How many times is the term militia, mentioned throughout the whole of the US Constitution;
The word appears six times. Four mentions in the body of the Constitution and twice in the Bill of Rights.
what roles, duties, obligations, and powers are prescribed to the individual states as a whole;
The states are charged with the appointment of militia officers and implementing the organization and training regimen established by Congress.
what roles, duties, obligations, and powers are prescribed to the national government?
Congress has sole authority to prescribe the means of calling up and enrolling and manner of organizing the citizens as militia and establishing the training regimen to be used by the states. Congress possesses the power to federalize whatever state militias it deems necessary to respond to certain dangers to the federal government. Congress also possesses the power to prescribe how the militia shall procure their arms and what types of arms are to be mustered with.
There are specific circumstances under which Congress and the President directly control the militia. These distinctions are quite important for the division of militia command and control. They are in fact,
strict limits of federal power.
Congress possesses the power to "govern" the militia but
only "such part of them as may be employed in the service of the United States".
Similarly, the President is of course Commander in Chief of the militia but not all the time . . . He can directly command, "the militia of the several States," but
only "when called into the actual service of the United States".
This reading follows the canon of statutory interpretation of
expressio unius est exclusio alterius ("the express mention of one thing excludes all others") the authority of Congress "to govern," and the President to be CiC,
only begins when the militia are formally called for service by Congress for duty to the nation. That power is limited further to only the
part in actual service. That would stop Congress calling to service only say the Boston companies and having the entirety of the Massachusetts militia falling under Congressional control or calling up one state's militia and then all the states' militias falling under the control of Congress.
All this leads to perhaps a stupid question:
What constitutional authority does Congress actually have to dictate to a private citizen, 1), not enrolled in his state's militia, and 2), his state having no part of its militia called into actual service or employed in service of the nation, that only certain weapons are permitted by law?
It seems to me, again, using the rule of
expressio unius est exclusio alterius ("the express mention of one thing excludes all others"), a private citizen and his personal arms are twice removed from having any federal authority being brought to bear upon him (under the auspices of militia regulation).
It seems to me that the "unorganized militia" of the US Code are immune by direct exclusion from control by Congress and the President. The private citizen and his personal arms are only directly addressed in the 2nd Amendment, "the right of the people to keep and bear arms, shall not be infringed."
Additionally and proving my point, if suspected of committing a, "capital, or otherwise infamous crime," the unorganized militia are afforded the Grand Jury protections of the 5th Amendment, but,
when in actual service in time of war or public danger; . . . . an enrolled, active militia member would be subject to military law and court martial.
Note that there is no distinction stated for actual service of or employment by the United States. It seems that even if only called up / employed
by their state, they are subject to
federal military law.
Interesting. . .
