United States v. Begani ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee/Cross-Appellant
v.
Steven A. BEGANI, Chief Petty Officer
United States Navy (Retired), Appellant/Cross-Appellee
Nos. 20-0217 & 20-0327
Crim. App. No. 201800082
Argued March 9, 2021—June 24, 2021
Military Judge: Stephen C. Reyes
For Appellant/Cross-Appellee: Stephen I. Vladeck, Esq. (ar-
gued); Lieutenant Clifton E. Morgan III, JAGC, USN, and
Lieutenant Daniel E. Rosinski, JAGC, USN (on brief).
For Appellee/Cross-Appellant: Major Clayton L. Wiggins,
USMC (argued); Lieutenant Colonel Nicholas L. Gannon,
USMC, Lieutenant Joshua C. Fiveson, JAGC, USN, and
Brian K. Keller, Esq. (on brief).
Amicus Curiae for Appellee/Cross-Appellant: Peter Coote,
Esq. (on brief) (on behalf of Protect Our Defenders).
Chief Judge STUCKY delivered the opinion of the Court,
in which Judge OHLSON, Judge MAGGS, Judge
HARDY, and Senior Judge CRAWFORD, joined. Judge
MAGGS filed a separate concurring opinion, in which
Judge HARDY and Senior Judge CRAWFORD joined.
_______________
Chief Judge STUCKY delivered the opinion of the Court.
We originally granted review to consider whether subject-
ing members of the Navy’s Fleet Reserve, but not members of
the Retired Reserve, to Uniform Code of Military Justice
(UCMJ) jurisdiction violates the equal protection component
of the Fifth Amendment. U.S. Const. amend. V. The Judge
Advocate General of the Navy timely certified an additional
issue for review: whether Appellant/Cross-Appellee (Appel-
lant) waived this claim. After the United States District Court
for the District of Columbia held that the exercise of court-
martial jurisdiction over members of the Fleet Reserve was
unconstitutional, Larrabee v. Braithwaite, 502 F. Supp. 3d
322 (D.D.C. 2020), we granted review of an additional issue:
United States v. Begani, No. 20-0217/NA & No. 20-0237/NA
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whether members of the Fleet Reserve have sufficient current
connection to the military for Congress to subject them to con-
tinuous UCMJ jurisdiction. We hold: (1) that Appellant did
not waive appeal of his assigned issue; (2) as a member of the
land and naval forces, Appellant was subject to court-martial
jurisdiction; and (3) that the exercise of jurisdiction over Ap-
pellant did not violate equal protection.
I. Background
The United States Navy-Marine Corps Court of Criminal
Appeals (CCA) summarized the relevant background as
follows:
After 24 years of active-duty service, and numer-
ous voluntary reenlistments, Appellant elected to
transfer to the Fleet Reserve. He was honorably dis-
charged from active duty and started a new phase of
his association with the “land and naval Forces” of
our Nation. In short, for all intents and purposes, he
retired. In addition to receiving “retainer pay,” base
access, and other privileges accorded to his status as
a member of the Fleet Reserve, he remained subject
to the UCMJ under Article 2(a)(6).
After Appellant retired, he remained near his fi-
nal duty station, Marine Corps Air Station (MCAS)
Iwakuni, Japan, and worked as a government con-
tractor. Within a month, he exchanged sexually-
charged messages over the internet with someone he
believed to be a 15-year-old girl named “Mandy,” but
who was actually an undercover Naval Criminal In-
vestigative Service (NCIS) special agent. When he
arrived at a residence onboard MCAS Iwakuni, in-
stead of meeting with “Mandy” for sexual activities,
NCIS special agents apprehended him.
The Commander, U.S. Naval Forces Japan,
sought approval from the Secretary of the Navy to
prosecute Appellant at a court-martial, as opposed
to seeking prosecution in U.S. District Court under
the Military Extraterritorial Jurisdiction Act
(MEJA). Because Appellant was still subject to the
UCMJ, and therefore ineligible for prosecution un-
der MEJA, the Secretary authorized the Com-
mander to prosecute him at court-martial.
After Appellant unconditionally waived his right
to a preliminary hearing under Article 32, UCMJ, he
entered into a pretrial agreement (PTA). In his PTA,
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he waived his right to trial by members and agreed
to plead guilty and be sentenced by a military judge.
He also waived all waivable motions except for one.
He argued he could not lawfully receive a punitive
discharge because he was a member of the Fleet Re-
serve. The trial court denied that motion.
United States v. Begani, 79 M.J. 767, 770 (N-M. Ct. Crim.
App. 2020) (footnotes omitted).
The CCA affirmed the findings and sentence, holding that
Appellant “[was] a member of the land and naval Forces”;
“Congress [had] the authority to make him subject to the
UCMJ under its constitutional power to regulate those
Forces”; and subjecting members of the Fleet Reserve to trial
by court-martial, but not retired reservists, did not violate
equal protection. Id. at 775, 781, 783.
II. Waiver
Recognizing that subject matter jurisdiction cannot be
waived, the Government argues that Appellant’s equal pro-
tection claim only “incidentally” relates to jurisdiction, and
therefore can be, and was, waived by Appellant’s guilty plea.
Whether Appellant waived the issue is a question of law that
we review de novo. United States v. Davis, 79 M.J. 329, 331
(C.A.A.F. 2020).
Appellant entered into a pretrial agreement to plead
guilty, in which he waived all waivable motions, with the ex-
ception of his claim that a punitive discharge is not an author-
ized punishment for a retiree. Rule for Courts-Martial
(R.C.M.) 705(c)(1)(B) prohibits a term of a pretrial agreement
that deprives an accused of “the right to challenge the juris-
diction of the court-martial.” The court-martial had jurisdic-
tion over Appellant through Article 2(a)(6), 10 U.S.C.
§ 802(a)(6) (2018)—which Appellant now alleges violates
equal protection. If Appellant prevails, and Article 2(a)(6) is
unconstitutional, the court-martial has no jurisdiction to try
him. He would therefore have successfully “challenge[d] the
jurisdiction of the court-martial,” which cannot be waived.
R.C.M 705(c)(1)(B). Therefore, this Court finds that Appel-
lant’s argument that Article 2(a)(6) violates the equal protec-
tion component of the Fifth Amendment has not been waived.
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III. Court-Martial Jurisdiction over the Fleet Reserve
In Appellant’s second assigned issue, which we examine
first, he argues that court-martial jurisdiction over members
of the Fleet Reserve, and retired members of the armed forces
more generally, is unconstitutional. Though the Constitution
gives Congress the power to set rules for the “land and naval
Forces,” U.S. Const. art. I, § 8, cl. 14, Appellant argues that
members of the Fleet Reserve are not currently part of the
“land and naval Forces” and so cannot be subject to the
UCMJ.
