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A bit of research into the legal background of the National Guard can be revealing.
There is of course the modern 10 US Code §311, which defines the unorganized militia of the U.S. as essentially all males 18-45 and certain women, and the organized militia as essentially the National Guard. There are also various State statutes (Arizona's defines the state militia to include women as well as men).
10 U.S.C. §311 dates from the Dick Act of 1903, which repealed the Militia Law of 1792, and first wrote the term "National Guard" into law. The Guard as we now know it (dual enlistment: members of State National Guard units required to enlist in the U.S. Reserves) dates from the Army Act of 1940. (Why dual enlistment? In 1912 the Attorney General ruled that NG units could not be sent outside the US, because they were part of (note "part of") the militia, and the Constitution allows the militia to be called up only for domestic purposes -- to repel invasion, suppress insurrection, and execute the laws of the Union. As a result in WWI Guard units were broken up and members drafted into regular Army units as individuals, an inefficient operation and one displeasing to the Guard).
So let's take a look at the legislative history of those statutes….
Debates over the 1903 Dick Act: Original proposal was to have National Guard and also two classes of volunteer reserves, consisting of NG units that had volunteered as federal reserves and whose officers would be approved in advance by the Army, and who would be available for service overseas (that is, the Guard itself would be more like the modern State National Guards, and the volunteer reserves would be more like the modern National Guard).
Rep. Wiley (p.7111) "In my remarks on this occasion it is not my purpose to discuss the militia in its widest sense, as including the whole military force of the nation . I shall confine myself to the great body of the citizens in the different states and territories of the Union who, actuated by patriotic impulses, have enrolled for instruction and discipline as a reserve force …"
Rep. Stark (Appendix p. 387): "To my mind our institutions are best served by having a small regular army as nucleus, garrison duty, and the first line of defense; then for the support to be first called out, the organized militias commonly known as the "National Guard;" then for the third line, the national volunteer reserve … Then comes the reserve militia, which includes all able-bodied men between the ages of 18 and 45 ."
Sen. Proctor (36 Cong. Rec. 125 (Dec. 9 1902): "The old law makes every able-bodied man in the country a member of the militia, and provides no further organization. This bill separates and makes a class which can be called into active service."
Proctor, at p. 305: "The National Guard is in full organization; it is already created and would naturally be first called upon if wanted for a limited time, and then the militia would be called upon ."
At p. 299-300, Sen. Pettus objects that creating the volunteer reserves might exceed Congressional powers over the militia, since their officers are approved by federal authorities and the States have no control over use of these units. [The Constitution provides that the States shall appoint officers of the militia] Sen. Proctor responds " The troops provided for in section 24 are not militia . They are volunteers. They are called the national volunteer reserve, as the Senator will see. They are not called militia."
At p. 303, Sen. Foraker backs Proctor: " [W]hile this reserve is part of the militia, in the sense that all men are a part of the militia who are between the ages of 18 and 45, it is not a part of the militia in any other sense.. "
P. 354, Sen. Bacon, in opposition, says that if this volunteer force were the militia, it would clearly violate the letter of the Constitution. He continues, " There is no possible question about the fact that it is not part of the militia , so far as the letter goes. But I think it is violative of the spirit and intent of the Constitution in that it makes a part of the regular establishment that which the Constitution intended should be the militia."
Sen. Gillette: (p. 9914) " The militia of the United States are citizens between certain ages capable of performing military service . That is the militia of the United States. It consists of all citizens of that type, and is divided into the unorganized militia, the organized militia, and certain naval units. The National Guard of the States and Territories are organizations composed of these militiamen, members of the unorganized militia, who voluntarily have enlisted in specific organizations for a specific purpose with a specific limitation. That is the National Guard of the Nation. There is a third category, the National Guard of the United States. That organization is set up under a specific act of the Congress …"
Sen. Sheppard (p. 9985) cites a 1916 statute parallelling 10 USC 311, and also defining the army of the US as the regular army, the National Guard, etc. He explains, "Every National Guard man who takes the oath takes it with the understanding that he is part of the Regular Army …."
