Keith Mack
While there is no universal definition of martial law, it often refers to the use of the military for law enforcement. In the United States, the president, Congress, or a local military commander may impose degrees of martial law under specific situations. During martial law, the military becomes the supreme authority and can suspend civil rights, including the right to bear arms. While the Second Amendment protects the right to bear arms, it is unclear how this right would be affected during martial law when the military can override existing laws. Some states have laws protecting citizens' right to bear arms, but it is uncertain whether these laws would be followed by the military.
| Characteristics | Values |
|---|---|
| Who can declare martial law | The president, Congress, a state governor, or a local military commander |
| What is martial law | The use of the military for law enforcement |
| Does martial law override a CCW permit | Yes |
| Can you open carry during martial law | No |
| Can the president declare martial law | No |
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What You'll Learn
Martial law and the US Constitution
While there is no universal definition of martial law, it often refers to the use of the military for law enforcement. In the US, the president, Congress, or a local military commander may impose degrees of martial law under specific situations. However, the US Constitution does not give the president conclusive authority over the domestic use of the military, and instead, power is vested in the legislative branch. Therefore, a unilateral declaration of martial law by the president would not survive a legal challenge.
Historically, state officials have declared martial law in response to violent civil unrest or natural disasters, such as the Akron Riot of 1900 or the 1900 Galveston hurricane. It has also been used to break labour strikes, such as in Colorado in 1903 when the National Guard conducted mass arrests of striking workers. The first declaration of martial law in the US was by General Andrew Jackson in New Orleans during the War of 1812, a decision that was unpopular and resulted in a fine for the general.
The Insurrection Act and the Posse Comitatus Act were enacted to regulate the use of federal forces in domestic law enforcement. The Posse Comitatus Act, first passed in 1878, prohibits federal forces from assisting in domestic law enforcement unless the president has directed operations under the Insurrection Act or related laws. Federal troops can be used to enforce law and order without an official declaration of martial law, and have been utilized under both the Insurrection Act and the Posse Comitatus Act.
During martial law, the military becomes the supreme authority and can suspend all civil rights, including the right to bear arms. While the Second Amendment protects the right to bear arms, during martial law, the military can do whatever it deems necessary to resolve a situation, and any deviation from their orders can result in arrest or even the use of lethal force.
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Martial law vs a state of emergency
While martial law and a state of emergency are often considered the same, they are distinct. Martial law is a set of regulations enforced by the military rather than a typical civil administration, and it may be imposed following a coup d'état, during conflicts or occupations, or in the aftermath of a disaster when no other civil government is in place. On the other hand, a state of emergency is a period of governance initiated by the president in exceptional circumstances.
In India, martial law is not outlined by a specific regulation but draws its authority from the constitution, specifically Article 34, which puts certain restraints on the inalienable rights of citizens. A state of emergency, on the other hand, is outlined in Articles 352 to 360 in Part XVIII of the Indian Constitution. During a state of emergency, certain sections of the constitution that guarantee fundamental rights to Indian citizens may be overridden by a directive from the president's cabinet.
The process of declaring a state of emergency in India involves receiving a written recommendation from the cabinet. This declaration must then be assented to within one month by both houses of parliament. The duration of a state of emergency is limited to a maximum of 60 days. Similarly, in Finland, the Preparedness Act grants authorities extended powers during times of war and other exceptional circumstances.
In contrast to India and Finland, Egypt provides an example of the prolonged use of states of emergency. From 1967 to 2021, Egypt was almost continuously under a state of emergency, which gave the government the power to detain citizens without court orders and try civilians in military courts. During this period, public demonstrations were banned, and emergency laws were periodically renewed.
While the specifics may vary across different countries, martial law and a state of emergency both represent deviations from typical civil governance. They are typically invoked during periods of instability, crisis, or exceptional circumstances, resulting in the expansion of military powers and the potential restriction of certain civil liberties.
