Q. Wasn’t the National Guard originally the state militia under state control? Today there are over 100,000 National Guard currently deployed in military conflicts around the world. Did the states have to give their permission? What is the effect of this deployment on the ability of states to cope with domestic emergencies like hurricanes or earthquakes or terrorist attacks?

Answer:

You’re right. If I may completely misquote the Bible, in the beginning there was the local militia and only the local militia. Prior to the Revolutionary War, each colony had an organized militia comprised of all able-bodied males of a certain age, to maintain order and protect colonists from Indian raids and other external security threats. When the British attempted to disarm their New World colony during 1774-75, the population responded by forming private militias independent of the royal governor’s control. These colonial militias composed the bulk of the armies that eventually won independence.

Given its recent experience, the embryonic nation deeply distrusted the idea of a standing army, especially since at that time a standing army meant an army of mercenaries, loyal only to their paycheck and the spoils of war. After independence the federal government reduced its standing army to a handful of men, entrusting the nation’s defense to the state militias. The Articles of Confederation, the first Constitution of the United States, required each state to maintain a well-armed militia. Congress could form a standing army only with the consent of nine of the thirteen states.

At the Constitutional Convention of 1787 an extended discussion took place regarding the kind of military the country should have and what level of government should control it. Article 1 of the Constitution reflects the compromise that emerged from that discussion.

Article 1, § 10 prohibits States from having their own standing armies.[1] Article 1, §8 gives the federal government the right to call out the militia but also gives states significant authority with respect to appointing officers and training the militia.[2] Federalists like Alexander Hamilton, who originally advocated complete federal control of all military forces, believed these provisions would protect the states from unwarranted federal interference. “What reasonable cause of apprehension can be inferred from a power of the Union to prescribe regulations for the militia and to command its services when necessary”, Hamilton wrote, “while the particular states are to have the sole and exclusive appointment of officers…There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.” [3]

The Militia Act of 1792 established a “Uniform Militia throughout the United States”. Every able-bodied citizen age 18 to 45 was to be enrolled and had to equip himself with the appropriate weaponry.[4] The militia did fight in most of the wars of the 19^th century: the War of 1812, the Mexican War of 1846-48 and others.

The Spanish American War marked a watershed event in U.S. military and state militia history. It was the first major war fought against a country whose territory was not next to the U.S. When it was over the U.S. had taken possession of most of Spain’s empire and assumed the consequent need to post thousands of troops to control the indigenous people of that empire.

State militias formed the bulk of the fighters in Cuba in the 1898 war. Just before war broke out the U.S. Regular Army consisted of 28,000 soldiers; the state militias had 114,000. State militias often enlisted as full regiments that kept their state identities and appointed their own officers.

The Spanish American War revealed how inadequate the current military structure was to carry on major foreign incursions. The Dodge Commission Report on the Conduct of the War concluded, “The situation found the country unprepared with any large stock of arms, ammunition, clothing supplies and equipment.” In 1901, President Theodore Roosevelt declared. “Our militia law is obsolete and worthless.”[5]

The Spanish American War also marked the approximate time when the cost and sophistication of the weaponry of wars was beyond the capabilities of the average household. No longer would small arms owned by individuals be sufficient.

To reorganize and upgrade the military Congress passed a series of laws. In 1903 it established the National Board for the Promotion of Rifle Practice, which in 1905 created the Civilian Marksmanship Program (CMP). The CMP sold or gave surplus military rifles and ammunition to shooting clubs and their members for rifle training and competitions.

In 1903, Congressman Charles Dick of Ohio introduced a bill that began the federalization of state militias. The Dick Act renamed the state militia, the National Guard, or Organized Militia. It was the first statutory use of the term National Guard.[6]

In the original Dick Act Congress contemplated using the services of the new federalized militia “only upon the soil of the United States or its Territories”.[7]

In 1908 the Dick Act was amended to require the National Guard be available for service “either within or without the territory of the United States”. When the Army made plans to invoke that authority to use Guard units south of the Mexican Border to pursue Pancho Villa, the constitutionality of this provision was challenged. In 1912 the Judge Advocate General of the U.S. Army held that there was no constitutional authority that allowed Congress to require the overseas use of the militia. The same year U.S. Attorney General (AG) Wickersham concurred, citing the words of the Constitution in his argument. “It is certain that it is only upon one or more of these three occasions—when it is necessary to suppress insurrections, repel invasions or to execute the laws of the United States—that even Congress can call this militia into the service of the united States, or authorize it to be done.”[8]