A. Standard of Review
The question of jurisdiction is a question of law that we
review de novo. United States v. Hennis, 79 M.J. 370, 374–75
(C.A.A.F. 2020).
B. Law
Congress has plenary authority to “raise and support Ar-
mies” and to “provide and maintain a Navy.” U.S. Const. art.
I, § 8, cls. 12–13. Congress also has plenary authority to
“make Rules for the Government and Regulation of the land
and naval Forces.” Id. at cl. 14. This power is vast, permitting
even compulsory service. See Selective Draft Law Cases, 245
U.S. 366 (1918). The “ ‘land and naval Forces’ ” consist of
those “persons who are members of the armed services.” Reid
v. Covert, 354 U.S. 1, 19–20 (1957).
Pursuant to this governing authority over the land and
naval forces, “Congress has empowered courts-martial to try
servicemen for the crimes proscribed by the U.C.M.J.” Solorio
v. United States, 483 U.S. 435, 438–39 (1987). An offense need
not be military in nature to be tried by court-martial. Id. The
only question is the “military status of the accused. . . .
namely, whether the accused in the court-martial proceeding
is a person who can be regarded as falling within the term
‘land and naval Forces.’ ” Id. at 439 (internal quotation marks
omitted) (citations omitted).
As part of maintaining a Navy, Congress created multiple
categories into which naval personnel fall, one being the Fleet
Reserve. 10 U.S.C. § 6330(a) (2012). The Fleet Reserve is com-
posed of “enlisted member[s] of the Regular Navy . . . who
ha[ve] completed 20 or more years of active service in the
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armed forces.” 10 U.S.C. § 6330(b) (2012). Transfer to the
Fleet Reserve is optional, and members of the Fleet Reserve
are entitled to retainer pay, remain subject to recall at any
time, and are subject to the UCMJ. See Article 2(a)(6), UCMJ;
10 U.S.C. § 688(a). Upon completion of thirty years total ser-
vice, active and inactive, a member of the Fleet Reserve is re-
tired, and is thereafter entitled to retired pay. 10 U.S.C.
§ 6331(c).
For well over a hundred years, Congress, the military, and
the Supreme Court have all understood that retired members
of all branches of service of the armed forces who continue to
receive pay are still a part “of the land and naval Forces” and
subject to the UCMJ or its predecessors. See, e.g., United
States v. Tyler, 105 U.S. 244, 246 (1882) (“It is impossible to
hold that [retirees] who are by statute declared to be a part of
the army, who may wear its uniform, whose names shall be
borne upon its register, who may be assigned by their supe-
rior officers to specified duties by detail as other officers are,
. . . are still not in the military service.”); McCarty v. McCarty,
453 U.S. 210, 221–22 (1981) (acknowledging that “[t]he re-
tired officer . . . continues to be subject to the [UCMJ]”).
Though retirees are still part of the armed forces, persons who
have completely separated from the military are not. United
States ex rel. Toth v. Quarles, 350 U.S. 11, 14–15 (1955) (hold-
ing that “civilian ex-soldiers who had severed all relationship
with the military and its institutions” could not properly be
subject to court-martial for crimes committed while in the
Army). Neither are civilian dependents of servicemembers,
see Reid, 354 U.S. at 19–20, or civilian employees. See
McElroy v. United States ex rel. Guagliardo, 361 U.S. 281(1960); Grisham v. Hagan, 361 U.S. 278 (1960). “The test for
jurisdiction . . . is one of status, namely, whether the accused
in the court-martial proceeding is a person who can be re-
garded as falling within the term ‘land and naval Forces.’ ”
Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 240–
41 (1960) (emphasis added).1
1 But see John Warner National Defense Authorization Act for
Fiscal Year 2007, Pub. L. No. 109-364, § 552, 120 Stat. 2083 (2006);
United States v. Ali, 71 M.J. 256, 259 (2012) (holding that Article
(2)(a)(10), subjecting to court-martial nonmilitary persons
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C. Discussion
Appellant agrees that under our current case law, mem-
bers of the Fleet Reserve are in the land and naval forces and
subject to the UCMJ. He argues that those cases were either
wrong, or their reasoning has been vitiated by subsequent Su-
preme Court case law and the paucity of examples of involun-
tary retired recall. Appellant therefore urges this Court to
supplement the “military status” test with a “significant con-
nection” test.
This would not be the first time courts have tried to ana-
lyze sufficient “connections” to the military to determine
UCMJ jurisdiction. In O’Callahan v. Parker, the Supreme
Court sharply departed from earlier precedent and held that
a servicemember could only be court-martialed for crimes
that had a sufficient connection to the military. 395 U.S. 258,
274 (1969). After nearly two decades of attempting to parse
what level of “service connection” was sufficient—resulting in
a myriad of categorical exceptions and twelve different factors
to analyze—the Supreme Court reversed O’Callahan in
Solorio and held that the only appropriate test is the “military
status of the accused.” 483 U.S. at 436, 439.
Acknowledging that precedent and practice are not on his
side, Appellant nevertheless urges this Court to hold that the
Supreme Court narrowly construes military jurisdiction, re-
quiring it to be justified by “certain overriding demands of
discipline and duty,” id. at 440 (internal quotation marks
omitted) (citation omitted), and be “the least possible power
adequate to the end proposed.” Toth, 350 U.S. at 23 (internal
quotation marks omitted) (citation omitted).
We think this is misplaced. First, Solorio’s discussion of
the “ ‘demands of discipline and duty’ ” “concern[ed] the scope
of court-martial jurisdiction over offenses committed by ser-
vicemen” and not who is subject to the UCMJ. 483 U.S. at 440(emphasis added) (citation omitted). Solorio’s test for jurisdic-
tion was the military status of the accused. Id. at 451. Second,
Toth limited the expanse of UCMJ jurisdiction over civilians,
and was not concerned with whether an individual was a
accompanying armed forces in the field, does not violate the
Constitution).
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member of the armed forces. 350 U.S. at 22 (declining to infer
that the Necessary and Proper Clause included the power to
circumvent the Bill of Rights and subject ex-servicemen to
court-martial “when they are actually civilians”). Neither of
these cases addresses the question here, whether a member
of the Fleet Reserve is part of the “land and naval Forces.”
Other cases, both from our predecessor Court and the Su-
preme Court, discuss this explicitly.
