Amicus Curiae Brief — Steven M. Larrabee, Petitioner v. Carlos Del Toro, Secretary of the Navy, et al.

No. 22-1082

IN THE

Supreme Court of the United States

STEVEN M. LARRABEE,

Petitioner,

v.

CARLOS DEL TORO, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF PROFESSOR ROBERT LEIDER AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

DANIEL S. VOLCHOK

Counsel of Record

BRITTANY R. WARREN

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave. N.W.

Washington, D.C. 20037

(202) 663-6000

daniel.volchok@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................... iii

INTEREST OF AMICUS CURIAE............................... 1

INTRODUCTION .............................................................. 1

SUMMARY OF ARGUMENT ......................................... 3

ARGUMENT ....................................................................... 4

I.

THE FIFTH AMENDMENT PROHIBITS

SUBJECTING PART-TIME SOLDIERS TO

MILITARY LAW SOLELY BASED ON THEIR

AFFILIATION WITH THE ARMED FORCES ................ 4

A. The

Constitution

Distinguishes

Between Professional Forces And

Militia ...................................................................... 6

B. Part-Time

Citizen-Soldiers

Are

“Militia” And Traditionally Subject To

Military Jurisdiction Only When In

Actual Service ....................................................... 8

C. The Modern Equivalent Of The

Founding-Era Militia Are The Various

Military

Components

Of

Nonprofessional Soldiers ................................... 11

1.

Armed Forces Reserve ............................... 12

2.

Civilians Subject To Military

Service ........................................................... 14

3.

Fleet Marine Reserve ................................. 14

II. THE

DECISION

BELOW

ALLOWS

EXCESSIVELY

BROAD

MILITARY

JURISDICTION .............................................................. 18

ii

TABLE OF CONTENTS—Continued

Page

A. The D.C. Circuit’s Analysis Fails To

Recognize A Militia Status ................................ 18

B. The D.C. Circuit’s Historical Examples

Are Inapt .............................................................. 19

C. The Question Presented Warrants

Resolution In This Case ..................................... 21

CONCLUSION ................................................................. 22

iii

TABLE OF AUTHORITIES

CASES

Page(s)

City of Boerne v. Flores, 521 U.S. 507 (1997) .................. 6

Dunne v. People, 94 Ill. 120 (1879) .............................16-17

Ex parte Quirin, 317 U.S. 1 (1942) (per curiam) ............. 5

Goldman v. Weinberger, 475 U.S. 503 (1986) .................. 5

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46

(1988) .............................................................................. 5

Loving v. United States, 517 U.S. 748 (1996)................. 21

New York State Rifle & Pistol Association v.

Bruen, 142 S.Ct. 2111 (2022) ..................................... 19

Presser v. Illinois, 116 U.S. 252 (1886) .......................... 14

Reid v. Covert, 354 U.S. 1 (1956) ................................. 5, 21

Solorio v. United States, 483 U.S. 435 (1987) .......... 16, 19

United States ex rel. Toth v. Quarles, 350 U.S.

11 (1955) ....................................................................... 21

United States v. Miller, 307 U.S. 174 ............................. 17

CONSTITUTIONS AND STATUTES

U.S. Constitution

amend. V .................................................................. 7, 17

art. I, §6, cl. 2 ............................................................... 21

art. I, §8, cls. 12-14 ........................................................ 6

art. I, §8, cl. 14 ............................................................... 5

art. I, §8, cl. 15 ......................................................... 7, 15

art. I, §8, cl. 16 ............................................................. 11

art. I, §10, cl. 3 ............................................................... 7

iv

TABLE OF AUTHORITIES—Continued

Page

10 U.S.C.

§246 ............................................................................... 14

§688 ....................................................................13, 15-16

§802 ............................................................................... 20

§§885-886 ....................................................................... 5

§888 ................................................................................. 5

§7075 ............................................................................. 16

§8001 ............................................................................. 14

§8330 ............................................................................. 14

§8331 ............................................................................. 15

§8385 ........................................................................15-16

§9066 ............................................................................. 16

§9085 ............................................................................. 16

§10101 ..................................................................... 12, 14

§10141 ........................................................................... 12

§10142 ........................................................................... 12

§10151 ........................................................................... 13

§10154 ........................................................................... 13

§12301 ........................................................................... 13

§12306 ........................................................................... 13

50 U.S.C. §3802 .................................................................. 14

Selective Service Act Amendment, Pub. L. No,

65-210, 40 Stat. 955 (1918) ......................................... 14

OTHER AUTHORITIES

1 Blackstone, William, Commentaries on the

Laws of England (1893) ............................................ 10

Capua, J.V., The Early History of Martial Law

in England from the Fourteenth Century to

the Petition of Right, 36 Cambridge L.J. 152

(1977) ............................................................................ 10

v

TABLE OF AUTHORITIES—Continued

Page

1 Clode, Charles M., The Military Forces of the

Crown:

Their Administration and

Government (1869) ......................................9, 11, 19-20

Congressional Research Service, Defense Primer:

