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Martial law is a solution of last resort. It occurs when local law enforcement authorities are overwhelmed by any occurrence or combination of disastrous events, whether natural or manmade.
It sounds like something that could only happen in a third-world country, but it's happened here more often than most people realize. While martial law has never been declared across the entire United States at once, it came close during the Civil War, it was imposed on the entire territory of Hawaii during World War II, and it's been declared on numerous occasions on a state and regional basis.
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What is Martial Law?
Here's how Martial Law is defined:
“The ranking military officer in command of the force on the ground will become the head of civilian government for the duration.”
The assumption is that local government and law enforcement are incapable of handling the crisis, so the military is called upon to assume that role. Martial law can be declared by the President or by an act of Congress on a federal or national level using federal troops, and by the Governor on a state level using the national guard of that state as the military force.
Interestingly, the U.S. Constitution never actually uses the term “martial law.” The only related language is in Article I, which allows the suspension of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” Much of what we know about the limits of martial law comes from court decisions rather than written law, which is part of the reason the subject is so confusing.
Martial Law vs. a State of Emergency
It's worth pointing out that most of what people call “martial law” is actually a state of emergency. They're not the same thing.
During a state of emergency, governors and mayors can impose curfews, restrict travel, close businesses, and call up the National Guard to help with things like traffic control, search and rescue, and distributing supplies. But civilian government stays in charge, the courts stay open, and the police are still the ones enforcing the law.
Under true martial law, the military replaces civilian authority. That's a much bigger step, and it's much rarer. So if you see soldiers on the street corner after a hurricane, it doesn't necessarily mean martial law has been declared. More often than not, the Guard is there to support local authorities, not replace them.
Posse Comitatus
There is one law that limits the President's ability to declare Martial Law called Posse Comitatus. In 1878, Congress passed the Posse Comitatus Act, which forbids federal military forces from being used for domestic law enforcement unless the Constitution or Congress specifically authorizes it.
That last part is important, because Congress has authorized some exceptions. The biggest one is the Insurrection Act.
The Insurrection Act
The Insurrection Act allows the President to deploy federal troops within the United States to suppress rebellion, insurrection, or domestic violence that makes it impossible to enforce the law through normal means. It's the most significant exception to Posse Comitatus, and it's been invoked many times throughout history.
The most recent example was the 1992 Los Angeles riots, when federal troops and federalized National Guard units were sent in to help restore order after the Rodney King verdict. It's important to note that this wasn't martial law. Civilian government remained in control, and troops worked alongside local police rather than replacing them.
Still, the Insurrection Act is the legal tool most likely to put active-duty soldiers on American streets, so it's worth understanding.
Habeas Corpus
A significant clause in the application of Martial Law is the suspension of habeas corpus. Habeas corpus is a right requiring a person under arrest to be brought before a judge or into a courtroom if they feel they've been unlawfully detained.
Under Martial Law, a U.S. citizen may be detained with no explanation for why, and no recourse through a typical court of law.
What the Courts Have Said
The Supreme Court has placed some real limits on martial law over the years, and these cases are worth knowing about.
In Ex parte Milligan (1866), the Court ruled that civilians can't be tried by military tribunals in areas where the civilian courts are still open and functioning. In other words, the military can't simply take over the justice system just because it's convenient.
In Duncan v. Kahanamoku (1946), the Court ruled that the military trials of civilians in Hawaii during World War II were unlawful, even though martial law had been in effect for nearly three years.
The takeaway is that martial law isn't a blank check, at least not in the eyes of the courts. The problem is that these rulings often come years after the fact, which doesn't do much good for anyone caught up in the situation at the time.
A Brief History
Martial Law occurs with some frequency around the world, but its occurrence on a national level is relatively rare in the U.S, although it has been declared on a local and state level 70 times between 1847 and 1945.
The most extreme imposition of Martial Law occurred during the Civil War. At that time, Abraham Lincoln enacted the following:
- He suspended the writ of Habeas Corpus without the consent of Congress.
- He shut down newspapers whose writers displayed any dissent to Union policy or spoke out against him.
- He raised troops without the consent of Congress.
- He closed courts by force.
- He imprisoned citizens, newspaper owners, and elected officials without cause and without a trial.
As an historical precedent, it has led to many of the current fears surrounding the concept of Martial Law.
The other major example came after the attack on Pearl Harbor in 1941, when the territorial governor of Hawaii declared martial law. The military took control of the courts, set curfews, censored mail and newspapers, controlled wages and prices, and even regulated what people could buy. It lasted until 1944, far longer than most people expected, which is a good reminder that martial law doesn't always end as quickly as it begins.