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Who can declare martial law?
The US Constitution does not explicitly mention martial law, and Congress has not passed a law specifying when it can be declared. However, the US President and Congress have the power, within certain constraints, to impose martial law as both can be in charge of the militia. The Posse Comitatus Act, passed in 1878, prevents the US military from "participating in civilian law enforcement activities", which limits the president's ability to declare martial law.
On a national level, the US President can declare martial law, and nearly every state constitution authorises the governor to impose martial law within the borders of their state. Governors have frequently used this power throughout history, such as in 1933 when Georgia Governor Eugene Talmadge declared martial law to force out some commissioners of the state Highway Board.
The Insurrection Act of 1807 allows the president to deploy military forces to put down rebellions within the US and help local law enforcement deal with domestic violence. This law has been used multiple times, such as in 1957 when President Dwight D. Eisenhower invoked it to enforce desegregation in Arkansas. However, it is important to note that calling in the National Guard is not the same as declaring martial law.
Although the president can call the military into action to help local governments after a natural disaster, their help is usually limited. Martial law is intended to be reserved for times of extreme emergency when existing civilian government and law enforcement have ceased to function or become ineffective.
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Gun rights during martial law
The concept of martial law is complicated and unsettled, with no established definition. In the United States, it usually refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. However, the exact scope and limits of martial law are dangerously unclear. While the Supreme Court has held that individual states have the power to declare martial law, it has never clearly stated whether the federal government has this power.
Even under martial law, the federal government is bound by the Constitution and cannot suspend or violate constitutional rights. This includes the Second Amendment right to bear arms, which some interpret as the right to bear arms against the government. However, it is important to note that a military commander's authority under martial law is virtually unlimited within the bounds of court decisions.
The Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities associated with martial law unless Congress has provided express authorization. Congress has also enacted a wide variety of laws that regulate when and where the military may be used domestically. These laws place clear and wide-ranging restrictions on the president's ability to use the military domestically.
While the law does not specifically address open carry during martial law, it appears that an individual's gun rights would still be protected under the Constitution, even if martial law is declared. However, the exact implications would depend on the specific circumstances and the authorities' interpretation of the law.
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History of martial law in the US
Martial law in the United States refers to instances when a region, state, city, or the entire country was placed under military control. Both the US President and Congress have the power to impose martial law, as they can be in charge of the militia. Additionally, in nearly every state, the governor has the authority to impose martial law within their state's borders.
Throughout history, martial law has been imposed at least 68 times, often in limited, local areas. Some notable instances include:
- New Orleans during the Battle of New Orleans
- The Great Chicago Fire of 1871, during which Chicago Mayor Roswell B. Mason declared martial law and placed General Philip Sheridan in charge of the city
- The 1906 San Francisco earthquake, which led to federal troops being stationed in the city to confiscate dynamite and prevent fires from spreading
- The Omaha race riot of 1919
- The Colorado Coalfield War in 1914, which resulted in the Ludlow Massacre
- The Civil Rights Movement, including the Cambridge riot of 1963
- The 1960s, a decade of racial and civil unrest, during which martial law was imposed multiple times, including in 1966 in San Francisco and 1967 in Detroit, Michigan
It is important to note that the power to impose martial law should not be wielded lightly, and there are historical limits on when and for how long it can be declared. The imposition of martial law is often tied to emergency preparedness, and it can have significant impacts on communities and civilians.
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Frequently asked questions
Martial law refers to the use of the military for law enforcement. It is often declared in response to violent civil unrest or natural disasters. It can also be declared by a local military commander in limited emergencies.
Martial law is not a set of written rules, and the military is the supreme authority. They can do whatever they want, including disarming citizens. If they say no guns, and you are found carrying one, you will likely be arrested.
If a state cannot or will not protect its citizens, federal forces may be deployed to maintain order. The president must first issue a proclamation ordering the insurgents to disperse before invoking the Insurrection Act.