Reserve Forces (updated Jan. 17, 2023),

https://crsreports.congress.gov/product/pdf/

IF/IF10540 .............................................................12-13

Dicey, A.V., Introduction to the Study of the

Law of the Constitution (3d ed. 1889)........................ 9

Federalist No. 24 (Hamilton) ............................................. 8

Federalist No. 29 (Hamilton) ............................................. 8

Hale, Matthew, The History of the Common

Law of England (Charles Runnington ed.,

6th ed. 1820) ................................................................ 10

4 Hume, David, et al., The History of England

(1873) ............................................................................ 10

John S. McCain III: A Brief Navy Biography,

Naval History and Heritage Command,

Sept. 18, 2018, https://www.history.navy.

mil/browse-by-topic/people/profiles-in-duty/

profiles-in-duty-vietnam/john-s--mccain-iii/

john-s--mccain-iii--a-brief-navy-biography.html;............................................................................. 22

Leider, Robert, Deciphering the “Armed Forces

of the United States,” 57 Wake Forest L.

Rev. 1195 (2022) .....................................9, 11-12, 14, 16

vi

TABLE OF AUTHORITIES—Continued

Page

Letter from Samuel Adams to James Warren

(Jan. 7, 1776), in 3 The Writings of Samuel

Adams 250 (Harry Alonzo Cushing ed.,

1907) ............................................................................... 9

McCormack, Matthew, Embodying the Militia

in Georgian England (2015) ....................................... 9

Petition of Right, 1628, 3 Car., c. 10 (Eng.).................... 10

Proposals for Amending the Militia Act so as to

Establish a Strong and Well-Disciplined

National Militia (London, n.d. [1759?]) .................... 9

Rear Admiral Joseph Sestak Jr., https://

www.navy.mil/DesktopModules/ArticleCS/

Print.aspx?PortalId=1&ModuleId=692&Ar

ticle=2235968 (visited June 7, 2023) ......................... 22

Shane, Leo, Veterans in the 117th Congress, by

the Numbers, Military Times (Jan. 2, 2021)............ 22

5 Smith, Adam, An Inquiry into the Nature and

Causes of the Wealth of Nations (Soares ed.,

MetaLibri 2007) ...................................................... 8, 16

1 Smollett, T., Continuation of the Complete

History of England (1760) ........................................ 19

INTEREST OF AMICUS CURIAE

Robert Leider is Assistant Professor of Law at

George Mason University’s Antonin Scalia Law School.

His research focuses on the constitutional organization

of the military, the Second Amendment, the right of selfdefense, and the use of force by law enforcement. Professor Leider has written several recent articles on the

constitutional structure of the military, particularly how

the distinction that the Framers drew in the Constitution between “army” and “militia” applies today. These

articles have also discussed the implications of the

army/militia distinction for Congress’s power to subject

individuals to the military’s justice system.1

INTRODUCTION

If left undisturbed, the decision below will deprive

approximately 1.5 million Americans of their basic civil

liberty and fundamental constitutional rights. These

Americans, who live as civilians, may not claim their

right to trial by jury, they may be imprisoned for speaking ill of the President, and they may be ordered not to

display articles of religious observance such as a yarmulke. They will lose these rights for the rest of their

lives simply because they served their country in the

Armed Forces for more than 20 years. Worse, the rule

announced by the court of appeals would permit Congress to extend this sweeping military jurisdiction to

1

No counsel for a party authored this brief in whole or in part,

and no entity or person other than amicus curiae and his counsel

made a monetary contribution intended to fund the preparation or

submission of this brief. Counsel of record for the parties received

notice of amicus’ intent to file this brief at least 10 days prior to its

due date.

2

anyone nominally affiliated with the Armed Forces, including the inactive and retired reserve components.

This exercise of military jurisdiction is prohibited by

the Fifth Amendment to the Constitution, as understood

at the Framing. The Fifth Amendment recognizes two

different military statuses. The first status covers members of the “land or naval forces,” which, as originally understood, only included members of the regular forces.

The second military status covers nonprofessional soldiers (“militia”). Consistent with traditional AngloAmerican practice, the Fifth Amendment permitted

Congress to impose military law upon members of the

regular forces at all times. But nonprofessional soldiers

were subject to military jurisdiction only when they

were in training or in active service.

The decision below fails to recognize this critical distinction and erroneously treats Fleet Marine Reservists,

who are retirees of the regular forces, as if they remained professional soldiers. But Fleet Marine Reservists live primarily as civilians. In peacetime, they may

be subject to brief periods of training (which, in practice,

rarely if ever happens). Other than for training, they

may be recalled to active duty during war, national

emergencies, and other temporary periods. Because

regular Marines transition into a nonprofessional role

upon their retirement into the Fleet Marine Reserve,

the proper constitutional rule is that these retirees are

subject to military law only when in training or when on

active duty. At all other times, they should be subject

only to civilian law and thus should retain their full common-law rights.

