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trol and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations are authorized by the militia laws of the United States. The exercise of this power, by the States, is necessary to the public peace, safety, and good order. Presser v. Illinois, 116 U. S. 252, 267 ; U. S. v. Cruikshank, 92 U. S. 542; New York r. Miln, 11 Pet. 102, 139.

"Arms" within purview of the constitu. tional provision. The arms referred to are the arms of a militiaman or soldier, and they do not comprise dirks, bowie knives, etc. English v. State (1872), 35 Tex. 473, 14 Am. Rep. 374.

Exercise of State police power in general.—This provision was

never intended to prevent a State from adopting such measures of police as might be necessary in order to protect the orderly and well-disposed citizens from the treacherous use of weapons not designed for any purpose of public defense, and used most frequently by evil disposed men who seek an advantage over their antagonists in the breaches of the peace which they are prone to provoke. State v. Sinith (1856), 11 La. Ann, 633, 66 Am. Dec. 208.

Carrying or possessing arms without license.-A State statute prohibiting all bodies of men, except those comprising the

regularly organized militia of the State
and United States troops, from associating,
drilling, or parading with arms in any city
without license from the governor of the
State, is valid ; the amendment not apply.
ing to the States. Presser 0. Illinois
(1886), 6 Sup. Ct. 580, 582, 584 ; 116 U. S.
252, 29 L. Ed. 615.

Aet Ga August 12, 1910, prohibiting
the carrying of a revolver without a license
is not a violation of th amendment. Strick-
land v. State (1911), 72 S. E. 260, 137 Ga.
1. 36 L. R. A. (N. S.) 115, Ann. Cas.
1913B, 323 (C. S. p. 14310).

Carrying weapons.--A State statute against carrying concealed weapons doeg not contravene this amendment. Robertson v. Baldwin (1897), 17 Sup. Ct. 326, 329 ; 165 U. S. 275, 41 L. Ed. 715; (C. S. p. 14310).

St. Okl. 1893, prohibiting the carrying of certain deadly weapons on or about the person, is constitutional, and within the police power of the Territory. Walburn v. Territory (1899), 59 P. 972, 9 Okl. 23.

Code W. Va., prohibiting the carrying of a pistol, dirk, bowie knife, etc., or any other dangerous or deadly weapon of like kind, does not violate this amendment. State v. Workman (1891), 35 W. Va. 367, 14 S. E, I, 14 L. R. A. 600.


2503. State and territory defined.—That whenever the words “ State or Terri. tory" are used in the “ Act to promote the efficiency of the militia, and for other purposes," approved January twenty-first, nineteen hundred and three, as amended, they shall be held to apply to and include the District of Columbia, Sec. 74 added to the act of Mar. 1, 1889 (25 Stat. 772–781), by the act of Feb. 18, 1909 (35 Stat. 636).

Prorided further, That the word Territory as used in this Act and in all laws relating to the land militia and National Guard shall include and apply to Hawaii, Alaska, Porto Rico, and the Canal Zone, and the militia of the Canal Zone shall be organized under such rules and regulations, not in conflict with the provisions of this Act, as the President may prescribe. Sec. 62, act of June 3, 1916 (39 Stat. 198).

2504. Composition of the militia.—The militia of the United States shall consist of all able-bodied male citizens of the United States and all other ablebodied males who have or shall have declared their intention to become citizens of the United States, who shall be more than eighteen years of age and, except as hereinafter provided, not more than forty-five years of age, and said militia shall be divided into three classes, the National Guard, the Naval Militia, and the Unorganized Militia. Sec. 57, act of June 3, 1916 (39 Stat. 197).

Notes of Decisions.

Purpose and operation.--Congress has power to determine who sball compose the militia. Opinion of the Justices (1859), 80 Mass. (14 Gray) 614.

Age limits.--It is competent for the State legislature to exempt persons from enrollment, designating them by their agefor example, persons under 21 or over 30

year's of

age. Opinion of the Justices (1838), 39 Mass. (22 Pick.) 571.

Aliens.--An alien is not liable to militia duty. Slade v. Minor (C. C. 1817), Fed. (as. No. 12,937.

Bodily infirmity.-A captain has no authority to exempt a private from the per

formance of milltary duty on account of bodily infirmity, upon the certificate of a physician who is not

a surgeon or a surgeon's mate of the regiment, and does not reside within the bounds of the regiment. Cobb v. Lucas (1833), 32 Mass. (15 Pick.) 1.