In response to these judicial opinions and the widening conflict in Europe, Congress passed the National Defense Act of 1916 (NDA).[9] The NDA circumvented the AG’s opinion by giving the President the authority to draft any member of the militia into the federal service. Entire units were duly “drafted”. It created what eventually became the dual structure of the state Guards. When they were drafted they became federal guards subject to federal military discipline and orders.

The NDA expressly required the Army of the U.S. to include not only the “Regular Army” but also the “national Guard while in the service of the United States”. It authorized the Regular Army to form its own reserves. This gave rise to the U.S. Army Reserve, the Officers’ Reserve Corps and the Reserve Officers’ Training Corps (ROTC).

The NDA replaced the state militia codes with the National Military Code and authorized the President to issue rules regarding the number and kinds of units each state would be required to maintain. It also prohibited states from maintaining troops other than those directed by the President. However, it did allow states to create their own state-funded reserve units immune from federal control (“nothing contained in this act shall prevent the organization and maintenance of state police or Constabulary”).[10]

The NDA also all-but-eliminated the Constitutional protection that reserved appointment of militia officers to the states. It did this by requiring that units receiving federal funds gain federal approval before any officer could be commissioned.

Several states challenged the NDA provision that allowed the federal government to draft National Guardsmen and send them overseas.[11] The provision was upheld by the Supreme Court in 1918.[12] The Court, in effect, overruled the opinions of the Adjutant General and the Attorney General.

In 1920 Congress established three components of the “Army of the United States”: Regular Army, civilian National Guard and civilian Reserve Officer Training Corps. It gave the federal government control over virtually every operational detail of the National Guard. And it broadened the President’s power, permitting him to activate guardsmen in an “emergency” declared by Congress.

The 1933 amendments to the l916 Act statutorily codified what continues to be the relationship between state militia and the National Guard. It created two overlapping but distinct organizations: the national guard of the various states and the national guard of the United States. All persons enlisted in the state national guard were simultaneously enlisted in the national guard of the United States. In their latter capacity they became part of the Enlisted Reserve Corps of the Army. They could be ordered into active service whenever congress declared a national emergency. “Upon being relieved from active duty in the military service of the United States all individuals and units shall thereupon revert to their National Guard status.” All guardsmen were required to take a dual oath to the federal and relevant state governments.

Thus, after 1933, during peacetime the U.S. National Guard did not exist. During war time and times of national emergency it came to life and became part of the modern army of the U.S.

There was, and is still, an important distinction between the state and national guards. The state guard has a domestic law enforcement role (posse comitatus). That disappears when its members are called to federal duty. U.S. law prohibits the Army or Air Force from engaging in domestic law enforcement.

In 1952, Congress further expanded the powers of the President over the state guards by allowing him to call out the guard for 15 days out of each year for any reason. It marked the first incursion of federal government into the peacetime mustering of the state militia. However, in deference to the states the Act statutorily gave governors the right to refuse deployment of their state guards.[13]

Guard members made up substantial portions of the U.S. forces deployed in World War I, World War II and Korea. Guard units were activated for the Berlin Airlift and during the Cuban missile crisis. President Eisenhower federalized the entire Arkansas National Guard to prevent the state’s governor from using the Guard to prevent court-ordered desegregation in 1956, and President Kennedy did the same in Mississippi in 1962.

In 1965, Secretary of Defense Robert McNamara and the Joint Chiefs of Staff recommended a call-up of 235,000 members of the Army National Guard and Reserve for the expanding war in Vietnam. According to Chairman of the Joint Chiefs General Earl Wheeler, “We felt it would be desirable to have a reserve call-up in order to make sure that the people of the United States knew that we were in a war and not engaged in some two-penny military adventure.”[14] President Johnson refused, apparently out of reluctance to spread the effects of the war throughout the population. When Johnson finally called up a small number of Guard units,[15] he did so at the same time he announced he would not seek reelection.