3

SUMMARY OF ARGUMENT

The Fifth and Sixth Amendments require that criminal cases proceed according to the traditional requirements of common law. But the Fifth Amendment also

contains two military-related exemptions that were

well-established at the Framing: first, for “cases arising

in the land or naval forces,” and second, for cases arising

“in the Militia, when in actual service in time of War or

public danger.” At the time of the Framing, prevailing

British law applied military jurisdiction differently depending on whether a person was a professional soldier

(or sailor) or a nonprofessional militiaman. Professional

soldiers and sailors—those whose principal occupation

was in the military—were amenable to military law at

all times based on their status as members of the regular

forces. Militiamen, however, were subject to military

law only when called into active service. When not serving, militiamen lived as civilians and retained their full

common-law rights.

The Fifth Amendment adopts this traditional understanding. It permits Congress to apply military law to

members of the regular forces at all times. But it only

permits Congress to apply military law to members of

the militia when they are in actual service. When not in

actual service, militiamen must be treated as civilians.

The problem in this case is that, although Congress

statutorily defines Fleet Marine Reservists (like petitioner) to be part of the regular forces, their actual terms

of service closely match that of Founding-era militiamen. These retired Marines live as civilians and have

civilian jobs; their principal occupation is no longer in the

military. Like Founding-era militiamen (and unlike regular soldiers), they may be subject only to brief periods

of military training in peacetime. And like Founding-era

4

militiamen, they are highly limited in when they may be

called into active duty. Unlike the regular forces, retirees like petitioner do not remain on continual active

duty. Because petitioner’s regular military service

ended when he retired, the Fifth Amendment forbids

the application of military law when he is neither in

training nor in active service.

But under the D.C. Circuit’s decision here, petitioner and others like him could be subjected to military

jurisdiction—meaning a significant curtailment of their

constitutional rights and the possibility of being courtmartialed for any alleged violation of the Uniform Code

of Military Justice—because they could be recalled to active service, and thus they have “a formal relationship

with the military that includes a duty to obey military

orders.” Pet. App. 2a.

That decision is wrong. The court of appeals was

correct that petitioner maintained a military affiliation

and had the duty to report for limited service, if called.

But the Fifth Amendment’s militia exemption provides

for that by authorizing a court-martial for conduct that

occurs when a person is in actual service. Because petitioner’s conviction here resulted from conduct that occurred in his civilian life, the Fifth Amendment requires

that he be prosecuted as a civilian and in a civilian court.

ARGUMENT

I.

THE FIFTH AMENDMENT PROHIBITS SUBJECTING PARTTIME SOLDIERS TO MILITARY LAW SOLELY BASED ON

THEIR AFFILIATION WITH THE ARMED FORCES

This Court has recognized that “the jurisdiction of

military tribunals is a very limited and extraordinary jurisdiction … intended to be only a narrow exception to

the normal and preferred method of trial in courts of

5

law.” Reid v. Covert, 354 U.S. 1, 21 (1957) (plurality opinion) (emphasis added). It is a narrow exception because

Congress’s constitutional authority “‘[t]o make Rules for

the Government and Regulation of the land and naval

Forces’ … authorize[s] military trial of members of the

armed services without all the safeguards given an accused by Article III and the Bill of Rights.” Id. at 19

(emphasis added) (quoting U.S. Const. art. I, §8, cl. 14);

see also Ex parte Quirin, 317 U.S. 1, 40 (1942) (per curiam) (“Such cases are expressly excepted from the

Fifth Amendment, and are deemed excepted by implication from the Sixth.”).

Moreover, members of the military may be punished

for conduct that is constitutionally protected for civilians. For example, they may be punished for violating

orders not to wear visible religious articles, such as yarmulkes. Goldman v. Weinberger, 475 U.S. 503, 509-510

(1986). Officers may be punished for using inappropriate

language against the president, Congress, and a governor of a state where they are on duty. 10 U.S.C. §888.

And members of the military may be punished for failing

to show up for work on time or at all. Id. §§885-886. Civilians, in contrast, may display articles of religious faith;

have a constitutional right to subject public officials to

“vehement, caustic, and sometimes unpleasantly sharp

attacks,” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46,

51 (1988); and may change jobs at will. Military law,

thus, severely limits a person’s traditional constitutional

rights and civil liberties because of the need to promote

military order and discipline.

But the Framing generation, which cherished the

fundamental rights and liberties of Englishmen, also recognized that their curtailment should not be sanctioned

except where it is indeed necessary for military discipline. To this end, the Constitution differentiated

6

between “the land or naval forces” and the “militia.”

When the Constitution used the phrase “land or naval

forces,” it referred to members of the regular army or

navy, the Founding-era equivalent to the regular components of the Armed Forces of the United States. And

when the Constitution used the term “militia,” it referred to individuals who were primarily civilians but

could be called to perform temporary military service.

