10 USC 246: Militia Composition, Classes, and Exemptions

Under 10 U.S.C. § 246, the U.S. militia is every able-bodied male citizen (and every male who has declared intent to become a citizen) between the ages of 17 and 44, together with female citizens who are members of the National Guard. The statute splits that population into two classes: the organized militia, which is the National Guard and the Naval Militia, and the unorganized militia, which is everyone else who meets the criteria. Most people who qualify have no idea they’re legally in the militia, and that’s because the classification carries no day-to-day duties, no enrollment step, and no penalty for doing nothing.¹

Who Qualifies Under Section 246

The statute is short. To be in the militia under federal law, you must meet three conditions:

Male and able-bodied. The statute uses the phrase “able-bodied males.” The only exception is for women who are members of the National Guard, who are included regardless of age.
At least 17 and under 45. The upper limit is written as “under 45 years of age,” so 44 is the oldest you can be and still qualify.
A U.S. citizen, or a male non-citizen who has made a declaration of intention to become a citizen.

Permanent residents who have not filed a declaration of intention are not in the militia. That declaration is a formal step handled by USCIS through Form N-300, which costs $250 to file and is available to permanent residents over 18. It isn’t required for naturalization, but filing it brings a male non-citizen within Section 246’s definition.¹

Women outside the National Guard are not in the unorganized militia. The statute simply does not include them, and although the Department of Defense opened all combat roles to women in 2015 and various proposals since then have tried to expand the definition or extend Selective Service registration to women, none have been enacted. Section 246 reads on this point the way it has for decades.

Men 45 and older also fall outside the statute. The age range traces back to the Militia Act of 1792. Section 246 cross-references 32 U.S.C. § 313 to allow National Guard service past 44 under certain conditions, but the unorganized militia stops at that age.¹

The Two Classes: Organized and Unorganized

Everyone the statute covers falls into one of two buckets.

The Organized Militia

The organized militia is the National Guard and the Naval Militia. National Guard members hold a dual status, serving in their state’s Guard under the governor and in the Army or Air National Guard of the United States as federal reserve components. Training, equipment, and standards are federally funded and regulated even when Guard troops are on state missions.² In Perpich v. Department of Defense (1990), the Supreme Court confirmed that Congress can authorize Guard members to be ordered to active federal duty for training outside the country without the governor’s consent.³

The Naval Militia gets equal billing in Section 246 but has a tiny footprint. Only New York and Alaska currently maintain active naval militias. Under New York’s arrangement with the U.S. Navy, 90 percent of members must also serve in the U.S. Naval Reserve, and if those reservists are federally activated, the governor cannot simultaneously call them up for a state mission.⁴

The Unorganized Militia

Everyone who meets the age, sex, and citizenship criteria but is not in the National Guard or Naval Militia is in the unorganized militia. On paper this is tens of millions of men. In practice, members receive no training, hold no equipment, have no chain of command, and take no oath. The category is best understood as a legal reservoir: a statutory recognition that these individuals exist and could be mobilized if Congress ever exercised its power to do so.

Does Being in the Militia Require Anything of You?

No. Section 246 is a definitional statute. It tells you who is in the militia, but it imposes no obligations, requires no enrollment, and carries no penalties on its own. There is nothing to sign, nothing to report, and nothing to do. If you are a 30-year-old male U.S. citizen in good health, you are in the unorganized militia right now, and that status by itself does not change anything about your life.

The obligations people sometimes associate with being “in the militia” come from a different place in the U.S. Code: the Military Selective Service Act.

How Section 246 Relates to Selective Service

The overlap between the unorganized militia and Selective Service registration is nearly total. Both apply to men based on age and citizenship, and both exist to keep a pool of people available for military mobilization. The difference is that Selective Service registration carries real, enforceable consequences while militia membership does not.

Men must register with Selective Service within 30 days of their 18th birthday, and the system accepts late registrations up to age 26.⁵ Failing to register is a felony punishable by a fine of up to $250,000, up to five years in prison, or both. Anyone who knowingly helps another person evade registration faces the same penalties.⁶ Men who skip registration also lose eligibility for federal student aid under Title IV of the Higher Education Act.⁷

Registration itself is changing. When the President signed the FY 2026 NDAA on December 18, 2025, Selective Service registration became automatic. Rather than requiring individual men to sign up, the Selective Service System will integrate with federal data sources to register eligible men without any action on their part. The agency has until December 2026 to fully implement the transition.⁸

Who Is Exempt From Militia Duty

Section 246 defines who is in the militia. The next statute, 10 U.S.C. § 247, lists who is exempt from actually serving. The exemptions are narrow:

The Vice President
Judicial and executive officers of the United States, the states, Puerto Rico, Guam, and the U.S. Virgin Islands
Active-duty members of the armed forces (reserve members not on active duty are not exempt)
Customhouse clerks
Federal mail workers
Workers at federal armories, arsenals, and naval shipyards
Pilots on navigable waters
Mariners in the sea service of a U.S. citizen or merchant

The list reflects a 19th-century economy in ways that have not been meaningfully updated.⁹

Conscientious Objectors

Separate from § 247, the Military Selective Service Act protects conscientious objectors. Under 50 U.S.C. § 3806(j), a person whose sincere religious training and belief makes them opposed to participation in war in any form cannot be required to serve in a combat role. If inducted, they must be assigned to noncombatant service, or, if they object to that as well, ordered to perform civilian work in the national interest for an equivalent period.¹⁰

In Welsh v. United States (1970), the Supreme Court held that a person qualifies for the exemption if their opposition to war stems from deeply held moral or ethical beliefs that function like religion in their life, even if those beliefs are not traditionally religious. The question is whether the beliefs are sincerely held and occupy a central place in the person’s conscience, not whether they come from an organized faith.¹¹

Ministers and Divinity Students

Ordained ministers are exempt from training and service, though not from Selective Service registration. Divinity students receive a deferment rather than an exemption, meaning their obligation is postponed. To qualify, a student must be pursuing full-time coursework at a recognized theological school under a recognized religious organization. Liability for service continues until age 35.¹²

Private Groups Are Not the § 246 Militia

People sometimes cite 10 U.S.C. § 246 to argue that private armed groups have legal standing as part of “the militia.” They do not. The statute defines the militia for purposes of federal law and places it under governmental authority. It does not authorize private citizens to organize their own military units.

In Presser v. Illinois (1886), the Supreme Court upheld an Illinois law banning private military organizations from drilling or parading with arms without the governor’s permission. The Court held that such laws do not conflict with federal militia statutes or the Second Amendment, and that state legislatures have broad power to regulate private military activity. Unless a group is authorized under the militia laws of the United States, the state can prohibit it.¹³

All 50 states have laws restricting unauthorized paramilitary activity, typically prohibiting training or assembling with weapons when the purpose is to further civil disorder. Legitimate self-defense classes, firearms training, and martial arts instruction are generally excluded.

Section 246 also does not cover state defense forces, which exist under a separate federal statute, 32 U.S.C. § 109. About 20 states maintain them. They cannot be called or drafted into the federal armed forces, and their members receive no federal pay, allowances, or medical benefits. A person cannot join a state defense force while simultaneously serving in a reserve component of the armed forces.¹⁴

How the Militia Can Be Called Up

The power to actually mobilize the militia belongs to Congress under Article I, Section 8 of the Constitution, which authorizes calling forth the militia to execute federal laws, suppress insurrections, and repel invasions. Congress has delegated portions of that authority to the President through statutes like the Insurrection Act. Under 10 U.S.C. § 253, the President can use the militia or the armed forces to suppress insurrection, domestic violence, or unlawful combinations that obstruct federal law or deprive people of constitutional rights when state authorities are unable or unwilling to act.¹⁵

In practice, the federal government has not called up the unorganized militia in any conventional sense since the 19th century. Modern mobilization runs through the Selective Service System and the Military Selective Service Act, not through direct invocation of Section 246. That is the practical point to hold onto. Tens of millions of Americans are technically in the militia right now, and none of them are required to do anything because of that status alone. Section 246 is a foundation, ready to support congressional action if circumstances ever demand it, and inert until they do.

1
Office of the Law Revision Counsel. 10 USC 246 Militia: Composition and Classes
2
National Guard Bureau. National Guard Duty Statuses
3
Justia U.S. Supreme Court Center. Perpich v. Department of Defense, 496 U.S. 334 (1990)
4
Defense Visual Information Distribution Service. Navy, Naval Militia Sign Memo of Understanding
5
Selective Service System. Men 26 and Older
6
Selective Service System. Benefits and Penalties
7
Office of the Law Revision Counsel. 50 USC 3811 Offenses and Penalties
8
Selective Service System. About Selective Service
9
Office of the Law Revision Counsel. 10 USC 247 Militia Duty: Exemptions
10
Legal Information Institute. Definition: Religious Training and Belief from 50 USC 3806(j)
11
Justia U.S. Supreme Court Center. Welsh v. United States, 398 U.S. 333 (1970)
12
Office of the Law Revision Counsel. 50 USC 3806 Deferments and Exemptions From Training and Service
13
Justia U.S. Supreme Court Center. Presser v. Illinois, 116 U.S. 252 (1886)
14
Office of the Law Revision Counsel. 32 USC 109 Maintenance of Other Troops
15
Office of the Law Revision Counsel. 10 U.S. Code 253 – Interference With State and Federal Law