In prior cases upholding the military status of members of
the Fleet Reserve, our predecessor Court identified multiple
indicators that members of the Fleet Reserve retain military
status. Appellant, as a current member of the Fleet Reserve,
is not in the same situation as the appellant in Toth, as he
has not “severed all relationship” with the military. Fleet Re-
servists are still paid, subject to recall, and required to main-
tain military readiness. Appellant argues that these ongoing
connections are insufficient to place Appellant in the “land
and naval Forces” because each, in isolation, is insufficient to
confer military status.
Pay. Once an enlisted member of the Navy has served for
twenty years, he can elect to transfer to the Fleet Reserve,
and receive ongoing retainer pay, or he can simply leave the
service and become a civilian. Appellant points out that
merely receiving pay from the Department of Defense cannot,
standing alone, confer UCMJ jurisdiction. See, e.g., Kinsella,
361 U.S. at 249. But of course, members of the Fleet Reserve
are not civilians, like the defendants in Kinsella and Toth
were. Appellant argues that pay cannot place someone in the
armed forces—which is of course true. But that is not what
happened here. Being paid didn’t confer military status—Ap-
pellant is paid because of his status. Members of the Fleet Re-
serve receive retainer pay because they are currently in the
Fleet Reserve, which is a component of the United States
Navy. They have not “severed all relationship” with the mili-
tary; rather, they are current members of the armed forces,
though not on active duty, and they are currently paid for
maintaining that status.
Appellant asks us to find that the Supreme Court implic-
itly overruled its prior cases on this subject when it held that,
under a federal tax statute, a state could not treat retired mil-
itary pay differently from retired pay for state officials.
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Barker v. Kansas, 503 U.S. 594, 605 (1992) (holding that “[f]or
purposes of 4 U.S.C. § 111, military retirement benefits are to
be considered deferred pay for past services”). Of course, in
that same case, the Court also said, “[m]ilitary retirees un-
questionably remain in the service and are subject to re-
strictions and recall.” Id. at 599. Appellant dismisses this as
dicta, but though UCMJ jurisdiction was not in question in
Barker, it would be strange indeed to find that the Supreme
Court implicitly held what it explicitly disclaimed. The state
income tax consequences for retainer pay have no bearing on
a retired person’s continuing status as a member of the fed-
eral armed forces.
Military Readiness and Recall. Members of the Fleet Re-
serve are not only paid for their current status; their status
also requires that they maintain readiness for future recall.
See Naval Military Personnel Manual (MILPERSMAN), Arti-
cle 1830-040, CH-38, at 12 (Dec. 19, 2011). They are subject
to recall by the Secretary of the Navy “at any time.” 10 U.S.C.
§ 688(a). They are also required to “[m]aintain readiness for
active service in the event of war or national emergency,” to
keep Navy leadership apprised of their home address and
“any changes in health that might prevent service in time of
war,” and remain “subject at all times to laws, regulations,
and orders governing [the] Armed Forces.” MILPERSMAN
Article 1830-040, CH-38, at 12; 10 U.S.C. § 8333. Members of
the Fleet Reserve are required to inform their branch of travel
or residency outside the United States for any period longer
than thirty days, and can be required to perform two months
of active service every four years. MILPERSMAN Article
1830-040, CH-38, at 12. If a member of the Fleet Reserve be-
comes unfit for any duty, he will be transferred to the Retired
lists of either the Regular Navy or the Retired Reserve. 10
U.S.C. § 6331(a); MILPERSMAN, Article 1830-030, CH-13, at
3 (Dec. 7, 2005).
Appellant argues that recall is rare, he has no “ongoing
military responsibilities,” and there is no “good order and dis-
cipline” benefit to being subject to the UCMJ while not on ac-
tive duty. That Congress could require more is not an argu-
ment that it has not required enough. Congress has the
responsibility “for the delicate task of balancing the rights of
servicemen against the needs of the military.” Solorio, 483
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U.S. at 447. Congress has determined that, in order to run an
all-volunteer military and maintain an adequate supply of
qualified retirees to supplement that force, it needs members
of the Fleet Reserve to be subject to the UCMJ but not to take
other steps it requires of regular members of active-duty com-
ponents. And as a factual matter, although the recall of retir-
ees may not be a frequent event, it is not the rare occurrence
that Appellant suggests. As the lower court noted when pre-
viously considering this very issue, “in both of our wars with
Iraq, retired personnel of all services were actually recalled.”
United States v. Dinger, 76 M.J. 552, 557 (N-M. Ct. Crim.
App. 2017) (alteration in original removed) (internal quota-
tion marks omitted) (quoting Francis A. Gilligan & Fredric I.
Lederer, Court-Martial Procedure § 2-20.00, 24 (4th ed.
2015)), aff’d, 77 M.J. 447 (C.A.A.F. 2018).
Congress has explicit and extremely broad powers over
the military under Article I of the Constitution and there is
no constitutional requirement that all members of the armed
forces be on continuous active duty. Congress elected to create
two components of the armed forces in the Department of the
Navy comprised of recent retirees, whom it continues to pay,
in exchange for the potential to be recalled as our national
security demands. These members of the Fleet Reserve and
Fleet Marine Reserve can constitutionally be considered part
of the land and naval forces, and Congress has determined
that they need to be subject to the UCMJ. To this determina-
tion we defer. See Solorio, 483 U.S. at 447 (“[J]udicial defer-
ence . . . is at its apogee when legislative action under the
congressional authority to raise and support armies and
make rules and regulations for their governance is chal-
lenged.” (alteration in original) (internal quotation marks
omitted) (citation omitted)).
Appellant asks us to adopt a narrow construction of Con-
gress’s express authority “[t]o make Rules for the Govern-
ment and Regulation of the land and naval Forces,” U.S.
Const. art. I, § 8, cl. 14, by excluding retirees from that power,
but to do so would run counter to the Supreme Court’s broad
deference towards Congress in enacting federal criminal stat-
utes pursuant to Congress’s regulatory powers. Despite there
being no express federal civilian police power in the Constitu-
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tion, the Supreme Court has held that “Congress can cer-
tainly regulate interstate commerce to the extent of forbid-
ding and punishing the use of such commerce as an agency to
promote immorality, dishonesty or the spread of any evil or
harm to the people of other states from the state of origin.”