The modern equivalent to the Founding-era militia includes reservists, national guardsmen, citizens registered with the Selective Service System, and retirees—

including petitioner. Historical practice makes clear

that only regular members of the armed forces were subject to military jurisdiction at all times. Militiamen were

subject to military jurisdiction only when in actual service. Because petitioner is functionally a militiaman under the Fifth Amendment, and because he was not in actual service to the United States at the time of his offense, exercising military jurisdiction over him was unconstitutional.

A. The Constitution Distinguishes Between Professional Forces And Militia

Interpretation of the Constitution “begin[s] with its

text.” City of Boerne v. Flores, 521 U.S. 507, 519 (1997).

The Constitution uses several words to refer to the military—“Armies,” “Navy,” “land and naval Forces,” “Militia,” and “Troops”—and it uses these words in ways

that reflect meaningful legal distinctions among armies,

navies, and militia.

For example, article I gives Congress broad authority to “raise and support Armies,” “[t]o provide and

maintain a Navy,” and “[t]o make Rules for the Government and Regulation of the land and naval Forces.” U.S.

Const. art. I, §8, cls. 12-14. The Constitution also permits

7

Congress to determine whether state governments may

maintain their own standing armies or navies. Id. art. I,

§10, cl. 3.

By contrast, the Constitution limits Congress’s authority over the “Militia.” For instance, article I, section

8, clause 15 permits Congress “[t]o provide for calling

forth the Militia to execute the Laws of the Union, suppress Insurrections[,] and repel Invasions.” And clause

16 permits Congress to “provide for organizing, arming,

and disciplining, the Militia, and for governing such Part

of them as may be employed in the Service of the United

States.” (Emphasis added).

The Bill of Rights recognizes a similar distinction between the regular forces and the militia. The Fifth

Amendment’s command that “[n]o person shall be held

to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury” is

subject to two separate military exceptions. The first is

for “cases arising in the land or naval forces,” while the

second is for cases arising “in the Militia, when in actual

service in time of War or public danger.” U.S. Const.

amend. V (emphasis added).

In short, the Constitution recognizes two broad categories of military forces: armies and the navy on one

hand, and the militia on the other. And as discussed in

the next subsection, the original meaning of these

clauses demonstrates that the critical legal distinction

between the “militia” and the other services is that the

militia comprised nonprofessional citizen-soldiers, while

the armies and navy were regular forces.

8

B. Part-Time Citizen-Soldiers Are “Militia” And

Traditionally Subject To Military Jurisdiction

Only When In Actual Service

In the Framers’ understanding, the distinction between an “army” and a “militia” was whether military

service was a person’s principal occupation. As Adam

Smith put it, “[t]he practice of military exercises is the

sole or principal occupation of the soldiers of a standing

army, and the maintenance or pay which the state affords them is the principal and ordinary fund of their

subsistence.” 5 Smith, Wealth of Nations, ch. 1, at 541542 (Soares ed., MetaLibri 2007). In contrast, the “practice of military exercises is only the occasional occupation of the soldiers of a militia, and they derive the principal and ordinary fund of their subsistence from some

other occupation.” Id. at 542. In other words, “[i]n a militia, the character of the labourer, artificer, or tradesman, predominates over that of the solider; in a standing

army, that of the soldier predominates over every other

character.” Id. “[T]his distinction,” Smith explained,

“seems to consist the essential difference between those

two different species of military force.” Id.

The Framing generation shared Smith’s understanding of how to distinguish an “army” from a “militia.” When discussing how the United States should

supply troops for peacetime garrisons, Alexander Hamilton wrote that they “must either be furnished by occasional detachments from the militia, or by permanent

corps in the pay of the government … [which] amounts to

a standing army[.]” Federalist No. 24 (Hamilton) (emphasis added). When not a part of an occasional detachment, militiamen were “daily mingling with the rest of

their countrymen[.]” Federalist No. 29 (Hamilton).

Such “daily mingling” set the militia apart from the regular forces, which were a separate armed society with

9

“severe” rules and discipline. Letter from Samuel Adams to James Warren (Jan. 7, 1776), in 3 The Writings of

Samuel Adams 250, 250 (Cushing ed., 1907).

A person’s amenability to military jurisdiction depended upon the kind of military force to which he was a

member. Regular forces were always amenable to military jurisdiction. “A citizen on entering the army becomes liable to special duties as being ‘a person subject

to military law,’” and the soldier may “be tried and punished by a Court-martial” rather than by the usual process of common law. Dicey, Introduction to the Study of

the Law of the Constitution 282 (3d ed. 1889); see also 1

Clode, The Military Forces of the Crown 178-179 (1869)

(explaining that military law traditionally only applied

to members of the army in active service and explaining

the controversy over, and eventual rejection of, the application of military law to half-pay officers not in service).

In contrast, a militiaman had a part-time status and

was subject to much more limited military jurisdiction.

