Could a 1995 Idaho ballot initiative recognize private 'volunteer militia organizations' as part of the state militia and shield them from legislative regulation, gubernatorial oversight, and adjutant general control?
Plain-English summary
Chuck Dalton filed an initiative on September 18, 1995 that would have rewritten Idaho Code § 46-102, the basic militia statute, to formally recognize "Volunteer Organizations" mentioned in Idaho Constitution Article 14, section 2 as part of the state's organized militia. The initiative would have:
- Defined the militia as all able-bodied citizens 18 and over who are U.S. citizens and Idaho residents (without the conscientious-objector exemption already in Article 14, section 1).
- Declared a "volunteer organization" to be any group registering with its county commission, the Adjutant General, and the Governor's office and adhering to the organizational structure and code of conduct of "the regulations for the . . . armies of the United States."
- Defined "effectual encouragement" in Article 14, section 2 as a prohibition on any legislature passing "any law which would inhibit any such volunteer organization from registering, enrolling citizens, training, or conducting any other activities normal to such volunteer organization or militia."
- Forbidden "discrimination" as to the size or composition of volunteer organizations or their leaders, except that the Governor could approve elected officers when calling the unit into service or refuse to call it.
- Defined "organized militia" to include these volunteer organizations alongside national-guard-mobilized units.
Deputy AG Thomas F. Gratton, writing for AG Alan G. Lance, concluded the initiative was unconstitutional in several respects.
First, by including volunteer organizations within the "organized militia" while purporting to insulate them from legislative regulation through the redefined "effectual encouragement," the initiative tried to override Article 14, section 2's grant of authority to the legislature to "provide by law for the enrollment, equipment and discipline of the militia."
Second, the prohibition on "discrimination" as to size, composition, and leader selection conflicts with Article 14, section 3's express vesting of officer commissioning in the Governor and the legislature's role in providing the manner of selection.
Third, by exempting volunteer organizations from gubernatorial oversight until they were called into service, the initiative crossed Article 4, section 4's designation of the Governor as commander-in-chief of all military forces of the state.
Fourth, the initiative left intact the existing statutes vesting the Adjutant General with command, custody of military property, and supervision of training (Idaho Code §§ 46-111, 46-112), creating an internal contradiction even within the statute the initiative would create.
The opinion noted Nevada has a similar constitutional provision (Article 12, section 1) recognizing volunteer corps, and Nevada's statutory implementation (Nev. Rev. Stat. Ann. §§ 412.026, 412.126) treats volunteer organizations as part of the militia subject to gubernatorial licensing. The Idaho initiative was different because it tried to extract volunteer organizations from the normal chain of state authority.
The conscientious-objector omission was a smaller drafting issue: Article 14, section 1 expressly exempts persons with conscientious scruples against bearing arms from peacetime militia duty, requiring instead a school-fund payment. The initiative's redefined § 46-102 omitted that exemption. A court would likely read the constitutional exemption back in, but the petitioner could fix the drafting to be explicit.
Currency note
This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What does Article 14, section 2 actually require?
It requires the legislature to "provide by law for the enrollment, equipment and discipline of the militia, to conform as nearly as practicable to the regulations for the government of the armies of the United States, and pass such laws to promote volunteer organizations as may afford them effectual encouragement." The opinion read this as a positive grant of legislative authority to regulate the militia, including volunteer organizations, not as a constraint on that authority. The initiative read "effectual encouragement" as forbidding any regulation; the AG treated the petitioner's reading as inverting the constitutional text.
Why does Nevada offer a useful comparison?
Nevada's Article 12, section 1 uses similar language: the legislature "shall provide by law for organizing and disciplining the Militia of this State, for the effectual encouragement of Volunteer Corps and the safe keeping of the public arms." Nevada's implementing statutes (Nev. Rev. Stat. Ann. §§ 412.026, 412.126) treat volunteer corps as part of the Nevada militia, licensed by the Governor and subject to legislative control. So the constitutional concept of "volunteer organizations" within the militia is well-established and constitutional, but only when the volunteer organizations operate within the state's military chain of command, not as autonomous units.
What was the autonomy problem with the initiative?
The initiative's subsection 4 said no discrimination could be made as to the "size or composition" of volunteer organizations or their leaders, "except when called to service by the Governor." That is to say: until the Governor called them up, the volunteer organizations would have full autonomy over their structure and leadership, and even when called up, the Governor's only choice would be to accept the elected officers or refuse to call the unit. The Idaho Constitution's Article 14, section 3 says the opposite: the Governor commissions all militia officers, and the legislature provides the manner of their selection. The initiative essentially tried to create a class of military units the Governor could not appoint, control, or modify.
What about the conscientious objector exemption?
Idaho Constitution Article 14, section 1 says "no person having conscientious scruples against bearing arms, shall be compelled to perform such duty in time of peace. Every person claiming such exemption from service, shall, in lieu thereof, pay in the school fund of the county of which he may be a resident, an equivalent in money, the amount and manner of payment to be fixed by law." The initiative's new § 46-102 omitted this. A court would likely read the constitutional exemption into the statute, but the petitioner could clean up the drafting to track the Constitution's text.
Could a future legislature repeal the initiative?
Yes. The opinion made the same point made elsewhere about initiative legislation: it has the same force as ordinary legislation but no greater force, and one legislature (or initiative) cannot bind future legislatures. Wagner v. Secretary of State, 663 A.2d 564 (Maine 1995) and People's Advocate, Inc. v. Superior Court, 226 Cal. Rptr. 640 (Ct. App. 1986) confirm this rule for initiatives. So even if the initiative passed and survived constitutional challenge, the next legislature could amend or repeal it under its Article 14, section 2 authority.
