Also known as: militias · citizen army · national guard
Written by attorneys — see sources below.
A body of citizens armed and trained for military service apart from the regular armed forces. The Constitution grants Congress power to organize, arm, and call the militia into federal service while reserving officer appointments and training to the states, and it places the militia under presidential command when federalized.
Mohan Malhotra, a member of the state militia called into federal service during a declared public danger, faces a capital charge in military court. Prosecutors proceed without a grand jury indictment. The Fifth Amendment exception applies directly because his militia status satisfies the constitutional condition for bypassing civilian grand jury requirements.
Melanie Morris commands a National Guard cyber unit that President Lang orders into federal service for overseas training under congressional authorization. Governor Reynolds objects and withholds consent. The federal order proceeds because Congress may direct such activation even absent a national emergency or gubernatorial approval.
Ming Ma leads a state militia unit that Congress has organized and armed under its constitutional authority. Federal standards now govern training and discipline for the portion called into national service. The state retains only the appointment of officers and non-federalized training functions.
Monica Morgan's Air National Guard squadron receives a presidential order placing it in federal service for joint exercises abroad. Once federalized, the unit operates under the President's authority as commander in chief. State objections do not alter the chain of command.
Marco Marquez keeps a handgun in his home for self-defense. State law attempts to ban such possession on the theory that the Second Amendment applies only during active militia duty. The individual right remains protected regardless of current militia enrollment status.
Mason McCarthy, while serving in the militia during peacetime, faces an infamous crime charge in civilian court. Prosecutors must obtain a grand jury indictment because the Fifth Amendment exception applies only when the militia is in actual federal service during war or public danger.
Joseph Hurtado was charged by an information filed in the Superior Court of Sacramento County with the murder of Jose Antonio Estuardo. The information was in the usual form and charged the crime with technical precision and in due legal language. It was filed after the defendant had been examined and committed by a magistrate, as required by the statute. The Constitution of California, adopted in 1879, provides that offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment. The Penal Code of the State, adopted in 1872 and in force at the time, contained provisions authorizing every person to be proceeded against criminally by indictment or by information, and specifying that an information is an accusation in writing presented by the district attorney after preliminary examination or waiver. Hurtado moved to set aside the information on the ground that it was not found or presented by a grand jury. The motion was overruled. He was arraigned, pleaded not guilty, and was put upon his trial. The jury returned a verdict of guilty of murder in the first degree, and judgment was pronounced sentencing him to be hanged. From this judgment Hurtado appealed to the Supreme Court of the State of California, which affirmed it. He then sued out a writ of error to the Supreme Court of the United States.
View caseNo. Congress may authorize the President to order Guard units into federal service for training outside the United States even without a national emergency or gubernatorial consent. Once federalized, the units fall under presidential command.
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The exception applies when militia members are in actual federal service during time of war or public danger. In all other circumstances, including peacetime militia duty, the grand jury protection remains in force.
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Congress may provide for calling forth the militia to execute federal laws, suppress insurrections, and repel invasions, and it may organize, arm, and discipline the militia while governing the portion employed in federal service.
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No. The right is individual and exists independently of active militia enrollment. It protects the ability to keep arms for self-defense in the home regardless of militia status.
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…to legislate with regard to morality . . . rather than confined to preventing demonstrable harms"); Holmes v. California Army National Guard , 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v.…