2505. Exemption from militia duty.—The Vice President of the United States; the officers, judicial and executive, of the Government of the United States and of the several States and Territories; persons in the military or naval service of the United States; customhouse clerks; persons employed by the United States in the transmission of the mail; artificers and workmen employed in the armories, arsenals, and navy yards of the United States; pilots; mariners actually employed in the sea service of any citizen or merchant within the United States, shall be exempt from militia duty without regard to age, and all persons who because of religious belief shall claim exemption from military service, if the conscientious holding of such belief by such person shall be established under such regulations as the President shall prescribe, shall be exempted from militia service in a combatant capacity; but no person so exempted shall be exempt from militia service in any capacity that the President shall declare to be norcombatant. Sec, 59, act of June 3, 1916 (39 Stat. 197).

This act superseded provisions as to exemptions in sec. 2 of the militia act of Jan. 21, 1903 (32 Stat. 775). The principal changes made by the 1916 act were to omit the exemption in the 1903 act of “all persons who are exempted by the laws of the respective States or Territories," and to add in the 1916 act the clause, but no person so exempted shall be exempt from militia service in any capacity that the President shall declare to be noncombatant."

2506. Powers of the Congress and the States over the Militia.—The Congress shall have 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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Art. I, sec. 8, Constitution of the United States.

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Notes of Decisions.

Militia power and Army power.—The militia power reserved to the States by the above clause is not to be confounded with the power conferred upon Congress to raise armies. There was left under the jurisdiction of the States undelegated the control of the militia to the extent that such control was not taken away by the exercise by Congress of the power to raise armies. Selective Draft Law Cases (1918), 245 U. S. 366.

Organization and government of militia. The Military Code of Illinois (act Ill. May 28, 1879 (Laws 1879, p. 192]), for the en. rollment, organization, and government of the State militia, is a valid exercise or the police power, and is not unconstitutional as encroaching upon the power of Congress,

under this clause, or as falling within the prohibition of art. 1, sec. 10, that no State shall, without the consent of Congress, keep troops in time of peace; the provisions of art. 11, secs, 5, 6, of such Military Code, forbidding unauthorized bodies of men to associate themselves together as a military company or orgapization, or to drill or parade with arms in any city or town. Presser v. State (1886), 6 Sup. Ct. 580, 116 U. S. 252, 29 L. Ed. 615.

The right of control of the militia by the States and their right to legislate regarding the militia has been fully recognized by the courts; both rights being concorrent with that of the Congress within constitutional limitations to legislate regarding it and its control, the right of the State !

yielding to the superior right of Congress. Alabama Great Southern R. Co. v. U. S. (1914), 49 Ct. CI. 522.

The governor of a State has no power to depose an officer, or interfere with the organization of a regiment after ich officer or regiment is mustered into service of the United States. (1862) 10 Op. Atty. Gen. 279.

This clause does not confer on Congress the power to designate by law a person to fill a military office, since this would be in direct conflict with the power of appointment given the President by Const. art. 2, sec. 2. (1884) 18 Op. Atty. Gen. 18, 26.

When State militia organizations with officers commissioned by the governor are mustered into United States service, the governor thereafter has no authority to remove them. (1898) 22 Op. Atty. Gen. 223,

The Military Code (act Di. May 28, 1879), which provides for the organization of the State militia, does not violate any provision of the State or Federal Consti. tution, and is not repugnant to any act of Congress as to the relative powers and authority of Congress and the States over the militia. Dunne v. People (1879), 94 III. 120, 34 Am, Rep. 213.

By the Constitution of the United States, the power to determine who shall compose the militia is vested in Congress; and after it has been exercised by Congress, a State legislature can not constitutionally provide for the enrollment of any other persons in the militia. Opinion of Justices (1859), 80 Mass. (14 Gray) 614. See, also, Tyler v. Pomeroy (1864), 8 Allen (Mass.) 480.

The only instance where governmental powers may be exercised by the United States is when the militia shall be employed in the service of the United States. At all other times the whole government of

the militia is within the province of the State, and therefore any legislation which the State may adopt relating to the goyernment of the militia in nowise contracts powers conferred upon Congress, as long as it does not infringe upon the method of organization. People v. Iill (1891), 59 Hun, 624, 13 N. Y. Supp. 637; judgment affirmed (1891), 126 N. Y. 497, 27 N. E. 789.