What Could Motivate Martial Law in Today's Environment
Historically, Martial Law has been declared in the United States as a result of significant natural and manmade disasters, widespread rioting, or terrorism. To date, Martial Law has never been instituted as a result of a pandemic, although the COVID-19 pandemic showed just how quickly governments are willing to impose lockdowns, curfews, and travel restrictions when they feel it's necessary.
The fact of the matter is that societies around the world are quite fragile due to economic stress, political division, and the constant potential for unexpected events.
For example, the 2020 explosion in Beirut was so powerful that it was compared to the detonation of a small nuclear device, although it was actually caused by the improper storage of a large amount of a volatile fertilizer known as ammonium nitrate. Within days, Lebanon's parliament approved a state of emergency that gave the army broad powers, including the ability to impose curfews, ban gatherings, and try civilians in military courts. It's a good example of how quickly a single disaster, combined with an already struggling country, can put the military in charge.
Other potential triggers here at home might include a large-scale attack on the power grid, a major cyberattack, a massive earthquake, a financial collapse, or widespread civil unrest.
The 5 Rights You Surrender Under Martial Law
Under Martial Law, many of the protections in the Bill of Rights can be severely restricted or suspended for as long as the declaration is in place. Here are the basic rights that may no longer apply under Martial Law:
1st Amendment – Freedom of Speech, Assembly and the Press
The degree to which the 1st amendment is affected under Martial Law is proportionate to the threat. A significant natural disaster has less effect on the 1st amendment and in fact, open communication through the press is encouraged to communicate status and steps taken to help people manage and survive the disaster.
Civil unrest is another story, and it's not just about newspapers and broadcast news. The Internet, social media, blogs, and webpages may all find varying degrees of censorship and even suspension if it's felt that those platforms are being used to incite further unrest.
Freedom of assembly is often one of the first things to go. Bans on large gatherings are common under both martial law and states of emergency, and anyone caught ignoring them can be arrested.
2nd Amendment – Right to Bear Arms
It's quite possible that the confiscation of firearms could take place under Martial Law, especially if civil unrest is the root cause of the declaration.
This actually happened in New Orleans after Hurricane Katrina. Some weapons were taken from people attempting to board buses for evacuation, but police also confiscated firearms from residents in their homes. The public backlash was significant, and in 2006, Congress passed a law prohibiting federal officials, and anyone receiving federal disaster funds, from confiscating lawfully owned firearms during a declared emergency. Many states, including Florida, have passed similar laws since then.
That said, there is still a possibility that such measures could be implemented if the use of firearms becomes a widespread threat during periods of rioting or looting. Laws on paper don't always stop what happens on the ground during a crisis. If the military chooses to confiscate weapons, you'll likely have to fight that battle in court later, not on your front porch.
3rd Amendment – Freedom from Housing Soldiers
This right goes back to the Revolutionary War when the British took possession of homes and farms to house and feed their soldiers. It's unlikely that the U.S. Military is going to come to your home and move in, although in a worst-case scenario they may decide to set up a tent city on your property to house soldiers or the homeless if you own a large tract of land.
Even then, they would probably use public parks, school gymnasiums, and large parking lots before setting up in your front yard. But under Martial Law, they could do just that if they needed to.
4th Amendment – Protection from Unreasonable Search and Seizure
This is another unlikely event under most circumstances under martial law. It wasn't widespread following 9/11, although anyone who was suspected of being involved in the attack on the Twin Towers was subject to exactly that. And that's the point.
If you, for any reason, are connected to any event that has led to Martial Law, there's a good chance you may be subject to search and seizure without a warrant. Even something as simple as a traceable Facebook post could put you in that category.
In actual fact, people have been arrested or investigated because of their social media activity related to crimes and civil unrest. Those instances usually occurred as a result of a lengthy investigation. Under Martial Law, things often happen much more quickly.
It's also likely that you'll see checkpoints where vehicles are stopped and searched. Even if you've done nothing wrong, expect to be delayed, questioned, and possibly searched when traveling.
5th Amendment – Protection to Life, Liberty, and Property
At the beginning of the coronavirus pandemic, various people around the U.S. were engaged in the hoarding of face masks and reselling them for significant markups. Many of those people found their hoards (or property) confiscated, and some were prosecuted under the Defense Production Act. The general consensus is they got what they deserved. Under Martial Law, that can happen regardless of the circumstances.
This isn't about armed soldiers breaking down your front door and taking cans of soup out of your kitchen pantry. It's more likely to affect local businesses that have an inventory of goods deemed necessary for the emergency, as well as things like fuel, generators, and medical supplies. There will probably be eventual efforts to compensate those businesses, but there's no guarantee in writing to that effect under the laws that define Martial Law.