Brooks v. United States, 267 U.S. 432, 436 (1925). The Su-
preme Court has repeatedly endorsed Congress’s decision to
subject Americans to new federal crimes over objections that
Congress has no such authority. See, e.g., Gonzales v. Raich,
545 U.S. 1, 17 (2005) (upholding Congress’s decision to crimi-
nalize the production and use of homegrown marijuana even
if state law allowed for its growth and use); Perez v. United
States, 402 U.S. 146, 156–57 (1971) (upholding Congress’s de-
cision to criminalize purely intrastate loan sharking). The
“make Rules” clause has long been interpreted as providing
Congress with the power to regulate the trial and punishment
of members of the land and naval forces. Dynes v. Hoover, 61
U.S. 65, 71 (1857). Given Congress’s broad authority to sub-
ject civilians to a federal criminal code based solely on its reg-
ulatory authority, we see no reason to narrowly construe Con-
gress’s express power to “make Rules” for the armed forces.
IV. Equal Protection Challenge to Jurisdiction
Having established that Congress can subject retirees to
jurisdiction under the UCMJ, we now consider Appellant’s
other assigned issue—whether it violates the equal protection
component of the Fifth Amendment to subject members of the
Fleet Reserve, but not retired reservists, to military
jurisdiction.
A. Standard of Review
“The constitutionality of a statute is a question of law;
therefore, the standard of review is de novo.” United States v.
Wright, 53 M.J. 476, 478 (C.A.A.F. 2000).
B. Law
The federal government is prohibited from violating a per-
son’s due process rights by denying him the equal protection
of the laws. Bolling v. Sharpe, 347 U.S. 497 (1954). The “core
concern” of equal protection is to act “as a shield against ar-
bitrary classifications.” Engquist v. Oregon Department of Ag-
riculture, 553 U.S. 591, 598 (2008). That is, the Government
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must treat “similar persons in a similar manner.” United
States v. Gray, 51 M.J. 1, 22 (C.A.A.F. 1999) (internal quota-
tion marks omitted) (citation omitted).
The initial question then, is whether the groups are simi-
larly situated, that is, are they “in all relevant respects alike.”
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). As discussed below,
Fleet Reservists and Retired Reservists are, in key aspects,
not similarly situated. They serve a different purpose in our
national defense scheme and have different benefits and obli-
gations. They are, therefore, not similarly situated.2
C. Discussion
“[I]t is the primary business of armies and navies to fight
or be ready to fight wars should the occasion arise. The re-
sponsibility for determining how best our Armed Forces shall
attend to that business rests with Congress, and with the
President.” Schlesinger v. Ballard, 419 U.S. 498, 510 (1975)
(internal quotation marks omitted) (citing and quoting Toth,
350 U.S. at 17). To that end, Congress created the Fleet Re-
serve to provide a ready supply of highly trained naval man-
power. Members of the Fleet Reserve have served as active-
duty enlisted members of the Navy for between twenty and
thirty years. 10 U.S.C. § 6330(b) (2012). As members of the
Fleet Reserve, they receive retainer pay, based on that expe-
rience. 10 U.S.C. §§ 6330(c)(1), 6332. They are required to
“[m]aintain readiness for active service in event of war or na-
tional emergency,” MILPERSMAN Article 1830-040, CH-38,
at 12, and may be recalled for training “[i]n time of peace.” 10
U.S.C. § 8385(b). In fact, they are subject to recall at any time.
10 U.S.C. § 688(a).
2 Even if they were similarly situated, we would employ rational
basis review of their distinct treatment, and our analysis would be
the same. We reject Appellant’s contention that the Sixth
Amendment right to a jury trial is implicated and so we should
apply strict scrutiny. As we explained in Section III, members of the
Fleet Reserve and regular retirees are both “part ‘of the land and
naval Forces’ ” and so neither have a Sixth Amendment right to a
jury trial. Therefore, no fundamental right is implicated by their
disparate treatment.
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Retired reservists, by contrast, usually served only a few
years on continuous active duty and then served part-time,
for a total of at least twenty years. Once retired, they need not
remain in the military, (although most do), and receive no pay
until they reach statutory eligibility at age sixty. See, e.g.,
Dep’t of Defense, Reg. 7000-14R, Financial Management vol.
7B, ch. 6, para. 060401 (2020) (“Retired pay benefits author-
ized for non-regular members of the uniformed services in 10
U.S.C., Chapter 1223 are viewed as a pension and entitle-
ment to retired pay under 10 U.S.C. § 12731 is not dependent
on the continuation of military status.”). They are not re-
quired to maintain any level of readiness and can be recalled
only in the event of a declaration of war or national emer-
gency by Congress. 10 U.S.C. § 12301(a) (2018). Even then,
they only may be recalled once other tiers of available man-
power have been exhausted. Id.Appellant glosses over these distinctions, characterizing
the pay differences as receiving “retired pay at some point in
their retired years.” (internal quotation marks omitted) (cita-
tion omitted). This, of course, ignores the critical distinctions:
when they are paid, why they are paid, and how much they
are paid.
Appellant also minimizes the recall distinctions by claim-
ing the two groups are “similarly subject to involuntary re-
call.” But of course, there are important distinctions as to both
when they can be recalled and why they can be recalled. Mem-
bers of the Fleet Reserve can be recalled during a war or na-
tional emergency declared by Congress; a national emergency
declared by the President; or for training during peacetime.
10 U.S.C. § 8385(a)–(b). Retired reservists on the other hand,
may only be recalled for the duration of a war or national
emergency declared by Congress (or six months thereafter),
and only after a determination that there are not enough
qualified active reserves or national guardsmen to fill the
need. 10 U.S.C. § 12301(a).
Appellant notes that the Government has not provided
recent examples of involuntary recall of retirees. This may in
part be due to sufficient numbers of retirees who have
volunteered for recall, and because recent threats have not
required that level of manpower. For that we may be grateful.
But Congress has the duty to ensure the military is ready for
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future threats and needs. That the use of the authority has
not been necessary in the recent past hardly means that it is
unconstitutional to be prepared in the event it is necessary in
the future. Appellant was not required to enter the Fleet
Reserve and accept retainer pay. But once he did, he made
himself available to be recalled, and continued to be subject
to the UCMJ.
In order to maintain our national security, Congress has
created multiple mechanisms through which interested indi-
viduals may volunteer to serve in the armed forces. These
mechanisms have varying rights and obligations. Congress
has determined that having a class of retired reservists is
beneficial, and their utility does not require a concomitant
need for them to remain subject to the UCMJ while retired.
True, all who have retired from the armed forces in any ca-
pacity remain subject to some level of recall—and this only
makes sense. All else being equal, those who have trained and
extensively served are more valuable in times of war than
those who have not served or have served far less time. But
members of the Fleet Reserve, being within ten years of full-
time, active-duty service, are arguably much more useful in
an emergency. They are more familiar with the current sys-
tems and can be brought up to speed much more quickly. To
facilitate this, Congress pays them to, among other things,
maintain readiness, which includes being subject to the
UCMJ.
