| Abstrakt: |
The resurgence of private militias claiming the protection of the Second Amendment raises a startling question: is the United States a country without a legal monopoly on the use of force? Perhaps not. The constitutions of fortyeight states contain strict subordination clauses that declare, in one way or another, that "in all cases the military should be under strict subordination to, and governed by, the civil power." This strict subordination clause has attracted attention as part of efforts to regulate and prohibit private militias, but it has been largely neglected by legal scholarship. As a result, it remains unclear how well this anti-private militia reading of the clause is supported by legal history. This Article begins the necessary work of tracing the historical origins of civil-military "subordination" and its incorporation into the strict subordination clause. The history uncovered in this Article reveals the clause's roots in English anxieties over the memory of an independent standing army, its connection to the concept of imperium in imperio in the colonists' protests against British soldiers, and the unsuccessful push to include the clause in the Federal Constitution. Examining this history alongside the clause's Founding Era meaning and the Founding Generation's reaction to historical analogs to today's private militias confirms strong historical support for the anti-private militia reading. Ultimately, the strict subordination clause is a "sleeping giant" in state constitutions. [ABSTRACT FROM AUTHOR] |
