A. The Militia Act (1792): Excerpt
"[E]ACH AND EVERY FREE ABLE-BODIED WHITE MALE CITIZEN OF THE RESPECTIVE STATES, RESIDENT THEREIN, who is or shall be of the 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 times hereafter be the duty of every such captain or commanding officer of a company to enroll EVERY SUCH CITIZEN as aforesaid. . . [emphasis added]"That EVERY CITIZEN so enrolled and notified, shall within six month thereafter, PROVIDE HIMSELF with a good musket or firelock, a sufficient bayonet and belt, two spare flints. . .." [An Act. . . Establishing an Uniform Militia through the United States; May 8, 1792 -- emphasis added]
B. The National Guard Act (1903): Excerpt
The National Guard was establish in 1903 when Congress created the NG under its power to "raise and support armies". (see H.R. Report No. 141, 73d Cong., 1st Sess. at 2-5, 1933) It was done in order to create reserve MILITARY units. The NG was specifically intended to avoid status as the constitutional militia, and this distinction is recognized by 10 U.S.C. 311. It was not, nor was it intended to be the Militia as was recognize by the USSC in Presser and reaffirmed again in US v. Miller.
"[T]he 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 classes -- the organized militia, to be know 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 know as the Reserve Militia." [from "An Act To promote the efficiency of the militia, and for other purposes", January 21, 1903]
C. Current law
(the short form)
"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 commissioned officers 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."
(the long form in all of its legalistic glory)
CITE 10 USC CHAPTER 13 - THE MILITIA
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EXPCITE TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA
. HEAD CHAPTER 13 - THE MILITIA MISC1 Sec.
311. Militia: composition and classes.
312. Militia duty: exemptions.
CITE 10 USC Sec. 311
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EXPCITE TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA
HEAD STATUTE
Sec. 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.
SOURCE (Aug. 10, 1956, ch. 1041, 70A Stat. 14; Sept. 2, 1958, Pub. L. 85-861, Sec. 1(7), 72 Stat. 1439; Nov. 30, 1993, Pub. L. 103-160, div. A, title V, Sec. 524(a), 107 Stat. 1656.)
MISC1
|
Historical and Revision Notes 1956 Act |
||
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
| 311(a) | 32:1 (less last 19 words. | June 3, 1916, ch. 134, Sec. 57, 39 Stat. 197; June 28, 1947, ch. 162, Sec. 7 (as applicable to Sec. 57 of the Act of June 3, 1916, ch. 134), 61 Stat. 192. |
| 311(b) | 32:1 (last 19 words). | |
In subsection (a), the words ''who have made a declaration of intention'' are substituted for the words ''who have or shall have declared their intention''. The words ''at least 17 years of age and * * * under 45 years of age'' are substituted for the words ''who shall be more than seventeen years of age and * * * not more than forty-five years of age''. The words ''except as provided in section 313 of title 32'' are substituted for the words ''except as hereinafter provided'', to make explicit the exception as to maximum age.
In subsection (b), the words ''The organized militia, which consists of the National Guard and the Naval Militia'' are substituted for the words ''the National Guard, the Naval Militia'', since the National Guard and the Naval Militia constitute the organized militia.
| 1958 Act | ||
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
| 311(a) | 32 App.:1. | July 30, 1956, ch. 789, Sec. 1, 70 Stat. 729. |
1993 - Subsec. (a). Pub. L. 103-160 substituted ''members'' for ''commissioned officers''.
1958 - Subsec. (a). Pub. L. 85-861 included female citizens of the United States who are commissioned officers of the National Guard.
CROSS CROSS REFERENCES
Congressional power to provide for organization, equipment, discipline, and government of Militia, see Const. Art. 1, Sec. 8, cl. 16.
Declaration of intention to become a citizen of the United States, see section 1445 of Title 8, Aliens and Nationality.
CITE 10 USC Sec. 312
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EXPCITE TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA
HEAD Sec. 312. Militia duty: exemptions
STATUTE (a) The following persons are exempt from militia
duty:
(1) The Vice President.
(2) The judicial and executive officers of the
United States, the several States and Territories, and Puerto Rico.
(3) Members of the armed forces, except members who are not on
active duty.
(4) Customhouse clerks.
(5) Persons employed by the United States in the transmission
of mail.
(6) Workmen employed in armories, arsenals, and naval shipyards
of the United States.
(7) Pilots on navigable waters.
(8) Mariners in the sea service of a citizen of, or a merchant
in, the United States.
(b) A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant.
SOURCE (Aug. 10, 1956, ch. 1041, 70A Stat. 15; Sept. 29, 1988, Pub. L.
100-456, div. A, title XII, Sec. 1234(a)(3), 102 Stat. 2059.)
MISC1
| Historical and Revision Notes | ||
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
| 312(a) | 32:3 (less last 67 words). | June 3, 1916, ch. 134, Sec. 59, 39 Stat. 197. |
| 312(b) | 32:3 (last 67 words). | |
In subsection (a), the words ''Members of the armed forces'' are substituted for the words ''persons in the military or naval service''. The words ''except members who are not on active duty'' are inserted to reflect an opinion of the Judge Advocate General of the Army (JAGA 1952/4374, 9 July 1952). The word ''artificers'' is omitted as covered by the word ''workmen''. The words ''naval shipyards'' are substituted for the words ''navy yards'' to reflect modern terminology. The words ''on navigable waters'' are inserted to preserve the original coverage of the word ''pilots''. The words ''actually'' and ''without regard to age'' are omitted as surplusage.
1988 - Subsec. (a)(2). Pub. L. 100-456 substituted ''and Puerto Rico'' for ''Puerto Rico, and the Canal Zone''.
CROSS CROSS REFERENCES
Deferments and exemptions from training and service under Military Selective Service Act, see section 456 of Appendix to Title 50, War and National Defense.
[ C. 10 U.S.C. 311 (from my xerox): Excerpt
"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 commissioned officers 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."