Also known as: militia clause · Article I Section 8 Clauses 15-16
Written by attorneys — see sources below.
The provisions of Article I, Section 8 of the Constitution that authorize Congress to organize, arm, and discipline the militia and to call the militia into federal service for executing federal laws, suppressing insurrections, and repelling invasions. These clauses permit Congress to authorize the President to order National Guard units into federal service for training outside the United States even without a national emergency and without the consent of the governor of the home state.
Governor Mohan Malhotra activated the State A National Guard medical unit to staff rural clinics after a pandemic surge. President Hart, acting under a federal statute, directed the unit into federal service for joint field-hospital exercises abroad. Malhotra sued to block the order, claiming state needs required his consent. The court denied relief because the Militia Clauses allow federalization for training without gubernatorial approval.
Marco Marquez, a District resident, challenged a handgun ban by arguing that the Second Amendment protects an individual right tied to militia service. The government responded that the Militia Clauses limit the term to organized state forces subject to federal regulation. The Court held that the clauses presuppose an existing unorganized militia of able-bodied citizens while confirming Congress's power to organize and call forth that body.
The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for one-year periods. District of Columbia law also requires residents to keep their lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device unless they are located in a place of business or are being used for lawful recreational activities. Respondent Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of functional firearms within the home. The District Court dismissed respondent's complaint. The Court of Appeals for the District of Columbia Circuit reversed, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense. The Court of Appeals directed the District Court to enter summary judgment for respondent. The Supreme Court granted certiorari.
View caseNo. The Militia Clauses permit Congress to authorize the President to order Guard units into federal service for training abroad even without a national emergency and without gubernatorial consent.
Federal authority prevails. State disaster response obligations do not override the constitutional power to federalize Guard units for training once Congress has authorized the call-up.
No. The clauses allow federal service for training purposes without any emergency declaration, as confirmed by the dual-status structure of the National Guard.
The clauses presuppose an existing body of able-bodied citizens while granting Congress power to organize and call forth that body. The Second Amendment uses the same term but protects an individual right independent of formal enrollment.
…view of the militia, stating that “[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, §8, cls. 15–16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment,…