At most, militiamen trained a few days a year, and they

often received little or no training during periods of

peace. McCormack, Embodying the Militia in Georgian

England 103 (2015) (explaining that “[m]ilitiamen were

required, ‘on a just Occasion, to perform the Business of

a Soldier’”) (quoting Proposals for Amending the Militia

Act so as to Establish a Strong and Well-Disciplined

National Militia 40 (London, n.d. [1759?])); see Leider,

Deciphering the “Armed Forces of the United States,” 57

Wake Forest L. Rev. 1195, 1213-1215 (2022) (describing

militia training periods). Unlike a regular soldier, a militiaman could be subjected to military jurisdiction only

when he was in actual service or in training. See Dicey,

supra, at 285; see also 1 Clode, supra, at 181 (“[A]ll the

10

Reserve forces of the Crown are subject to the Military

Code whenever they are called out for actual service.”).

At the time of the Framing, British law had also

evolved to exclude anyone considered a “civilian” from

military jurisdiction. Before the seventeenth century,

England had subjected a variety of individuals to martial

law, including (among others) members of the armed

forces, rebels, and rioters. Capua, The Early History of

Martial Law in England from the Fourteenth Century

to the Petition of Right, 36 Cambridge L.J. 152, 153

(1977). But this practice, in derogation of a British subject’s traditional common-law rights, led to objections,

and in the 1628 Petition of Right, the Crown renounced

the authority to subject civilians to military law. Id. at

171-172 & n.77; see Petition of Right, 1628, 3 Car., c. 10

(Eng.); see also 1 Blackstone’s Commentaries 413 (“And

it is laid down, that if a lieutenant, or other, that hath

commission of martial authority, doth in time of peace

hang or otherwise execute any man by colour of martial

law, this is murder; for it is against magna carta.” (footnotes omitted)).

This practice reflected concern that military jurisdiction was in tension with a citizen’s common-law

rights, and therefore, should be narrowly drawn. Sir

Matthew Hale contended that martial law (which then

included military law) was “in truth and reality … not a

law, but something indulged, rather than allowed, as a

law” and justified only by “[t]he necessity of government, order, and discipline, in an army[.]” Hale, The History of the Common Law of England 42 (Runnington ed.,

6th ed. 1820). England only grudgingly and gradually

accepted it. “Before the Mutiny Act came into operation,

it was thought that there could not be in time of peace

any martial law applied even to soldiers[.]” 4 Hume et

al., The History of England 426 (1873). Even after the

11

Mutiny Act authorized military law in peacetime for regular soldiers, its annual renewal was routinely opposed

in Parliament because it “violate[d] every principle upon

which justice is administered in England.” 1 Clode, supra, at 152.

After the Revolution, traditional Anglo-American

limitations on military jurisdiction were codified in the

Fifth Amendment. The original Constitution gave Congress power to provide for disciplining the militia. U.S.

Const. art. I, §8, cl. 16. The Anti-Federalists objected

that Congress might abuse this power by applying military law to all able-bodied men simply because they

were technically members of the militia and subjected to

military service when called. Leider, supra, at 1206 &

n.59 (collecting Anti-Federalist commentary). The Fifth

Amendment answered these complaints. As discussed

above, the amendment required a grand jury to initiate

criminal charges, subject to two military exceptions: (1)

“cases arising in the land or naval forces” (i.e., the regular forces), and (2) “cases arising … in the Militia, when

in actual service.” The Framers, thus, permitted military jurisdiction for regular forces at all times, commensurate with their status as full-time soldiers and sailors.

But part-time forces could only be subject to military

law when they were in actual service. Congress, thus,

had no power to subject part-time soldiers to perpetual

military law simply because they were enrolled in an

armed force and might be called into future active service.

C. The Modern Equivalent Of The Founding-Era

Militia Are The Various Military Components

Of Nonprofessional Soldiers

Today, the militia includes active, inactive, and retired members of the Armed Forces Reserve; members

12

of the National Guard; civilians registered with the Selective Service System; and active-duty retirees including members of the Fleet Marine Reserve. Like those in

the Framing-era militia, individuals serving in these entities are primarily civilians who perform temporary military service when called to do so.

1. Armed Forces Reserve

The Armed Forces Reserve has seven individual reserve components: the Army National Guard, the Army

Reserve, the Navy Reserve, the Marine Corps Reserve,

the Air National Guard, the Air Force Reserve, and the

Coast Guard Reserve. 10 U.S.C. §10101. These seven

components are divided among three categories: the

Ready Reserve, the Standby Reserve, and the Retired

Reserve. Id. §10141.

a. The Ready Reserve contains Reserve and National Guard members who can be called to active federal

service during a war or other national emergency. 10

U.S.C. §10142(a). It has three subcomponents: the Selected Reserve, the Individual Ready Reserve (IRR),

and the inactive National Guard.

The Selected Reserve is the active component of the

military reserve. Members of the Selected Reserve participate in military training one weekend a month and

two weeks per year; they are otherwise full-time civilians. Congressional Research Service, Defense Primer:

Reserve Forces 1 (updated Jan. 17, 2023). The Selected

Reserve, thus, functions as the analogue of the Founding-era volunteer militia, which were active militia units

that underwent enhanced training and were the frontline of defense. Leider, supra, at 1215-1216, 1254.