Congress does not violate equal protection by having dif-
ferent benefits and obligations for these two groups. Fleet Re-
servists volunteered to enter the Fleet Reserve and accepted
current pay in exchange for maintaining readiness, being sub-
ject to recall, and being subject to the UCMJ. Retired reserv-
ists will only receive a reserve pension once they reach age
sixty and can only be recalled once other sources of manpower
have been exhausted. These two groups are not similarly sit-
uated, and so it does not violate equal protection to subject
one and not the other to the UCMJ.
Court-martial jurisdiction over members of the Fleet Re-
serve does not violate the Constitution, nor does subjecting
members of the Fleet Reserve and not retired reservists to
13
United States v. Begani, No. 20-0217/NA & No. 20-0237/NA
Opinion of the Court
UCMJ jurisdiction violate equal protection. Therefore, Appel-
lant, a member of the “land and naval Forces,” was properly
subject to jurisdiction under Article 2(a)(6), UCMJ.
V. Judgment
The judgment of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
14
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, with whom Judge Hardy and Senior
Judge Crawford join, concurring.
The specified issue on which the parties have submitted
supplemental briefs is “whether fleet reservists have a suffi-
cient current connection to the military for Congress to sub-
ject them to constant [Uniform Code of Military Justice
(UCMJ)] jurisdiction.” This issue is not new. Appellant/Cross-
Appellee (Appellant) acknowledges that our decision in
United States v. Overton, 24 M.J. 309, 311 (C.M.A. 1987), has
already answered the question in the affirmative, holding
that Congress constitutionally may subject members of the
Fleet Reserve and Fleet Marine Corps Reserve to trial by
court-martial. The Overton decision is consistent with the
longstanding view that retirees are in the armed forces. See,
e.g., United States v. Tyler, 105 U.S. 244, 246 (1882) (“We are
of the opinion that retired officers are in the military service
of the government . . . .”); United States v. Hooper, 9 C.M.A.
637, 643, 26 C.M.R. 417, 422 (1958) (“[R]etired personnel are
a part of the land or naval forces.”); William Winthrop, Mili-
tary Law and Precedents 87 n.27 (2d ed., Government Print-
ing Office 1920) (1895) (“That retired officers are a part of the
army and so triable by court-martial [is] a fact indeed never
admitted of question.”).
Appellant nevertheless requests that we overrule Overton
and reach a different conclusion. I agree with the reasons that
the Court gives for rejecting Appellant’s request, and I join
the Court’s opinion in full. I write separately only to address
one aspect of Appellant’s argument in more detail. In his
briefs, as I describe below, Appellant makes some effort to
demonstrate that this Court’s decision in Overton was incor-
rect based on the original meaning of U.S. Const. art. I, § 8,
cl. 14, and the Grand Jury Clause of the Fifth Amendment of
the United States Constitution.
I commend Appellant for briefing this Court on historical
sources pertinent to our interpretation of these provisions. A
party urging a court to overturn its precedent on a constitu-
tional issue at a minimum should show that the precedent is
inconsistent with the original meaning of the Constitution.
Compare Gamble v. United States, 139 S. Ct. 1960, 1965
(2019) (declining to overrule precedents establishing the Dual
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, concurring
Sovereignty Doctrine after finding these precedents to be con-
sistent with the Double Jeopardy Clause “[a]s originally un-
derstood”), with Alleyne v. United States, 570 U.S. 99, 103
(2013) (overruling Harris v. United States, 536 U.S. 545(2002), for being “inconsistent with . . . the original meaning
of the Sixth Amendment”). In this case, however, I ultimately
do not find Appellant’s originalist arguments persuasive.
I. Appellant’s Argument Under U.S. Const. art. I, § 8, cl. 14
U.S. Const. art. I, § 8, cl. 14 empowers Congress “[t]o make
Rules for the Government and Regulation of the land and na-
val Forces.” Appellant argues that Congress cannot use this
power to enact a law that subjects him to trial by court-mar-
tial because he was no longer part of the “ ‘land and naval
[F]orces’ ” at the time of his offenses or his court-martial. Ap-
pellant acknowledges that, as a member of the Fleet Reserve,
he continues to receive pay, he is subject to recall, and he is
still enlisted. But Appellant asserts that these three facts are
insufficient to make him part of the land and naval forces. On
the contrary, Appellant asserts that he “has no regular mili-
tary duties or authority” or, phrased another way, he has no
“actual duties and responsibilities.” And “because [he] has no
ongoing military responsibilities,” Appellant contends, “he
cannot be regarded as part of the ‘land and naval [F]orces’ ”
within the meaning of U.S. Const. art. I, § 8, cl.14.
Appellant’s argument appears to rest on two syllogisms.
The major premise of the first syllogism is that a person is in
the “land and naval Forces” within the meaning of U.S. Const.
art. I, § 8, cl. 14, only if the person has ongoing military duties
or authority. The minor premise of the first syllogism is that
Appellant does not have ongoing military duties or authority
as a member of the Fleet Reserve. The conclusion of the first
syllogism is that Appellant therefore is not in the “land or
naval Forces” within the meaning of U.S. Const. art. I, § 8, cl.
14.
The major premise of Appellant’s second syllogism is that
Congress may not subject to trial by court-martial a person
who is not in the “land and naval Forces” within the meaning
of U.S. Const. art. I, § 8, cl. 14. The minor premise of the sec-
ond syllogism (which would come from the conclusion of the
first syllogism) is that Appellant is not in the “land and naval
2
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, concurring
Forces” within the meaning of U.S. Const. art. I, § 8, cl. 14.
The conclusion of the second syllogism is that Congress there-
fore may not subject Appellant to trial by court-martial.
I agree with part of this reasoning. The major premise of
the second syllogism is settled. In United States ex rel. Toth
v. Quarles, the Supreme Court held that “given its natural
meaning, the power granted Congress ‘To make Rules’ to reg-
ulate ‘the land and naval Forces’ would seem to restrict court-
martial jurisdiction to persons who are actually members or
part of the armed forces.” 350 U.S. 11, 15 (1955) (quoting U.S.
Const. art. I, § 8, cl. 14). And if the minor premise of the sec-
ond syllogism were true, then I would agree that the conclu-
sion of the second syllogism would also be true.