Life and liberty will also be highly monitored and restricted. “Stop travel” bans will often be in place in addition to enforced curfews and roadblocks to prevent travel to or from “hot zones” with significant threat levels.
If you feel that's a violation of your rights, it is. That's the whole idea of Martial Law. In a dire emergency, the assumption is that any restriction of activity is for the greater good of the community, as interpreted by the local military authorities. Not by you.
However, Posse Comitatus also prohibits federal troops from carrying out domestic law enforcement actions such as searching and seizing property and dispersing crowds, unless an exception like the Insurrection Act has been invoked. National Guard units operating under the command of their state's governor are exempt from the Posse Comitatus Act. Once they're federalized and placed under the President's command, however, the Act applies to them as well.
Common Sense Preparation for Martial Law
1. Understand How Martial Law Might Affect You
There are a variety of factors that would affect the degree to which your life and liberty might be affected by Martial Law.
Are you a person of interest for any reason?
If you are active in any group that might be associated with civil unrest or are known in your community as someone with a visible, public presence for any movements or activities associated with unrest, you may find that authorities are very interested in talking to you and assessing your intentions. Where this could lead is hard to determine.
Common sense dictates that you should moderate any activities that would cause you to stand out as a person of interest, and if questioned, to remain as calm and reasonable as possible.
Are you essential to the functioning of your community?
In the same way that some people may find themselves subject to questioning and investigation, people performing essential services during an emergency or disaster are often granted exemptions from newly imposed rules or regulations affecting travel, curfews, or even the right to bear arms.
This could apply to healthcare professionals, local fire and emergency services, law enforcement, public officials, utility workers, and business owners and employees deemed essential, similar to what we saw during the pandemic with pharmacies, grocers, and gas stations.
If you feel you perform an essential function, you should inquire about identification or other ways to identify yourself and what exemptions from regulations are allowed. Many employers issued letters to their essential employees during the pandemic, and it's not a bad idea to ask for one ahead of time.
2. Audit Your Supplies and Preparations
This isn't about stocking up on toilet paper. When travel is restricted, you will need to shelter in place, and that could require a supply of everyday items you'll need while Martial Law is in place.
Fortunately, many people gained some experience with stocking up due to the effects of the coronavirus pandemic. We've all become fairly good, if not experts, at stockpiling food and medical supplies to varying degrees, but the extreme events leading to Martial Law could result in some new if not unexpected challenges beyond food, water, and medicine.
Prescription Medications
If you or anyone in your family relies on prescription medication, try to keep at least a 30-day supply on hand. Pharmacies may be closed, out of stock, or simply impossible to reach during a curfew or travel ban.
Cash
When the power goes out or the banking system is disrupted, credit cards and digital payments stop working. Keep a reasonable amount of cash at home in small bills. Stores that are still open will likely be cash-only.
Fuel
Gas stations are often among the first businesses to run dry during an emergency, and fuel may be rationed or reserved for emergency vehicles. Keep your tank at least half full at all times, and consider storing some extra fuel safely if you have a place to do so.
Power/Batteries/Recharge Capability
Power outages are always a possibility following natural disasters, but in extreme cases of civil unrest, terrorism, or economic collapse, power outages can occur just as frequently.
Think about any power needs you may have and assess your ability to provide the basic power you need to function in your home or apartment. A generator, portable power station, or solar panels and a good supply of batteries can go a long way.
Communication Options
It seems extreme, but there are instances in some countries where even fundamental communications like the Internet and cell phone service have either failed or been intentionally halted.
Think about who you need to communicate with, how you can communicate, and assess whether or not you can keep in touch when conventional communication fails for any reason. Two-way radios, such as FRS or GMRS radios, are an affordable way for family members to stay in touch over short distances, and a ham radio license opens up much longer-range options.
3. Assess Your Situation
Location
Cities will be the most severely restricted location due to population density and the increased likelihood of unrest, looting, arson, and violence due to the breakdown of local law enforcement due to the disaster.
Rural areas will be less affected due to smaller populations and the simple fact that even the military can't be everywhere all at once.
Neighborhood
Even small towns can attract unwanted interest from the military if a neighborhood or area has a reputation or demands attention in terms of crime or violence. It's also worth considering what's near you. Living close to a government building, power plant, major highway, or military installation could mean more checkpoints and restrictions than you'd expect.
Family Situation
Do you have kids in college or living far from you? What about parents and grandparents? Is someone in a nursing home? These are the people you'll want to communicate with on a regular basis to assess their condition and safety.
Take the time to agree with critical family members about how and when you will stay in touch and what you can do if someone needs assistance. It's also a good idea to pick a meeting place in case you get separated and can't reach each other.
