Could the President, either directly, or by making a request to the governors, order up the unorganized militia for service within the
United States, without Congress changing the existing militia law?
If so ordered into service, would the President have authority to use
the unorganized militia for internal security measures, such as
guarding railroad lines, sealing the border, inspecting each and
every cargo container entering the United States? (I phrase the
question thusly because of the disputes concerning authority to send
militias overseas that came up in the aftermath of the
Spanish-American War.)
Anyone, including the President, governors, other officials, or even any individual aware of a threat, may call up persons for militia (there is no constitutional basis for the distinction "unorganized" -- militia are supposed to all be organized). The only issue is who has authority to penalize persons who don't respond to the call-up. That depends on statutes, federal and state, that provide for such penalties and process for enforcing them. That gets much more complicated.
The original common law standard was that anyone could call up militia, but if he attempted to impose penalties for failing to respond, he had to take the question to county court, where the judge and jury would decide whether there was a credible threat that justified a call-up, and decide on an appropriate penalty.
The Constitution does not, however, provide authority for sending militia beyond the borders without their individual consent. The militia that fought the Spanish-American War were volunteers.
Conscription into the Army is not a militia call-up. The alleged authority for the draft is the clause empowering Congress to "raise and support Armies", interpreted more broadly than the Founders intended.
This kind of thing is documented in various works on our site, linked from http://www.constitution.org/cs_defen.htm .
--Jon
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