But I am not convinced that the major premise of the first
syllogism—that a person is in the “land or naval Forces”
within the meaning of U.S. Const. art. I, § 8, cl. 14, only if the
person has ongoing military duties and authority—is true. As
Appellant acknowledges, this Court held in Overton that re-
tirees in the Fleet Reserve are part of the land and naval
forces, and thus subject to trial by court-martial, based on
their receipt of pay and the possibility of their recall to active
duty. The Court in Overton did not identify ongoing military
duties and authority as a requirement for being in the land
and naval forces.
Appellant, however, argues that Overton’s reasoning is in-
correct and should be overruled on two grounds. One ground
is that newer understandings of the purpose of retired pay
and recent experience showing the unlikelihood of his recall
to active service have undermined Overton’s reasoning. The
other ground is that Overton’s interpretation is contrary to
the original meaning of U.S. Const. art. I, § 8, cl. 14. The Court
amply addresses and correctly rejects Appellant’s first argu-
ment. But I believe that Appellant’s originalist argument
merits a closer inspection.
To prove his assertion that U.S. Const. art. I, § 8, cl. 14,
empowers Congress to regulate persons who do not have on-
going military duties and authority, Appellant draws on evi-
dence from the records of the Continental Congress from the
1780s. I agree with Appellant that the Continental Congress’s
3
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, concurring
practice under the Articles of Confederation is relevant in de-
termining the original meaning of U.S. Const. art. I, § 8, cl.
14. The constitutional clause was copied from the Articles of
Confederation, which gave Congress the power of “making
rules for the government and regulation of the said land and
naval forces, and directing their operations.” Articles of Con-
federation of 1781, art. IX, para. 4; see also 2 The Records of
the Federal Convention of 1787, at 330 (Max Farrand ed.,
1911) (James Madison’s Notes, Aug. 18, 1787) (recognizing
the clause was borrowed “from the existing Articles of the
Confederation”) [hereinafter Farrand’s Records]; 3 Joseph L.
Story, Commentaries on the Constitution § 1192 (1833) (“It
was without question borrowed from a corresponding clause
in the articles of confederation.”).1 Accordingly, the Framers
of the Constitution probably intended, those who ratified the
Constitution probably understood, and the public probably
construed “land and naval Forces” to have the same meaning
in the Constitution as in the Articles of Confederation. See
Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 231
n.3 (1998) (reasoning that language in the Constitution has
the same meaning as almost identical language in the Arti-
cles of Confederation); Felix Frankfurter, Some Reflections on
Reading Statutes, 47 Colum. L. Rev. 527, 537 (1947) (“[I]f a
word is obviously transplanted from another legal source . . .
it brings the old soil with it.”).
The question is whether the evidence that Appellant cites
is on point and persuasive. Appellant shows that in 1780, the
Continental Congress offered “officers who shall continue in
the service to the end of the war” half-pay for life after their
“reduction.” 18 Journals of the Continental Congress 1774-
1789, at 958–60 (Worthington Chauncey Ford et al. eds., re-
prints published from 1904–37 by the Government Printing
Office) (Oct. 21, 1789) [hereinafter Journals]. Appellant fur-
ther shows that in 1781, the Continental Congress passed a
similar law for “hospital department” officers. 19 Journals at
1 The most significant difference between the clauses in the
Constitution and the Articles of Confederation is that the Constitu-
tion assigns control over the operations of the armed forces to the
President as the commander-in-chief, rather than to Congress. See
U.S. Const. art. II, § 2, cl. 1. That difference is not relevant here.
4
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, concurring
68–70 (Jan. 13, 1781). Appellant contends that these exam-
ples show that the Continental Congress provided “for post-
duty compensation without military status.”
These examples, in my view, do not establish the truth of
the major premise of the first syllogism on which Appellant’s
argument rests. The examples do not show that a person is in
the “land and naval Forces” within the meaning of U.S. Const.
art. I, § 8, cl. 14, only if the person has ongoing military duties
or authority. Instead, the examples show merely that a
person could receive pay for past military service without
being in the land or naval forces. That point is not contested
in this case and is insufficient to show that Overton was
wrongly decided.
In my view, however, other acts of the Continental Con-
gress are relevant because they provide an unmistakable
counterexample that contradicts, and thus disproves, the ma-
jor premise of Appellant’s first syllogism. The counterexample
concerns furloughed soldiers. The Articles of War originally
empowered unit commanders to grant furloughs. See Articles
of War of 1775 art. LVI, reprinted in 2 Journals at 120 (June
30, 1775). Congress, however, later withheld this power to
higher authorities, and at the same time standardized the
documentation provided to furloughed and discharged sol-
diers. 20 Journals at 656–57 (June 16, 1781). The furlough
document specified that the bearer was permitted to be ab-
sent from his regiment, while the discharge document said
that the bearer was discharged from the regiment. Id. These
documents taken together make clear that furloughed sol-
diers were still in the Army because they were not discharged
and that they did not have ongoing duties because they were
authorized to be absent.
Perhaps the most telling instance of furloughs took place
at the end of the Revolutionary War. In May 1783, with the
British Army essentially defeated and a permanent peace
treaty expected imminently, Congress had to decide what to
do with the soldiers remaining in the victorious Continental
Army: Should they be discharged, furloughed, or retained?
The Journals describe the debate as follows:
The Report from Mr Hamilton, Mr Gorham and
Mr Peters, in favor of discharging the soldiers
enlisted for the war, was supported on the ground
5
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, concurring
that it was called for by Economy and justified by the
degree of certainty that the war would not be
renewed. Those who voted for furloughing the
soldiers wished to avoid expence, and at the same
time to be not wholly unprepared for the contingent
failure of a definitive treaty of peace. The view of the
subject taken by those who were opposed both to
discharging and furloughing, were explained in a
motion by Mr. Mercer seconded by Mr. Izard to
assign as reasons, first that Sr Guy Carleton [the
commander-in-chief of all British forces in North
America] had not given satisfactory reasons for
continuing at N. York, second, that he had broken
the Articles of the provisional Treaty.
25 Journals at 966–67 (May 23, 1783). In the end, Congress
decided to furlough a large contingent of soldiers indefinitely.
Id. at 967. As the passage above shows, these soldiers re-
mained in the Army and were subject to recall at any time,
but they had no ongoing duties. These soldiers were not dis-
charged until Congress approved a proclamation after the
signing of the Treaty of Paris, terminating their service effec-
tive November 3, 1783. Id. at 703 (Oct. 18, 1783). “[S]uch part
of the federal armies as . . . were furloughed,” the proclama-
tion stated, “shall, from and after the third day of November
next, be absolutely discharged . . . from said service.” Id.
