The Constitution recognizes and permanently includes as part of its federal system only “the Militia of the several States”. It neither recognizes nor creates any “Militia of the United States” at all–because no such militia ever existed, and the Founding Fathers evidently desired that no such militia be formed. True, “the Militia of the several States” may be “call[ed] forth” by Congress “to execute the Laws of the Union, suppress Insurrections and repel Invasions”; “such Part of them as may be employed in the Service of the United States” for those purposes may be “govern[ed]” as Congress directs; and “[t]he President shall be Commander in Chief * * * of the Militia of the several States, when called into the actual Service of the United States”. Article I, Section 8, Clauses 15 and 16; and Article II, Section 2, Clause 1. But even when temporarily “call[ed] forth”, “govern[ed]“, and subjected to the President’s command “in[ ] the actual Service of the United States”, “the Militia of the several States” nevertheless retain their identities and natures as permanent State institutions. The Constitution authorizes neither Congress nor the President to do anything that detracts from, let alone contradicts, these identities and natures.
For that reason, the Constitution authorizes neither Congress nor the President to employ the Militia so as to attack, subvert, or in any other way undermine any State’s existence, powers and authority, or her “Republican Form of Government”–or to refuse to employ the Militia to protect those attributes. None of “the Militia of the several States” can be used, actively or passively, against any of “the several States”. – Dr. Edwin Vieira, Jr.