeking to limit the organization of an armed force under the auspices of the Federal Government, but which could be subverted by anti-government agitation.
If this sounds like a “fringe” conspiracy theory, it most certainly is not. Writing in 1989, US Army four-star general John R. Galvin pointed out that the Massachusetts Militia – the force that fought and won the Battles of Lexington & Concord in 1775 – were only able to do so because the militiamen had almost uniformly “un-elected” their Loyalist officers in 1774, and had spent the next year training relentlessly and assembling supplies for the coming war.
No government is ever comfortable giving potential opponents the time, materials and ability to organize against them, especially when those potential opponents are their own citizens.
There are other peculiarities in the current law. For instance, it appears in Title 10 of the US Code, which governs federal military forces, yet describes itself as the “Militia of the United States,” rather than the “Militia of the Several States.” This creates a puzzling jurisdictional issue – the federal government defines this body as a “militia,” but provides no mechanism for forming or organizing it; meanwhile, the states are solely able to organize their own militia formations (meaning, the state governments alone, not their citizens), confirmed in that authority by the 1886 Supreme Court decision in Illinois v. Presser (which decision, incidentally, also invalidates virtually all restrictive gun control measures), yet few states even make an attempt to do so, limiting themselves to maintaining their State National Guard commands and, in some states, to “State Guard” formations, some of which may even be provided with arms by the State…Yet, no state has any provision to muster a “militia” in the sense of one as described in the US Code – if you visit the government website of your county of residence, and can find a link telling you when and where to muster for your county militia, please let this author know.
The law also contains certain oddities in age restrictions that conflict with current military practice. It limits militia service to male citizens of ages 17-45, yet the National Guard accepts prior service members up to age 64 (per Section 313 of Title 32). This means that those with prior military service are automatically still “in service” in the “Militia of the United States“, if they are under the age of sixty-five, generally without them being informed of this status before enlisting in Federal Service, creating a very “interesting” series of potential legal issues, all by itself.
With recent Supreme Court decisions emphasizing historical analysis in Second Amendment cases (particularly New York State Rifle & Pistol Association v. Bruen), the time might be right to challenge this legal framework. A return to the concept of an “Enrolled Militia” or “Reserve Militia” could provide a foundation for a more practical system of civilian military capability, one that is not simply “military” in nature, but one that could enhance disaster response to major natural disasters.
One possible reform would involve creating a “US Militia Coordinating Office” staffed by retired field-grade officers from the Army and Marine Corps, providing local oversight in each county while maintaining federal coordination. This would bridge the gap between state and federal authority while creating a practical framework for organizing civilian military capability when needed.
The current system, with its contradictory terminology and practical limitations, seems increasingly out of step with both historical precedent and modern needs. As the Hamas attack on Israeli civilians that began on October 7, 2023 showed, the world remains a dangerous place, and when the local police and regular military cannot respond, or are overwhelmed, it is the average Citizen who has to step into the breach.
That is laid out in the Tenth Amendment, if you’d care to read that.
As we face evolving security challenges, it is past time to reconsider how we structure and organize civilian military capability in America. The answer might lie not in new innovations, technology, or tools, but in returning to the more practical and legally sound concepts of our past.
If the Federal and State governments have issues with this, maybe it is also time to replace the individuals in those governments with people who understand that American Citizens are not the enemy – unless the government makes them so.