The May 1783 furlough, and additional furloughs that
soon followed, provoked outrage among many of the fur-
loughed soldiers, some of whom were owed considerable un-
paid wages. One historian sympathized with their ire, noting
that “[t]here was neither provision for a settlement of ac-
counts nor even a word of appreciation for the soldiers.” Ken-
neth R. Bowling, New Light on the Philadelphia Mutiny of
1783: Federal-State Confrontation at the Close of the War for
Independence, 101 Penn. Mag. of Hist. & Biog. 419, 423
(1977). In June 1783, hundreds of these furloughed soldiers
took part in a mutinous demonstration targeting Congress in
Philadelphia. See Mary A. Y. Gallagher, Reinterpreting the
“Very Trifling Mutiny” at Philadelphia in June 1783, 119
Penn. Mag. of Hist. & Biog. 3, 3–4 (1995).
Underscoring the view that these furloughed soldiers were
still in the Army, despite having no current or ongoing duties,
some of the suspected participants were charged with mutiny
6
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, concurring
in “breach of the third article of the second section of the rules
and articles of war.” 25 Journals at 566 (Sept. 13, 1783). Mu-
tiny was an offense only an “officer or soldier” could commit.
Articles of War of Sept. 20, 1776, § II, art. 3, reprinted in 5
Journals at 789 (Sept. 20, 1776). The court-martial found sev-
eral of the accused guilty, and adjudged serious punishment.
See 25 Journals at 566 (Oct. 13, 1783). “Sentenced to whip-
pings were gunner Lilly, drummer Horn, and privates
Thomas Flowers and William Carman. Sentenced to death by
hanging were the two sergeants who had led the demonstra-
tion, John Morrison and Christian Nagle.” Bowling, 101
Penn. Mag. of Hist. & Biog. at 445. Mercifully, in exercise of
its “special grace,” Congress later pardoned the offenders,
noting that no lives were lost, no property was destroyed, and
those convicted “appear not to have been principals in the said
mutiny.” 25 Journals at 566 (Sept. 13, 1783). In granting the
pardons, however, Congress did not suggest that the courts-
martial lacked jurisdiction because the furloughed status of
the soldiers meant that they were out of the Army.2
In conclusion, because Appellant is asking us to overrule
Overton, he should at a minimum demonstrate that Overton
was incorrect as an original matter. His originalist argument
rests on a claim that the “land and naval Forces” did not in-
clude persons who had no ongoing duties. Assuming that the
2 Later evidence provides additional support. In 1787, Congress
asked the Secretary of War Henry Knox whether a discharged for-
mer soldier, John Sullivan, could be tried by court-martial after his
discharge for his participation in the mutiny “while he with the
greater part of the Army were furloughed as a preparatory step to
their being discharged.” 33 Journals at 666–67 (Oct. 12, 1787). It
was “a questionable point, whether he or any other person could be
legally tried by a court martial for crimes committed during the ex-
istence of the Army.” Id. at 667. Knox reported that “were such an
attempt to be made at this late period it might be a considered an
unusual stretch of power.” Id. In addition to the potential jurisdic-
tional problem, Knox also noted that procuring evidence would be
“utterly impracticable.” Id. Knox’s doubt that a discharged former
soldier could be tried by court-martial for acts committed while he
was still in the Army is consistent with what the Supreme Court
would later hold in Toth, and stands in contrast to the evident un-
derstanding that a court-martial could try soldiers who had been
furloughed but not discharged.
7
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, concurring
term “land and naval Forces” had the same meaning in the
Articles of Confederation as in U.S. Const. art. I, § 8, cl. 14,
Appellant has failed to convince me that his claim is correct
because furloughed soldiers provide a clear counterexample.
Furloughed soldiers had no ongoing duties, but they were in
the Army, and they were subject to court-martial for offenses
committed while furloughed.
I should add that Appellant has not cited evidence from
other sources that courts typically consult to discern the orig-
inal meaning of the Constitution. In my review of several of
these other sources, I have uncovered nothing that suggests
that having ongoing duties and authority was a requirement
of membership in the armed forces. Dictionaries from the
founding era do not define the compounds “land forces” and
“naval forces,” and the definitions of similar words like
“Army” and “Navy” provide no guidance on whether their
members necessarily had ongoing military duties.3 The rec-
ords of the Constitutional Convention of 1787 show that the
Framers principally discussed the provision that became U.S.
Const. art. I, § 8, cl. 14, on August 18, 1787. See 2 Farrand’s
Records at 330–31. Their discussion of the topic focused
mostly on whether to limit the size of the land and naval
forces during peacetime and did not address the specific issue
in this case. Id.
In The Federalist Papers, attention to the land and naval
forces mostly addressed the President’s role as the com-
mander-in-chief, the funding of the military, and the need for
some permanent forces despite valid concerns about standing
armies. See, e.g., The Federalist No. 41, at 119 (James Madi-
son) (in The Federalist Papers, Roy P. Fairfield ed., Anchor
Books 2d ed. 1966) (1788) (noting that the Constitution gives
Congress an “INDEFINITE POWER of raising TROOPS, as
well as providing fleets; and of maintaining both in PEACE,
as well as in war”); The Federalist No. 23, at 59 (Alexander
3 I consulted nine English language dictionaries and four legal
dictionaries from the founding era that the Supreme Court often
considers in attempting to discern the original meaning of the Con-
stitution. See Gregory E. Maggs, A Concise Guide to Using Diction-
aries from the Founding Era to Determine the Original Meaning of
the Constitution, 82 Geo. Wash. L. Rev. 358, 382–92 (2014) (listing
these dictionaries and providing links for finding them online).
8
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, concurring
Hamilton) (in The Federalist Papers, Roy P. Fairfield ed., An-
chor Books 2d ed. 1966) (1787) (noting that there is no “limi-
tation of that authority which is to provide for the defence and
protection of the community in any matter essential to its ef-
ficacy—that is, in any matter essential to the formation, di-
rection, or support of the NATIONAL FORCES”). And while
early state constitutions and the state ratification debates
have some relevance to Appellant’s second argument as dis-
cussed below, I found nothing that specifically addressed the
issue of whether the “land and naval Forces” include only per-
sons with ongoing duties.4 These other sources, in short, do
not contradict the evidence and the conclusion obtained from
the records of the Continental Congress concerning the status
of furloughed soldiers.
II. Appellant’s Argument under the Grand Jury
Clause of the Fifth Amendment
Appellant also presents arguments addressing the Grand
Jury Clause of the Fifth Amendment. This clause provides:
“No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War
or public danger.” U.S. Const. amend. V. Appellant contends
that this clause bars his trial by court-martial. He asserts:
“[E]ven if [he] remains a member of the ‘land and naval forces’
for purposes of the Make Rules Clause, the dispute must still
‘arise[] in the land or naval forces’ for purposes of the Fifth
Amendment’s Grand Jury Indictment Clause . . . for the mil-
itary to exercise jurisdiction.” (Third alteration in original.)