Background and statutory framework
The Idaho militia structure has three layers under Idaho Code § 46-103: the National Guard (federally recognized, equipped, and partly federally controlled), the organized militia (any portion of the unorganized militia called into service by the Governor that is not federally recognized), and the unorganized militia (everyone else who meets militia eligibility under Article 14, section 1). The Adjutant General serves as commanding general of the state's military forces under Idaho Code § 46-111 and is the custodian of all military records and property under § 46-112.
The 1995 initiative was filed in a political climate of heightened interest in private militia organizations following the 1995 Oklahoma City bombing and broader debates about federal authority. The petitioner appears to have been trying to use Article 14, section 2's "volunteer organizations" language to give private armed groups some kind of formal constitutional standing while keeping them outside the state's normal military chain of command. The AG's response showed why that combination is constitutionally impossible: volunteer organizations can be recognized within the militia, but once they are within the militia they are subject to the legislature's regulatory authority and the Governor's command authority.
Citations
- Idaho Const. art. 4, § 4 (Governor as commander-in-chief)
- Idaho Const. art. 14, §§ 1, 2, 3 (militia provisions)
- Idaho Code §§ 34-1809, 46-101, 46-102, 46-103, 46-104, 46-111, 46-112
- Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988)
- Coeur d'Alene Indus. Park Property Owners Ass'n v. City of Coeur d'Alene, 108 Idaho 843, 702 P.2d 881 (Ct. App. 1985)
- Greenwade v. Idaho State Tax Com'n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991)
- Wagner v. Secretary of State, 663 A.2d 564 (Maine 1995); People's Advocate, Inc. v. Superior Court, 226 Cal. Rptr. 640 (Ct. App. 1986)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C101395_d.pdf
Original opinion text
October 13, 1995
Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
Re: Certificate of Review; Initiative Regarding Volunteer Militia Organizations
Dear Mr. Cenarrusa:
The proposed initiative concerns the relationship and inclusion of volunteer organizations into the militia of the State of Idaho. The proposed initiative is based upon art. 14, sec. 2, Idaho Constitution.
The proposed initiative would repeal existing Idaho Code § 46-102 and add a new section defining the state militia as all able-bodied citizens age 18+ who are U.S. citizens and Idaho residents, treating "volunteer organizations" registered with the county, governor, and adjutant general as part of the militia, and limiting the legislature's regulatory authority over them.
The Idaho Constitution, aside from art. 14, sec. 2, has several provisions which are relevant to the creation and regulation of the state militia. Art. 4, sec. 4 makes the governor commander-in-chief of the military forces of the state. Art. 14, sec. 3 provides that "All militia officers shall be commissioned by the governor, the manner of their selection to be provided by law."
The definition does not quite comport with art. 14, sec. 1, which sets out an exception from service based upon conscientious objection. The definition proposed by the initiative does not contain this exemption.
In general, there is no constitutional problem with providing for the registration and organization of volunteer organizations which may be included in the militia. Nevada has a similar constitutional provision (Art. 12, sec. 1, Nevada Constitution), and Nevada provides that such volunteer organizations are part of the Nevada militia, along with the national guard, and are licensed by the Governor.
However, there are a number of constitutional problems with the proposed initiative. First, the proposed initiative attempts to define "effectual encouragement" to mean "that the state Legislature shall not pass any law which would inhibit any such volunteer organization from registering, enrolling citizens, training, or conducting any other activities normal to such volunteer organization or militia." Because these volunteer organizations are part of the militia under the initiative, they are subject to any laws passed by the legislature for the enrollment, equipment and discipline of the militia. To the extent that the proposed initiative seeks to prohibit the legislature from passing such laws, it is unconstitutional.
Second, subsection 4 of the proposed initiative requires that "no discrimination may be made as to the size or composition of such volunteer organizations, or to its leaders." This provision is clearly unconstitutional. Art. 14, sec. 3, states that "All militia officers shall be commissioned by the governor, the manner of their selection to be provided by law, and may hold their commissions for such period of time as the legislature may provide." Thus, it is the governor who has the authority to commission the officers of the militia, including these volunteer organizations.
Under the proposed initiative, volunteer organizations would be able to organize and train as a military unit, yet not be subject to any governmental control until called into service by the governor. However, art. 4, sec. 4 of the Idaho Constitution provides that the "governor shall be commander-in-chief of the military forces of the state." It was not the intent of the framers of the Idaho Constitution to have militia organizations organizing and training without any oversight by the governor and legislature. See Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988) (legislative acts and legislation by initiative are on equal footing and both are subject to same constitutional limitations).
The legislature, in title 46, Idaho Code, has already passed a set of laws governing the militia. Idaho Code § 46-111 states that the adjutant general is the commanding general of the military forces of the state. Idaho Code § 46-112 requires the adjutant general to be "the custodian of all military records and property of the national guard and organized militia."
The proposed initiative could not tie the hands of future legislatures to enact laws they are constitutionally empowered to enact. Wagner v. Secretary of State, 663 A.2d 564 (Maine 1995); and People's Advocate, Inc. v. Superior Court, 226 Cal. Rptr 640 (Ct. App. 1986).
In conclusion, as presently worded, the proposed initiative is unconstitutional. Under the proposed initiative, volunteer organizations would be able to organize and train without any oversight or interference from governmental authorities. However, the Idaho Constitution requires control of the state militia by the governor and through laws passed by the legislature.
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Chuck Dalton.
Sincerely,
ALAN G. LANCE
ATTORNEY GENERAL
Analysis by:
THOMAS F. GRATTON
Deputy Attorney General
Intergovernmental and Fiscal Law Division