Bug Out Options
If you have an established bug out location, you'll definitely want to consider relocating, especially if you live in an area where Martial Law may be enforced with greater severity.
If you don't have a bug out location, you could inquire with family members and friends who live in a safer location and reside with them until the situation de-escalates.
Regardless of where you travel, you'll want to make the move sooner rather than later. As stop-travel restrictions and curfews are imposed, the ability to travel anywhere may be greatly limited or simply impossible. Plan more than one route to get there, and keep paper maps in your vehicle in case GPS isn't available.
4. Keep Important Documents Handy
If you have to pass through checkpoints or prove that you live in a restricted area, you'll need documentation. Keep the following in a waterproof folder that's easy to grab:
- Driver's licenses and other photo IDs
- Proof of residence, such as a utility bill or property tax statement
- Passports and birth certificates
- Insurance policies
- Medical records and a list of prescriptions
- Letters from employers stating you're an essential worker, if applicable
It's also smart to keep digital copies on an encrypted flash drive, but don't rely on them alone. If the power is out, a paper copy is the only thing that will do you any good.
5. Stay Informed
Situations resulting in Martial Law evolve and change with time. So do rules, regulations, and restrictions. Make sure you stay informed and communicate that information to immediate family and friends.
A radio is a good, reliable option, and you can always sit in your car in the garage if you're wondering where to find a radio. Just be sure the garage door is open if you run the engine, because carbon monoxide builds up fast in an enclosed space. Better yet, keep a battery-powered or hand-crank emergency radio that can pick up NOAA weather broadcasts, which also carry emergency alerts.
It's quite possible that basic services like the Internet will still function, and there's always the TV, but in a power outage, a radio may be your best bet.
6. Be The Gray Man
In other words, keep a low profile. Stay home. Don't break the law or any other rules and restrictions like curfews, travel, or joining large gatherings that have led to any kind of trouble in the past.
Moderate your social media usage. Martial Law is a bad time to get too public with hostile or antagonistic opinions. It's a good time to mind your own business, try to be polite, and just keep to yourself.
Don't brag about your preparedness. If you have enough food, medical supplies, and water to last a year, keep it to yourself. If it's common knowledge that you have food stockpiled floor to ceiling in your garage and basement, you're going to attract all sorts of unwanted attention you don't need.
If you own weapons, keep a lower profile. Don't go hunting. Walking around with a hunting rifle among nervous soldiers expecting trouble is a bad idea.
If you own firearms for self-defense, don't stand in your front yard holding a rifle to show everyone you can defend yourself. Military training assumes the worst when confronted by anyone with a weapon.
Keep them locked up and out of sight. Most states don't maintain gun registries, and federal law prohibits a national registry. However, gun dealers keep records of every sale, and permits and concealed carry licenses are on file with the state, so it's safe to assume authorities could find out who owns firearms if they really wanted to.
Chances are good they won't be going house to house to confiscate guns unless gunfire in the streets becomes a common occurrence. It may seem like that's the time when you would want a firearm more than any other, but the military approach to guns and gunfire is simple and fatal.
That may be another good reason to bug out before the situation devolves. And take the guns with you, making sure you're following the transportation laws of any states you'll be traveling through.
7. Know How to Handle a Checkpoint
If you have to travel, there's a good chance you'll run into a checkpoint. How you act there can make a big difference in how things go.
Slow down well before you reach it and follow any instructions you're given. Keep your hands where they can be seen, such as on the steering wheel. Turn on your dome light if it's dark. Don't make sudden movements, and tell the soldier or officer before you reach for your ID or anything else. If you have a firearm in the vehicle, say so calmly and right away.
Answer questions politely and briefly. This isn't the time to argue about your rights, even if you're right. If you believe you've been treated unfairly, remember as many details as you can, including names, badge numbers, unit markings, times, and locations, and deal with it later through the proper channels.
Take A Deep Breath
It's tempting to assume the worst when the subject of Martial Law comes up. That's no surprise. Martial Law means that a very bad and desperate situation has grown to proportions that only the military can handle. But it doesn't automatically equate to the end of the world as we know it.
Martial Law is supposed to be implemented to correct and stabilize a serious situation. The result is that serious measures are imposed in an effort to restore some semblance of the order we expect to see in everyday society.
Most people can get through it without too much pain and grief. With any luck, the event or events will pass or subside; Martial Law will be lifted and a new normal will take its place.
The only real challenge is how you prepare and manage yourself during the situation. With proper preparation, appropriate actions, and a good dose of common sense you should be able to ride it out and look back on it as an experience not worth repeating.
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