The President’s authority had a life of two years, and was invoked to suppress the Whiskey Rebellion in 1794. In 1795, Congress enacted the Militia Act of 1795, which mirrored the provisions of the expired 1792 Acts, except that the President’s authority to call out the militias was made permanent. The Militia Act of 1862, enacted during the American Civil War, amended the conscription provision of the 1792 and 1795 acts, which originally applied to every "free able-bodied white male citizen" between the ages of 18 and 45, to allow African-Americans to serve in the militias. The new conscription provision applied to all males, regardless of race, between the ages of 18 and 54. The Militia Act of 1903 repealed and superseded the Militia Act of 1795 and established the United States National Guard as the chief body of organized military reserves in the United States.[1]
Background
It was understood at the time that the President did not have the power under the Constitution on his own authority to call out the militia, and required statutory authorisation by Congress to do so.
The Militia Acts were passed in response to the enormous losses suffered by General Arthur St. Clair’s forces at the Battle of the Wabash in 1791,[2] when nearly 1,000 Americans died in battle against the Western Confederacy of American Indians. There was a widespread fear that Indian forces would exploit their victory during the recess of Congress. St. Clair's defeat was blamed in part on the poor organization and equipment of his army.[3]
First Militia Act of 1792
The first Militia Act was passed on May 2, 1792, and provided authority to the President to call out 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". (art. I, ss. 1)
The Act 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". (art. I, ss. 2) This provision likely referred to uprisings such as Shays' Rebellion.
The president's authority in both cases was conditional on the President, by proclamation, firstly ordering the insurgents “to disperse, and retire peaceably to their respective abodes, within a limited time.“
The president's authority in both cases was to expire at the end of the session of Congress after two years. By the Militia Act of 1795, Congress re-enacted the provisions of the 1792 Act, except that the President’s authority to call out militias was made permanent.
Second Militia Act of 1792
Front page of a newspaper announcing the second Militia Act of 1792.
The second Militia Act of 1792 was passed on May 8, 1792, and provided for the organization of state militias and the conscription of every "free able-bodied white male citizen" between the ages of 18 and 45:
... 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 ...
Militia members were required to equip themselves with a musket, bayonet and belt, two spare flints, a box able to contain not less than 24 suitable cartridges, and a knapsack. Alternatively, everyone enrolled was to provide himself with a rifle, a powder horn, ¼ pound of gunpowder, 20 rifle balls, a shot-pouch, and a knapsack.[4] Exemptions applied to some occupations, including congressmen, stagecoach drivers and ferryboatmen.
The militias were divided into "divisions, brigades, regiments, battalions, and companies" as the state legislatures would direct.[5] 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.[6]Court martial proceedings were authorized by the statute against militia members who disobeyed orders.[7]
Use and subsequent amendments
George Washington was the first president to call out the militia in 1794 (just before the 1792 act expired) to put down the Whiskey Rebellion in Western Pennsylvania. Congress passed the Militia Act of 1795, which by and large mirrored the provisions of the expired 1792 Act, but made the president’s authority to call out the militias permanent.
The 1792 and 1795 acts left the question of state versus federal control of the militia unresolved. In consequence, the federal government could not consistently rely on the militias for national defense. For example, during the War of 1812, members of the New York militia refused to take part in operations against the British in Canada, arguing that their only responsibility was to defend their home state.[8] On another occasion, the Governor of Vermont unsuccessfully attempted to recall his state's militia from the defense of Plattsburgh, claiming that it was illegal for them to operate outside of Vermont.[9]
As a result, starting the War of 1812, the federal government would create "volunteer" units when it needed to expand the size of the regular Army. These volunteer units were not militia, though often they would consist of whole militia units which had volunteered en masse, nor were they part of the regular Army. This solution was also employed during the Mexican–American War (1846-48),[10] and in the Union Army during the American Civil War (1861-65).[11]
During the Spanish–American War (1898) some volunteer units were organized, most notably the 1st United States Volunteer Cavalry Regiment, nicknamed "Rough Riders."[12][13] The federal government also mobilized several National Guard units which volunteered en masse and were accepted as volunteer units.[14][15]
