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What is Martial Law? – Law under the power and control of a military force

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Martial law is often the “boogeyman” of the preparedness community, a suspension of all rights and the introduction of a massive, overpowering police state. However, in many ways there is disinformation and outright lies regarding exactly what martial law really is and when it can legally be put into effect. Let’s take a look and see what it is, when it can be put into place, and whether it has happened in the United States before.

Disclaimer: I’m no lawyer nor am I a judge, so my opinion is just that when it comes to martial law. Consult with an actual lawyer who has taken the time to read through all the minutia and every related court case if you are truly concerned about potential abuses of power.

During martial law civilian courts can be replaced with less lenient military tribunals.

At its core, martial law is exactly what it says, which is law under the power and control of a military force. Typically reserved for emergencies such as national disasters, war, epidemics (even on a small scale), or rioting and insurrection, martial law supplements or replaces existing civilian legal, judicial and executive government with a military one. As a result, troops are often brought in to control the populace using methods more extreme than what the typical police forces would use in a given situation. Furthermore, lawbreakers are not subject to civilian courts as per normal, but rather military tribunals just as if they were soldiers in the military.

As a result of using the military as a legal and judicial system, many civil rights are commonly suspended for the duration. Writ of Habeas Corpus is null owing to the lack of civilian courts, as was shown by Lincoln’s suspension of the Writ during a large part of the Civil War. Basic rights including speech, assembly and press can also be suspended, as can civil rights regarding racial discrimination. Even the simple right to keeping your own property can be removed, allowing the military government to confiscate stored foods, water, medical supplies, and weapons at will. It is these things that are the primary reason for distaste by most people who hear about a possibility of martial law. Without the restrains put upon a civilian government, martial law allows gross violations of rights as a matter of course.

That said, when used in the appropriate, limited sense it ought to be martial law can be extremely short lived. During the Great Chicago Fire of 1871, for example, martial law was put in place for only a few days until the military had the blaze put out. Martial law also allows government to bull through the usual bureaucratic red tape and anti-corruption restraints in order to access stockpiles of prepared resources rapidly and deploy them quickly. Assuming that the people in charge are honorable and reasonable, martial law can allow a disaster or emergency to be mitigated in the best manner possible with minimal interference from measures intended to mitigate the corruption that can take years to form in civilian government. As many people have noted, however, that is one big “if”.

The difference between “martial law” and a “state of emergency”

This may surprise you, but there actually is a difference between the two. Indeed, in the U.S. the “state of emergency” label was created specifically to avoid instituting the hard-handed fist of martial law for every national disaster that required Federal assistance. They are similar in several ways, but here are some key differences to help you see how to each one is distinct:

A state of emergency is commonly declared after a major natural disaster as part of a plea for outside aid.

Martial Law is under the control of the military, a State of Emergency is still under civilian control.

  • A State of Emergency often has limiters in a State Constitution or in the legal code of a given state to restrict exactly which rights can be suspended and when or how goods can be confiscated. Martial Law allows the military to basically do whatever it wants and suspends most forms of civilian law, including Constitutions.
  • States of Emergency are frequently called for during major disasters such as hurricanes, tornadoes etc even if the populace is generally stable. Martial law, by contrast is usually called for when the average person is likely to be breaking the law owing to a lack of civilian government.
  • There is much less to be gained from a State of Emergency than from Martial Law. Oftentimes Martial Law is declared indefinitely and relinquished slowly, since people who generally have little overt political power are suddenly in charge of running entire areas of a country. A State of Emergency is usually localized in nature, and the people administrating it are the people already in power such as the governor and local police forces. Furthermore, States of Emergency are designed to end fairly quickly and return the law to its original form prior to the disaster, meaning that the legislature is less likely to try and make themselves into kings during the emergency.

All this said, a State of Emergency does still allow a government to suspend certain rights and privileges depending on the scale of the disaster. If you’re curious, I would recommend looking into your own State Constitution and seeing if there are limiters on what can occur during a State of Emergency. Wikipedia is not a great source in itself, but it is good about providing links to the actual laws in place, so starting there would be a good bet.

Martial Law in the United States

Martial Law has been declared over 10 times in the history of the United States, but here are some of the most notable instances to give you an idea of what life would be like in that legal state.

  • The Massachusetts Government Act (May 20, 1774) was part of the Intolerable Acts and as such technically predates the formal organization of the United States. It was part of Parliament’s response to the Boston Tea Party, and it suspended town meetings without the consent of the royal governor, changed many elected positions to appointees of the governor, and otherwise generally destroyed the formerly independent government of Massachusetts in order to reclaim some control over their wayward colony. Needless to say, the response was somewhat more lively than Parliament could have envisioned.
  • The Civil War (various, nationwide September 18, 1863). President Lincoln suspended habeus corpus slowly over the various places of the Union that he felt required it, and initially without the written approval of Congress. With the power he granted, “Copperhead” (Southern loyal) members of state governments were arrested, printers of papers criticizing Lincoln and the war were arrested and their presses demolished, and Northerners identified as traitors to the state were tried by military tribunal even when civilian courts were still in operation. Even during the Civil War this was a highly controversial move, and later Supreme Court cases determined that at least in part Lincoln’s actions were blatantly unconstitutional.
  • The 1906 San Francisco Earthquake (April 18 – July 1, 1906) Soldiers were sent in to provide food, water, shelter, and to guard buildings and deal with looters. They were effectively the only police force in action at the time, and were given shoot-to-kill orders for people committing acts of looting or other various crimes deemed sufficiently serious. Although there were accusations of looting on the part of the soldiers, they were otherwise well received and no major trampling of rights was reported during or after the event.
  • Hawaii during WWII (December 7, 1941-October 24, 1944) As you might guess by the initial date, martial law was enacted on the Hawaiian islands after the Japanese bombing of Pearl Harbor owing to the large population people there of Asian descent. Although the initial enactment has been defended as necessary, federal judges postwar criticized the Army for taking their control too far. Like many areas in the United States during this time, people of Asian descent were treated poorly and often had their businesses, homes, and other property confiscated and were forced to wait in internment camps for a large part of the war. This example is often a primary citation for modern analysts who are concerned that martial law might permit small groups of “enemies” to be forcibly robbed by a military government.

Is martial law a concern for preppers?

Martial law is a concern for any person in any country, not just the preparedness community. Essential freedoms including the right to bear arms, to speak and write as you please, and to assemble for peaceable demonstration against the government are the means by which a peaceable and free society runs, and suspending them invites the corrupt and power-hungry to make their play. That said, martial law is not some kind of code-word for totalitarian government, and in many cases martial law was enacted and then later civilian government was restored. You can stick your head in the sand and ignore it on one extreme, or you can put on the tinfoil hat and wait for the black helicopters to take you away on the other, but I would favor a more balanced approach that views martial law with extreme caution.

Rather than waiting in fear for some boogeyman to come and take your freedoms and supplies however, I would recommend you give serious thought to your own reaction to different levels of martial law. What do you consider a just degree of martial law, and what would you refuse to comply with on moral or practical grounds? Only you can answer that question, but the time to determine it is not immediately after a disaster sufficient to require martial law to be declared.



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