Under R. S. 1630, which provides that * the militia of each State shall be arranged into divisions, brigades, regiments, battalions, and companies, as the legislature of the State may direct," a State legislature had power to provide for the disbanding of Organized Militia companies, People v. Hill (1891), 126 N. Y. 497, 27 N. E. 789.

Power of governing the militia, given by this clause, is of a limited nature, and confined to the objects specified, and in all other respects and for all other purposes the militia are subject to the control and government of their respective States. Ansley v. Timmons (S. C. 1825), 3 McCord, 329.

The duties of the National Guard being defined by the military act (acts 29th Leg. Tex.), by which the governor is alone authorized to prescribe regulations, in the ab

of proof that the governor had adopted and promulgated the United States Army Regulations as governing the State militia, such regulations are not applicable to the militia. Manley v. State (Tex. Cr. App. 1911), 137 S. W. 1137.

The power of commanding the service of the militia in times of insurrection and invasion is a natural incident to the duties of superintending the common defense, and of watching over the Internal peace of the country, and was wisely vested in Congress by the framers of the Constitution. Griner (1803), 16 Wis. 431.


In re


2507. State troops.-No State shall maintain troops in time of peace other than as authorized in accordance with the organization prescribed under this

Sec. 61, act of June 3, 1916 (39 Stat. 198). Sec. 10, Art. I of the Constitution of the United States, provides that "No State shall, without the consent of Congress,

keep Troops, or Ships of War in time of peace."

2508. State police.-- * * Provided further, That nothing contained in this Act shall prevent the organization and maintenance of State police or constabulary. Sec. 61, act of June 3, 1916 (39 Stat. 198).

2509. Naval Militia. The provisions of this Act in respect to the militia shall be applicable only to militia organized as a land force and not to the Naval Militia, which shall consist of such part of the militia as may be prescribed by the President for each State, Territory, or District: Provided, That each State, Territory, or District maintaining a Naval Militia as herein prescribed

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may be credited to the extent of the number thereof in the quota that would otherwise be required by section sixty-two of this Act. Sec. 117, act of June 3, 1916 (39 Stat. 212).

2510. Ancient privileges of militia organizations.-Any corps of Artillery, Cavalry, or Infantry existing in any of the States on the passage of the Act of May eighth, seventeen hundred and pinety-two, which by the laws, customs, or usages of said States has been in continuous existence since the passage of said Act, under its provisions and under the provisions of section two hundred and thirtytwo and sections sixteen hundred and twenty-five to sixteen hundred and sixty, both inclusive, of title sixteen of the Revised Statutes of eighteen hundred and seventy-three, and the Act of Jannary twenty-first, nineteen hundred and three, relating to the militia, shall be allowed to retain its ancient privileges, subject, nevertheless, to all duties required by law of militia:

Sec. 63, act of June 3, 1916 (39 Stat. 198).

R. S. 232, and R. S. 1625-1660, were repealed by sec. 25 of the militia act of Jan. 21, 1903 (32 Stat. 780). 2511. Old militia organizations.

Provided, That said organizations may be a part of the National Guard and entitled to all the privileges of this Act, and shall conform in all respects to the organization, discipline, and training of the National Guard in time of war: Provided further, That for purposes of training and when on active duty in the service of the United States they may be assigned to higher units, as the President may direct, and shall be subject to the orders of officers under whom they shall be serving. Sec. 63, act of June 3, 1916 (39 Stat. 198).

2512. Rules and regulations for militia.-The President shall make all necessary rules and regulations and issue such orders as may be necessary for the thorough organization, discipline, and government of the militia provided for in this Act. Sec. 118, act of June 3, 1916 (39 Stat. 213).

2513. Composition of the National Guard.The National Guard shall consist of the regularly enlisted militia between the ages of eighteen and forty-five years organized, armed, and equipped as hereinafter provided, and of commissioned officers between the ages of twenty-one and sixty-four years. Sec. 58, act of June 3, 1916 (39 Stat. 197).

This section, with other sections of said act, principally secs. 60, 63, 68, 82, 91, set forth elsewbere in this volume, superseded sec. 3, Act of Jan, 21, 1903 (32 Stat. 775), as amended by Act of May 27, 1908 (35 Stat. 309).

Notes of Decisions.

Organization.-The terms "National Guard" or Organized Militia," as used in act Mar. 2, 1907 (34 Stat. 1175), embrace the whole of the militia organized under the laws of the States or Territories, whether intended for land or naval service, and are not restricted to such portions thereof as are intended for land service only. (1907) 26 Op. Atty. Gen. 303.