The remaining members of the Ready Reserve operate essentially as a pool of emergency manpower.

13

Members of the IRR do not normally train at all—and

thus are true full-time civilians—but they may be called

to active service under certain circumstances. Defense

Primer, supra, at 1. The inactive National Guard is

made up of those Army National Guard members who

are in an inactive federal status. Id. Like the IRR, they

do not normally train but may be called to active service

under certain circumstances with the consent of their

state’s governor. Id.; 10 U.S.C. §12301(h)(3).

b. The Standby Reserve consists of personnel who

have been designated key civilian employees, or who

have a temporary hardship or disability. Defense Primer, supra, at 1; 10 U.S.C. §10151. Members of the

Standby Reserve are not required to participate in military training (though they may choose to do so) and they

may be called to active duty only in time of war or national emergency. 10 U.S.C. §§12301(d), 12306.

c. The Retired Reserve consists of all reservists

who receive retired pay on the basis of either active duty

or reserve service and those who will receive that pay

when they turn sixty years old. 10 U.S.C. §10154. Members of the Retired Reserve may be ordered to active

duty only in limited circumstances, when the appropriate military department head considers such a call-up

“necessary in the interests of national defense.” Id.

§688(c).

In all these components, members serve, at most, on

a part-time, temporary basis. When not training or on

active-duty orders, they live a civilian life, usually with

a civilian occupation—just like their Framing-era militia

counterparts.

14

2. Civilians Subject To Military Service

At the Founding, the militia was divided into a volunteer militia and a general militia. While the volunteer

militia were frontline units that underwent enhanced

training, the general militia consisted of the entire ablebodied population who could be drafted into military service. The general militia trained occasionally, if at all.

Leider, supra, at 1215-1216.

Today, the bulk of the modern general militia consists of civilians registered with the Selective Service

System. As this Court has explained, “It is undoubtedly

true that all citizens capable of bearing arms constitute

the reserved military force or reserve militia of the

United States[.]” Presser v. Illinois, 116 U.S. 252, 265

(1886); see also 10 U.S.C. §246 (defining the militia as “all

able-bodied males at least 17 years of age and … under 45

years of age”). The Selective Service System is the contemporary method by which the federal government

conscripts military manpower from able-bodied civilians. Presently, only men between the ages of 18 and 26

are required to register. 50 U.S.C. §3802(a). Congress

has greatly expanded this age range in wartime, making

it coextensive with the entire militia. See, e.g., Selective

Service Act Amendment, Pub. L. No. 65-210, §3, 40 Stat.

955, 955 (1918) (expanding the age range for registration

to eighteen through forty-five).

3. Fleet Marine Reserve

Despite its name, the Fleet Marine Reserve (FMR)

is not officially a “reserve component” of the military. 10

U.S.C. §10101. Instead, the FMR is a component of the

Marine Corps that consists of servicemembers who left

active duty after served at least 20 years in the Corps.

Id. §§8001(a)(2), 8330(b). A member of the FMR may be

15

ordered back to active duty in a time of war or national

emergency, or as otherwise authorized by law. Id.

§8385(a); see also id. §688(e) (authorizing limited oneyear call-ups). He or she may also be required to perform two months of active-duty training every four

years. Id. §8385(b). After thirty years of total service, a

member of the FMR is formally retired. Id. §8331(a).

According to petitioner, retirees are “almost never”

recalled into active duty. Pet. 5. If accurate, the Fleet

Marine Reserve operates similar to the Founding-era

general militia: a pool of emergency military manpower

that may be called into active duty in emergencies, but

otherwise performs little or no active service or training.

Real-world practice aside, the statutory terms of

service that govern the FMR are almost identical to that

of a Framing-era militiaman. Congress has authorized

the president to temporarily call forth members of the

FMR only when specifically authorized by law. See 10

U.S.C. §8385(a); cf. U.S. Const. art. I, §8, cl. 15 (authorizing Congress, not the president, to provide for calling

forth of the militia). Specifically, the president may order members of the FMR to full-time active military service in only three circumstances: (1) “in time of war or

national emergency declared by Congress, for the duration of the war or national emergency and for six months

thereafter;” (2) “in time of national emergency declared

by the President;” and (3) “when otherwise authorized

by law.” 10 U.S.C. §8385(a). This closely parallels Congress’s constitutional power to call forth the militia,

which is limited to times of insurrection, invasion, and

when needed for domestic law enforcement. U.S. Const.

art. I, §8, cl. 15.

Much like a Founding-era militiaman, moreover, a

Fleet Marine Reservist may not be kept on indefinite

16

active duty. His active service ends either on the expiration of the emergency prompting his call, 10 U.S.C.

§8385(a), or at the conclusion of a brief period of service,

id. §688 (no more than 12 months active service in any

two-year period). This contrasts with the regular standing army, which consists of those soldiers “whose continuous service on active duty in both peace and war is contemplated by law.” Id. §7075(a) (emphasis added); see

also id. §9066(a) (same for the regular Air Force),

§9085(a) (same for the regular Space Force).