There is only one Militia and it is the one enumerated as a fundamental right in Amendment II of the U.S. Constitution which came from Article I, Section 13, of the Virginia Declaration of Rights. Virginia had the most developed militia system as the oldest colony and it was this system which so heavily dominated the thinking of those who wrote the U.S. Constitution.
A Militia according to the various Virginia Militia Acts and Acts Against Invasions and Insurrections set forth the following basic guidelines:
The current National Guard is not what was etched into the U.S. Constitution's Second Amendment. There is no such thing as an organized and unorganized militia or an unarmed militia. Militia service is compulsory and integrated with the civil authority. The Virginia militia was so well regulated and maintained that this helped enable Virginia to fight the civil war so effectively. This is also why the Militia system guaranteed under the United States Constitution was changed so drastically so that states like Virginia could not wage war again. The concept of the National Guard is an unconstitutional usurpation of the fundamental right to a well regulated militia system.
Posted by: Rudy DiGiacinto at April 2, 2005 08:53 PM
The National Guard cannot be the militia if one of the presumed functions of the militia is to serve as the people's final balance of power against the Federal government. The National Guard is an arm of the US government, and an arm of the government cannot serve as a protection against itself.
It should not be forgotten that the organization of the Guard is very different from that of the old state's militias that existed up through the US Civil War. Prior to 1865, each state militia functioned as its states mini army, with its own complete organization including infantry, logistics, medical, and artillery support. Constructing a larger army from the militias was a relatively simple task of banding state militias together, as the Confederate States proved effectively in 1861.
The current organization of the Guard makes this impossible. No state (nor any regional collection of states) has all the elements to build a complete fighting force from the guard units. Some have infantry, some have transport, some have armor, many have highly specialized communication or logistical units that would be expensive to maintain in peacetime. Nobody has all the pieces. Surely this cannot be by chance.
But the final argument against the idea of the Guard being the militia comes from our nation's history. The Guard traces its roots back to the Minutemen of the American Revolution, the citizen soldiers who fought and died in order to forge a new nation starting at Lexington and Concord.
However if one imagines that morning in April 1775, with the Minutemen facing off against the British regulars, it's only fair to let our imagination drift a bit away from the bridge where they fought, and over to the Concord town green. At that spot perhaps there was a pole, with a flag fluttering in the breeze. That flag, of course, would have been the Union Jack as Massachusetts was a British colony and had been during the entire time the Minutemen had organized, armed, and trained. Unlike today's National Guard, the Minutemen were totally independent of the government of their day.
In order to protect freedom, a militia must always be independent of the government. Any military force that must answer to the government is a force that may not be able to answer "no."
Posted by: Rick Lippincott at April 4, 2005 01:29 PM
Certainly no specialist in the topic here, but it seems to me that little-known, barely-funded, state-recognized "state defense forces," "state guards" and "home guards" in those 25 states or so which have them today are the closest thing to a genuine "organized militia" today. Take a look at the State Guard Association of the United States web site for more info about them.
Posted by: Dan at April 5, 2005 10:31 AM
To state that the National Guard is not a militia under our Constitution is, in my view, incorrect, and certainly not in accord with US Supreme Court decisions. "The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution." Maryland v. United States, 381 U.S. 41 (1965).
A more important question is whether the National Guard is the sole militia under our Constitution. This question has also been discussed by the Supreme Court. In Perpich v. Department of Defense, 496 U.S. 334 (1990), the court held: "Congress has provided by statute that in addition to its National Guard, a State may provide and maintain at its own expense a defense force that is exempt from being drafted into the Armed Forces of the United States. See 32 U.S.C. 109(c). As long as that provision remains in effect, there is no basis for an argument that the federal statutory scheme deprives Minnesota of any constitutional entitlement to a separate militia of its own."
Thus, while the National Guard is a "constitutional militia", it is not the ONLY "constitutional militia". If it where, it is highly probable that the dual enlistment charateristics of the present day National Guard would be unconstitutional. Id.
Posted by: Legal at April 5, 2005 01:53 PM
About David Hardy. David T. Hardy has practiced law since 1975 and has five books and thirteen law review articles in print; one of the articles has been cited by the U.S. Supreme Court and eleven of the thirteen U.S. Circuit Courts of Appeals.