There are certain provisions not cited by you,
which are not without influence on my judgment, and to which I
call your attention. They will aid in defining what is meant by
'militia,' and in determining the respective powers of the
States and the Confederacy over them.
"The several States agree 'not to keep troops or ships of war in
time of peace.'[194] They further stipulate that, 'a
well-regulated militia being necessary for the security of a
free State, the right of the people to keep and bear arms shall
not be infringed.'[195]
"'That no person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or indictment
of a grand jury, except in cases arising in the _land_ or _naval
forces_, or in _the militia_ when in actual service in times of
war or public danger.'[196]
"What, then, are militia? They can only be created by law. The
arms-bearing inhabitants of a State are liable to become its
militia, if the law so order; but, in the absence of a law to
that effect, the men of a State capable of bearing arms are no
more militia than they are seamen.
"The Constitution also tells us that militia are not _troops_,
nor are they any part of the _land_ or _naval forces_; for
militia exist in time of peace, and the Constitution forbids the
States to keep troops in time of peace, and they are expressly
distinguished and placed in a separate category from land or
naval forces in the sixteenth paragraph above quoted; and the
words _land_ and _naval forces_ are shown by paragraphs 12, 13,
and 14, to mean the Army and Navy of the Confederate States.
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