Finally, federal law limits peacetime training for

FMR members to “not more than two months … in each

four-year period.” 10 U.S.C. §8385(b). This replicates

militia practice soon after the Founding, which fluctuated from no military training to approximately two

weeks per year. Leider, supra, at 1213-1215. And Fleet

Marine Reservists, just like militiamen, return to their

civilian occupations when they are not training. See

Dunne v. People, 94 Ill. 120, 138 (1879) (explaining that

militiamen, unlike troops, “when not engaged at stated

periods in drilling and other exercises … return to their

usual avocations”).

Petitioner’s service reflects the foregoing. Petitioner served for twenty years on active duty with the

Marine Corps, after which he was transferred to the

FMR. Before retiring, petitioner was a paradigmatic

member of the “land or naval forces,” serving full-time

on active duty in the Marine Corps. As such, petitioner

was “employ[ed] … in the constant practice of military

exercises,” to the exclusion of any civilian trade or profession. 5 Smith, supra, at 541. And he could constitutionally be subjected to military law and to trial by

courts martial for any misconduct—whether committed

on duty or off duty. Solorio v. United States, 483 U.S.

435, 439-440 (1987).

17

Petitioner’s military status, however, underwent a

fundamental change when he left active duty and joined

the FMR. Upon doing so, petitioner ceased military service and took on a civilian occupation managing two bars.

Pet. 7-8.

When he transferred to the FMR, petitioner

stopped being a member of the “land or naval forces” and

became a militiaman, as each of those statuses was understood at the time of Framing. Militiamen, “when not

engaged at stated periods in drilling and other exercises[,]” “return to their usual avocations” and “are subject to call when the public exigencies demand it.”

Dunne, 94 Ill. at 138; United States v. Miller, 307 U.S.

174, 178 (explaining that the militia constituted “civilians

primarily, soldiers on occasion”). Upon retirement, petitioner was no longer part of “an armed body of soldiers,

whose sole occupation is war or service,” Dunne, 94 Ill.

at 138. As a Fleet Marine Reservist, he was subject to

active duty only for highly limited periods “when the

public exigencies demand it.” Id. Because petitioner

was a militiaman for Fifth Amendment purposes, he

could not lawfully be court martialed for conduct that occurred when he was neither training nor called to actual

service.

*

*

*

Members of the FMR are subject only to temporary

military service in peacetime and to unrestricted fulltime active service in war. These terms of service are

analogous to Founding-era “Militia,” and a world away

from the full-time status of members of the “land or naval forces.” Part-time soldiers—including petitioner—

enjoy the protections of the Fifth and Sixth Amendments, save “when in actual service in time of War or

public danger,” U.S. Const. amend. V.

Because

18

petitioner indisputably was not in active service or in

training at the time of his offense, he could neither be

subjected to military law nor to trial by court-martial.

II. THE DECISION BELOW ALLOWS EXCESSIVELY BROAD

MILITARY JURISDICTION

A. The D.C. Circuit’s Analysis Fails To Recognize

A Militia Status

The D.C. Circuit held that “a person has ‘military

status’ if he has a formal relationship with the military

that includes a duty to obey military orders.” Pet. App.

2a. According to the court of appeals, moreover, a person can have a “duty to obey military orders” even if the

only order the person has a duty to obey is to report to

active-duty service if called. In the court’s words, “[w]e

fail to see why a servicemember who must obey one order is less a part of the ‘land and naval Forces’ than his

peer who must obey two.” Id. 34a. In any event, the

court further reasoned, a Fleet Marine Reservist, such

as petitioner, has “multiple military obligations,” including “a duty to report to active duty for training in peacetime, and a duty to comply with the military’s employment and reporting regulations.” Id. 35a.

The D.C. Circuit’s “duty-to-obey-any-order” test

would enable the curtailment of the constitutional rights

of a vast number of individuals who have only a limited

relationship to the military. That approach is starkly inconsistent not only with the Fifth Amendment’s textual

distinction between the regular military and the militia,

but also (and relatedly) with the Framing-era generation’s opposition to the expansion of military law into civilian society.

The D.C. Circuit justified its departure from Founding-era understandings by citing this Court’s decision in

19

Solorio v. United States. According to the court of appeals, that decision—which held that any “member of

the Armed Services at the time of the offense charged”

can be subjected to a court martial, 483 U.S. at 451—

“was not limited to active-duty troops.” Pet. App. 38a.

But Solorio never considered whether status-based jurisdiction was constitutional for part-time forces. The

D.C. Circuit’s expansion of Solorio simply begs the question here, which is whether someone with a part-time

military status is properly considered a member of the

Armed Services when not in active service. For all the

reasons given, the answer is no.

B. The D.C. Circuit’s Historical Examples Are Inapt

The court of appeals also sought to support its ruling

by pointing to categories of individuals in Anglo-American history who were ostensibly members of the land

and naval forces (and sometimes court martialed) despite not being in regular active service. These included

British “half-pay” officers from 1749-1751 and American

soldiers who were furloughed at the conclusion of the

Revolutionary War. Pet. App. 19a-26a. Neither example supports the court’s decision.

