| Abstrakt: |
In Solorio v. United States, 483 U.S. 435 (1987), the Supreme Court held that the constitutionality of subjecting individuals to court-martial jurisdiction and military law turns solely on whether those individuals have a "military status. Although the Supreme Court never defined what it meant by "military status," lower courts have understood this rule to mean that Congress may subject everyone who is formally enrolled in the U.S. Armed Forces to military law at all times. Both the U.S. Court of Appeals for the Armed Forces and the U.S. Court of Appeals for the District of Columbia Circuit have upheld court-martialing military retirees for conduct unrelated to military service because active-duty retirees remain technically enrolled in the military, even though they have no continuing military duties except primarily to report for future service if called. This Article argues that these courts have misunderstood the Constitution's status-based test for military jurisdiction. The Constitution recognizes two military statuses, not one: a member of the regular forces (armies and navy) and a militiaman. Legally, the distinction between a member of the regular forces and a militiaman depends on the person's primary occupation. The primary occupation of a member of the regular forces is war (and preparation for war), while a militiaman has a civilian occupation but is subject to occasional military service. Consistent with this professionalism distinction, only members of the regular forces traditionally have been subject to military law based on their status as members of the military. Militiamen have been subject to military law only when in active service and, to a more limited degree, when in training. Notwithstanding their statutory classifications as members of the federal armed forces, reservists, Guardsmen, retirees, and most other civil-military hybrids are species of militiamen: they are individuals who lead primarily civilian lives but who are subject to occasional, temporary military service. As de facto militiamen, these individuals are subject to military law only when they are performing military service. At other times, the Constitution requires them to be treated as civilians and secures to them their full common-law rights, including the right of trial by jury. [ABSTRACT FROM AUTHOR] |