Appellant asserts that his case did not arise in the land or
naval forces because the conduct for which he was found
guilty took place after he retired from active duty, did not con-
stitute a “military-specific” crime, and bore no connection to
4 To the extent English practice might be relevant, Blackstone
said that the “military state includes the whole of the soldiery; or,
such persons as are peculiarly appointed among the rest of the peo-
ple, for the safeguard and defence of the realm,” a definition that
does not contain an active-duty requirement. 1 William Blackstone,
Commentaries on the Laws of England 395 (1st ed. 1765).
9
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, concurring
either his prior active-duty service or his future amenability
to recall.
As the Court correctly explains, the Supreme Court al-
ready has rejected the view that court-martial jurisdiction de-
pends on whether the charged offense has a “service connec-
tion.” United States v. Begani, __ M.J. __ (6) (C.A.A.F. 2021).
I therefore see no need to address further Appellant’s conten-
tions that the alleged offense is not “military-specific” and is
not related to Appellant’s prior active service or possible fu-
ture active service. Instead, I will discuss only his argument
that he has a right to a grand jury because he did not commit
his offenses while on active duty.
The text of the Grand Jury Clause makes Appellant’s ar-
gument implausible. The drafters of the Fifth Amendment
distinguished between armed forces that are in actual or ac-
tive service and armed forces that are not. They created a gen-
eral exception to the requirement of a grand jury indictment
for members of the “land and naval forces” but a limited ex-
ception for members of the “Militia” that applies only when
members of the “Militia” are “in actual service.” U.S. Const.
amend. V. This distinction leads to an inference that the ex-
ception for the “land and naval forces” applies without regard
to whether a member of the land and naval forces was in ac-
tual service at the time of the offense. As the Supreme Court
has put it: “All persons in the military or naval service of the
United States are subject to the military law, — the members
of the regular army and navy, at all times; the militia, so long
as they are in such [actual] service.” Johnson v. Sayre, 158
U.S. 109, 114 (1895) (emphasis added). The term “actual ser-
vice” meant that persons have some ongoing duties. See Story,
supra, at § 1208. (“To bring the militia within the meaning of
being in actual service, there must be an obedience to the call,
and some acts of organization, mustering, rendezvous, or
marching, done in obedience to the call, in the public ser-
vice.”). Accordingly, the text of the Grand Jury Clause indi-
cates that members of the “land and naval forces” can be tried
without a grand jury indictment despite having no ongoing
duties, even though members of the “Militia” cannot.
History supports this interpretation. At the time of the
framing of the Constitution, the question of who was subject
to trial by court-martial was important. Three state
10
United States v. Begani, No. 20-0217/NA & No. 20-0327/NA
Judge MAGGS, concurring
constitutions expressly limited the exercise of court-martial
jurisdiction over militiamen to those in actual service without
requiring the same for members of regular forces. The
Massachusetts Constitution provided: “No person can in any
case be subject to law-martial, or to any penalties or pains, by
virtue of that law, except those employed in the army or navy,
and except the militia in actual service, but by authority of
the legislature.” Mass. Const. of June 15, 1780, pt. 1, art.
XXVIII, reprinted in 3 The Federal and State Constitutions,
Colonial Charters, and Other Organic Laws of the States,
Territories, and Colonies Now or Heretofore Forming the
United States of America 1888, 1893 (Francis Newtown
Thorpe ed., 1909) [hereinafter Federal and State
Constitutions]. The New Hampshire and Maryland
Constitutions had similar provisions.5
When the ratifying conventions in Massachusetts and
New Hampshire voted to approve the federal Constitution,
they each requested that a similar provision be included in a
federal Bill of Rights. Both states proposed the same
language: “That no person shall be tried for any crime by
which he may incur an infamous punishment, or loss of life,
until he be first indicted by a grand jury, except in such cases
as may arise in the government and regulation of the land
and naval forces.” 1 The Debates in the Several State
Conventions, on the Adoption of the Federal Constitution, as
Recommended by the General Convention at Philadelphia, in
5 The New Hampshire Constitution provided: “No person can in
any case be subjected to law martial, or to any pains, or penalties,
by virtue of that law, except those employed in the army or navy,
and except the militia in actual service, but by authority of the leg-
islature.” N.H. Const. of June 2, 1784, art. XXXIV, reprinted in 4
Federal and State Constitutions, at 2453, 2457. It also provided:
“Nor shall the legislature make any law that shall subject any per-
son to a capital punishment, excepting for the government of the
army and navy, and the militia in actual service, without trial by
jury.” N.H. Const. of June 2, 1784, art. XVI, reprinted in 4 Federal
and State Constitutions, at 2455. The Maryland Declaration of
Rights similarly provided: “That no person, except regular soldiers,
mariners, and marines in the service of this State, or militia when
in actual service, ought in any case to be subject to or punishable
by martial law.” Md. Declaration of Rights of Nov. 11, 1776, art.
XXIX, reprinted in 3 Federal and State Constitutions, at 1686, 1689.
11
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Judge MAGGS, concurring
1787 at 323 (J. Elliot ed., 1827–1830) (Massachusetts); id. at
326 (New Hampshire).
The Fifth Amendment incorporates many of these same
words. In drafting the Fifth Amendment, Congress pointedly
and similarly decided not to qualify the exception for land and
naval forces with an “actual service” limitation. Instead, Con-
gress placed that restriction only on the government and reg-
ulation of the “Militia.” Given the importance of the issue, this
distinction must have been intentional and would have been
seen as such. Against this background, and consistent with
the syntax of the Fifth Amendment, I conclude that those who
framed the Fifth Amendment must have intended, those who
voted to ratify must have understood, and members of the
public would have construed the “actual service” limitation to
apply only to members of the “Militia” and not to members of
federal land and naval forces.
III. Conclusion
As explained above, our decision in Overton has already
answered the specified question. We should not overturn
Overton in this case because Appellant has not shown that it
conflicts with the original meaning of the Constitution.6 I con-
cur with the Court’s opinion.
6 The United States District Court for the District of Columbia
recently reached a different conclusion in Larrabee v. Braithwaite,
502 F. Supp. 3d 322, 324 (D.D.C. 2020). The thoughtful opinion of
the learned district court, in my view, also does not demonstrate
that our decision in Overton was incorrect as an original matter.
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