This Court has warned that British “practices and

understandings at any given time in history cannot be

indiscriminately attributed to the Framers of our own

Constitution.” New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111, 2136 (2022). This warning

applies to the example of half-pay officers, who were inactive officers paid a reduced salary during peacetime

periods. The subjugation of British half-pay officers to

military law was extremely controversial in Britain and

almost immediately abandoned. 1 Smollett, Continuation of the Complete History of England 6-8 (1760); 1

20

Clode, supra, at 178-181. And while the court of appeals

noted that the Continental Congress debated providing

half-pay for American retired officers, Pet. App. 23a, it

had no evidence that Congress ever intended to condition their receipt of half pay on perpetual application to

military law while in retirement. This hardly shows

American law’s acceptance of status-based jurisdiction

for all military personnel who have left active service or

who serve part-time.

The court of appeals likewise placed too much

weight on the example of Continental Army soldiers

who were furloughed at the end of the Revolutionary

War yet court-martialed during their furlough period.

These soldiers were given “conditional discharge papers” pending the conclusion of a full peace with Great

Britain. Pet. App. 25a. This example is unpersuasive for

two reasons.

First, a person may be in continual active service

even though he is on temporary leave. A furlough is

nothing more than an extended absence from the military. An extended absence does not change one’s principal occupation.

Second, there will always be borderline cases about

who remains in active service. Today, for example, soldiers could face courts-martial for committing military

offenses after they conclude their last military assignment but before they are formally discharged. See 10

U.S.C. §802(a)(1). The existence of such borderline cases

does not support the conclusion that the Framers accepted the broad application of military law to those who

were no longer in active military service at all.

21

C. The Question Presented Warrants Resolution

In This Case

Even apart from the need to resolve the conflict between the decision below and precedent from the Court

of Appeals for the Armed Forces, certiorari to correct

the D.C. Circuit’s error is warranted for three reasons.

First, by subjecting people to military jurisdiction

improperly, the decision below treads on important individual rights. As this Court has explained, “the Framers

harbored a deep distrust of executive military power

and military tribunals.” Loving v. United States, 517

U.S. 748, 760 (1996). In its military cases, therefore, this

Court has recognized that “[t]here are dangers lurking

in military trials which were sought to be avoided by the

Bills of Rights and Article III[.]” United States ex rel.

Toth v. Quarles, 350 U.S. 11, 22 (1955). The decision below makes those “dangers” a reality.

Second, the court of appeals’ decision blesses Congress’s improper transfer of authority from the federal

judiciary to the executive branch. “Every extension of

military jurisdiction is an encroachment on the jurisdiction of the civil courts[.]” Covert, 354 U.S. at 21 (plurality opinion). By extending court-martial jurisdiction

over retired FMR members, Congress has improperly

allowed the president to exercise adjudicatory power

over individuals who are de facto civilians and thus

should be tried, if at all, in civilian courts.

Third, the court of appeals’ decision has important

consequences for the Incompatibility Clause of the Constitution, which forbids members of Congress from holding another federal office simultaneously. U.S. Const.

art. I, §6, cl. 2. In its brief below, the government noted

that “[c]ourts and Attorneys General have in a long line

of decisions held that officers of the Army on the retired

22

list hold public office.” Resp. C.A. Br. 21 (Apr. 26, 2021),

Doc #1896059. Many retired military officers have been

elected to Congress. For example, Senator John McCain

and Representatives Joe Sestak and Ronny Jackson all

retired from the regular military before their time in

Congress. John S. McCain III: A Brief Navy Biography, Naval History and Heritage Command (Sept. 18,

2018), https://www.history.navy.mil/browse-by-topic/

people/profiles-in-duty/profiles-in-duty-vietnam/john-s-mccain-iii/john-s--mccain-iii--a-brief-navy-biography-.ht

ml; Rear Admiral Joseph Sestak Jr., https://www.

navy.mil/DesktopModules/ArticleCS/Print.aspx?Portal

Id=1&ModuleId=692&Article=2235968 (visited June 7,

2023); Shane, Veterans in the 117th Congress, by the

Numbers, Military Times (Jan. 2, 2021). If their status

as retirees means they still hold federal office as officers

in the military, then their simultaneous congressional

service violates the Incompatibility Clause. And with

good reason: It would give the president undue influence over the legislature if he could convene courts-martial against its members. Under the government’s theory that retired officers hold public office in the Armed

Forces, “retired” military officers cannot be seated in

Congress.

CONCLUSION

The petition for a writ of certiorari should be

granted.

23

Respectfully submitted.

DANIEL S. VOLCHOK

Counsel of Record

BRITTANY WARREN

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave. N.W.

Washington, D.C. 20037

(202) 663-6000

daniel.volchok@wilmerhale.com

JUNE 2023