U.S. and Texas Law on Independent Militias
Our duty as citizens
Most American citizens are aware that the U.S. Constitution guarantees
certain rights and limits the powers of government. However, it also imposes
certain duties, not only on organs of government, but on each citizen. One of
these duties is to function as members of the Militia, and the state has the
duty to organize and train citizens to so serve.
The U.S. Constitution provides for this in Article I, Section 8:
Congress shall have power ...
To provide for calling forth the Militia to execute the
Laws of the Union, suppress Insurrections and repel Invasions;
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;
The Framers contemplated that the citizens who compose the Militia would
provide their own weapons, which is reflected in the Second Amendment:
A well-regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be
It is important to understand that the prevailing practice at the time the
Constitution was adopted was for people in each locality to organize as
independent local militias and to train themselves. The only change the Framers
sought to make was to make this organization and training more systematic, along
the model of Switzerland. They never imagined that future governments might try
to restrict the local organization and training of independent militias by
contending that people had the right to assemble and the right to keep and bear
arms, but not to combine the two rights. To them that would have seemed absurd.
U.S. legislation on the Militia
In 1792 President Washington tried to get Congress to fully implement the
constitutional requirement for organizing and training the Militia, but
Congress, wanting to avoid the expense imposed on the states, only agreed to
pass a law that required every able-bodied [free] male to keep a "musket or
firelock". This was the Militia Act of 1792. By failing to require
organization and training, it laid the basis for the decline of the Militia
In 1903, the Militia Act of 1792 was superseded by the Dick Act, which
established the National Guard system, and made a distinction between the "organized"
and "unorganized" Militia, reflecting the attitude that the Powers
that Be didn't want most of the people to get organized as independent militias,
despite the support for universal military training from most U.S. Presidents up
to the administration of Harry Truman.
The Dick Act is encoded in 10 USC:
United Stated Code (USC)
TITLE 10--ARMED FORCES
Section 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
- (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.
Section 312. Militia duty: exemptions
- (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, Puerto Rico, and the Canal Zone.
- (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) Workers employed in armories, arsenals, and naval shipyards of the
- (7) Pilots on navigable waters.
- (8) Mariners in the sea service of a citizen of, or a merchant in, the
- (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.
TITLE 32--NATIONAL GUARD
Section 313. Appointments and enlistments: age limitations
- (a) To be eligible for original enlistment in the National Guard,
a person must be at least 17 years of age and under 45, or under 64 years of age
and a former member of the Regular Army, Regular Navy, Regular Air Force, or
Regular Marine Corps. To be eligible for reenlistment, a person must be under 64
years of age.
- (b) To be eligible for appointment as an officer of the National Guard, a
- (1) be a citizen of the United States; and
- (2) be at least 18 years of age and under 64.
It should be understood that these definitions apply only to the Militia
that is subject to call-up by the federal government, and states may require
other people to perform militia duty, with different age ranges and exemptions.
Texas law on the Militia
The Texas Constitution once had a strong provision regarding militias:
Article 16. Section 46.
The Legislature shall provide by law for organizing and
disciplining the militia of the State, in such manner as they shall deem
expedient, not incompatible with the Constitution and Laws of the United States.
This section was deleted. The effect of this is that such authority reverts
back to local communities.
Present statutes are encoded in Texas Government Code Chapter 431:
Subchapter A. General Provisions
In this chapter:
(1) "Reserve militia" means the persons liable to serve, but not
serving, in the state military forces.
(2) "State militia" means the state military forces and the
(3) "State military forces" means the Texas National Guard, the
Texas State Guard, and any other active militia or military force organized
under state law.
(4) "Texas National Guard" means the Texas Army National Guard and
the Texas Air National Guard.
431.010. Organization Prohibited
(a) Except as provided by Subsection (b), a body of persons other than the
regularly organized state military forces or the troops of the United States may
not associate as a military company or organization or parade in public with
firearms in a municipality of the state.
(b) With the consent of the governor, students in an educational institution
at which military science is a prescribed part of the course of instruction and
soldiers honorably discharged from the service of the United States may drill
and parade with firearms in public.
(c) This section does not prevent a parade by the active militia of another
state as provided by law.