Powers of the States.--The Military Code (act ni. May 28, 1879), which provides for the organization of the State Militia, does not violate any provision of the State or Federal Constitution, and is not repugnant to any act of Congress as to the relative

powers and authority of Congress and the States over the militia. Dunne v. People (1879), 94 Ill. 120, 34 Am. Rep. 213.

Under R. S. 1630, which provides that "the militia of each State shall be ar: ranged into divisions, brigades, regiments, battalions, and companies, as the legislature of the State may direct," a state leg. islature had power to provide for the disbanding of Organized Militia companies. People v. Hill (1891), 126 N. Y. 497, 27 N. E. 789.

The provision of the Military Code tbat the commander in chief shall have power to disband companies of the National Guard

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whenever, in his judgment, the efficacy of suit for the collection of the fines to be
the State force will be tbereby increased, brought in the name of the State for the
is not in conflict with Const, art. 1, sec. 8, use of his company-the fine is not to be
empowering Congress to call forth the imposed by a militia officer, but by the
militia, and provide for their government court before which the action is brought ;
while in the service of the United States. and the soldier may prove before the court
People v. Hill (Sup. 1891), 13 N. Y. Supp. that he had a sufficient excuse for not at-
186 ; judgment affirmed (1891), 126 N. Y. tending encampment. State v. Ryan
497, 27 N. E. 789.

(1897), 69 N. W. 1123, 101 Iowa, 18.
Oficers.--The office of colonel of Volun- Minors.—" If a military tribunal has
teers in the military service of the United jurisdiction to try a person charged with an
States, as now organized, is not an office offense against military law, the civil
in the militia. Kerr v. Jones (1862), 19 courts can not interfere by writ of habeas
Ind. 351.

corpus." Ex parte Dostal (Dist. Ct. N. D.
Consolidation.--The governor of the State, Ohio, Aug. 15, 1917), 243 Fed. Rep. 664,
as commander in chief of the military War Dept. Bull. 67, Nov. 30, 1917.
forces of the State, has power to consoli- Enlistment in the National Guard of a
date companies and regiments. People v. minor under the age of 18 years is not
Ewen (N. Y. 1859), 17 How. Prac. 375. void, but only voidable at the instance of

Regulations and discipline. -Under Mc- the parent. Where the parent had knowl-
Clain's Code, Iowa, sec. 1572, providing edge of such enlistment two months before
that the discipline of the State National the minor became 18 years of age, and
Guard shall conform to the regulations for three months before his induction into the
the government of the Army of the United military service of the United States, as a
States, except as otherwise provided; and member of the National Guard, under secs.
sec. 1585, providing that

every soldier

57 and 58 of the national defense act (39 absent without leave from encampment Stat. 185). release can not be obtained. shall be fined $2 for each day of absence, Reed v. Cushman, 251 Fed. 872.

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2514. Organization of the National Guard.--Except as otherwise specifically provided herein, the organization of the National Guard, including the composition of all units thereof, shall be the same as that which is or may hereafter be prescribed for the Regular Ariny, subject in time of peace to such general exceptions as may be authorized by the Secretary of War. And the President may prescribe the particular unit or units, as to branch or arın of service, to be maintained in each State, Territory, or the District of Columbia in order to secure a force which, when combined, shall form complete higher tactical units. Sec. 60, act of June 3, 1916 (39 Stat. 197).

Provided, That the National Guard of any State, Territory, and the District of Columbia may include such detachments or parts of units as may be necessary in order to form complete tactical units when combined with troops of other States. Sec. 36, act of June 4, 1920 (41 Stat. 781), amending sec. 60, act of June 3, 1916 (39 Stat. 197).

For the purpose of maintaining appropriate organization and to assist in instruction and training, the President may assign the National Guard of the several States and Territories and the District of Columbia to divisions, brigades, and other tactical units, and may detail officers either from the National Guard or the Regular Army to command such units: Provided, That where complete units are organized within a State, Territory, or the District of Columbia the commanding officers thereof shall not be displaced under the provisions of this section. Sec. 64, act of June 3, 1916 (39 Stat. 198).

2515. Reorganization after the World War.-In the reorganization of the National Guard and in the initial organization of the Organized Reserves, the names, numbers, and other designations, flags, and records of the divisions and subordinate units thereof that served in the World War between April 6, 1917, and November 11, 1918, shall be preserved as such as far as practicable. Subject to revision and approval by the Secretary of War, the plans and regulations

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