Subchapter D. Texas State Guard
431.051. Supplemental Militia
To provide militia strength for use by the state as a supplement to the
Texas National Guard, the Texas State Guard exists as part of the state militia
under the Second Amendment to the United States Constitution and a defense force
under 32 U.S.C. Section 109.
Subchapter F. Service and Duties
431.081. Persons Subject to Military Duty; Persons Not
Eligible to Enlist
- (a) A person is subject to military duty if the person is:
- (1) able-bodied;
- (2) a citizen or a person of foreign birth who has declared an intent to
become a citizen;
- (3) a resident of the state;
- (4) at least 18 and not more than 60 years of age; and
- (5) not exempt under Subsection (b) or (c) or United States law.
- (b) A person is exempt from military duty, except in case of war,
insurrection, invasion, or imminent danger of war, insurrection, or invasion if
the person is:
- (1) the lieutenant governor;
- (2) a member or officer of the legislature;
- (3) a judge or clerk of a court of record;
- (4) a head of a state agency;
- (5) a sheriff, district attorney, county attorney, county tax
assessor-collector, or county commissioner;
- (6) a mayor, council member, alderman, or assessor and collector of a
- (7) an officer or employee of the Texas Department of Corrections, a state
hospital or special school, a public or private hospital, or a nursing home;
- (8) a member of a regularly organized and paid fire or police department in
a municipality, except that a person is not relieved of military duty by joining
such a department;
- (9) a minister of the gospel exclusively engaged in that calling; or
- (10) a person who conscientiously scruples against bearing arms.
- (c) A mentally disabled person, vagabond, confirmed alcoholic, narcotics
addict, or a person convicted of an infamous crime is exempt from military duty
regardless of circumstances.
Now, what about that Section 431.010 prohibiting military companies or
organizations or parades within municipalities? It clearly expresses hostility
to independent local militias within municipalities, but it has no penalties,
and does not apply to rural areas. It's main intent seems to be to discourage
local officials from calling up the militia.
The only statutes which local officials might invoke against a militia
muster within a municipality would be those against exhibiting a firearm in a
way that "alarms" the public. However, centuries of common law makes
it clear that merely carrying firearms is not to be considered "alarming".
The arms must actually be brandished toward someone in a threatening manner.
This would not prevent arrests on this ground, of course, but successful
prosecution is unlikely if the courts follow the law and the Constitution.
Some of these points are more fully discussed in 29 Tex. Jur., Sections 4
and 5, and in 12 Tex. Jur. 3d., Sections 12-28.
The only significant case law involving this statute is a federal case,
Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan (D.C. 1982) 543
F.Supp. 198, in which the plaintiff invoked the state statute in a federal suit
for injunction against the defendant. The injunction was granted, and the judge
took advantage of the case to write an opinion on the interpretation of the
state statute. However, that opinion has no stare decisis effect,
because this was not an appeal, nor was the judgement appealed. The injunction
was properly granted under common law against intimidation, but a federal judge
had no real business interpreting state law. However, it is indicative of how
that judge might decide the constitutional issues in other cases. The case does,
however, underscore the importance of distinguishing between private
associations and public militias, and of making sure that any constitutional
militias that may be organized take care not to take on the attributes of a
private group. Too many people, including authorities, have examples in mind
like the KKK, and we must always make sure to distance ourselves from such
partisan organizations, and, indeed, indicate that the suppression of such
groups is one of the things that a real militia might be called up to do.
There is another statute that arguably involves the Militia, the Texas
Disaster Act of 1975, which has among its purposes, "providing an emergency
management system embodying all aspects of predisaster preparedness and
postdisaster response. See 12 Tex. Jur. 3d. Sections 51-53. If fully
implemented, the organization of local militia units seems to be required under
Present U.S. and Texas law clearly fail to implement the requirements for
organizing and training the Militia established by the Framers. However, we must
also recognize that this failure goes all the way back to 1792, and that such
organizing and training are, therefore, left to the people themselves, in the
form of independent local militias, which they have a constitutional duty to
maintain in a high state of preparedness, even if they get little support from
the authorities, and indeed, especially if they get opposition from the