During the 1960s the Guard was overwhelmingly white, male and middle-class.[16] Many who enlisted did so to avoid military service. The reputation of the Guard declined. Many families whose sons were drafted resented the fact that people who had received reserve pay for years were staying home.[17]

In 1973 the Nixon administration ended the draft and adopted the Total Force concept for the now all-volunteer military. One of the creators of that policy, Secretary of Defense Melvin Laird, stated, “Members of the National Guard and Reserve, instead of draftees, will be the initial and primary source for augmentation of the active forces in any further emergency requiring rapid and substantial expansion of active forces.”[18]

The Pentagon embraced the Total Force concept for two reasons. It saves money because maintaining reserve forces is less costly than maintaining a large standing military. And it ensures that a broad cross-section of the American people is invested in military operations abroad.

The first large-scale implementation of the Total Force Policy came in the 1990 Persian Gulf War. The Army activated 150,000 reservists, and sent 69 percent of them to the Gulf. General Colin Powell commented that the contributions of reservists were “one of the major success stories of the entire operation.”[19] According to one analysis, by 1990, 18 of 24 Army divisions available in the event of war were provided in whole or in part by state Guards. Almost 75 percent of the nation’s air defense interceptor forces, 34 percent of its tactical airlift capability and 25 percent of its tactical fighters were Air National Guard assets.[20]

In the mid 1980s, the jurisdictional tension between state and nation over control of state militias erupted again. President Reagan federalized many Guard units and sent them for training in Honduras, a primary staging area for the contras, a U.S.-armed guerrilla force fighting to overthrow the government of Nicaragua. Many governors opposed Reagan’s foreign policy in Central America.

As noted above, in 1952 Congress had granted governors the right to refuse deployment of state guards. In 1985 the Governor of California exercised that authority by refusing to consent to the training of 450 members of the California National Guard in Honduras. The Governor of Maine shortly thereafter also refused consent for a similar mission.[21]

Congress responded in 1986 by enacting the Montgomery Amendment that stripped governors of their right to stop the deployment of state guards if they withheld consent “with regard to active duty outside the United States, its territories and its possessions, because of any objection to the location, purpose, type or schedule of such active duty.” [22]

Many states asked the courts to overturn the Montgomery Amendment. Minnesota’s petition became the central case. A divided panel of the Court of Appeals of the Eighth Circuit agreed, ruling that the Militia clauses of the Constitution preserved state authority over the training of the national Guard and its membership unless and until congress “determined that there was some sort of exigency or extraordinary need to exert federal power.” In response to a petition for rehearing en banc, however, the Court of Appeals vacated the panel’s decision and affirmed the judgment of the district court upholding the Amendment’s constitutionality.

The U.S. Supreme Court decided the case in June 1990.[23] It ruled that, “Article I’s plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States, without either the consent of a State Governor or the declaration of a national emergency.” Moreover, “since the original gubernatorial veto was not constitutionally compelled, its partial repeal by the Amendment is constitutionally valid”.

However, the Court did decide that governors retained the right to reject deployment if they could prove that it significantly affected the ability of the state guard to carry out its state activities. “The Minnesota unit, which includes about 13,000 members, is affected only slightly when a few dozen, or at most a few hundred, soldiers are ordered into active service for brief periods of time. Neither the State’s basic training responsibility, nor its ability to rely on its own Guard in state emergency situations, is significantly affected. Indeed, if the federal training mission were to interfere with the State Guard’s capacity to respond to local emergencies, the Montgomery Amendment would permit the Governor to veto the proposed mission.”

The Court added, “The Governor and the United States agree that if the federalization of the Guard would interfere with the State Guard’s ability to address a local emergency, that circumstance would be a valid basis for a gubernatorial veto”.

The Court also noted, “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”.

Today there are about 457,000 personnel in the National Guard (350,000 in the Army Guard and 107,000 in the Air Guard) in 54 locations, including all 50 states, the District of Columbia, Guam, the Virgin Islands and Puerto Rico.[24] Guard soldiers are generally older (the average age is 32) and have less training than active-duty soldiers (although 46 percent have active duty experience).

Since President Bush declared a national emergency on September 14, 2001 over half of Army Guard personnel (more than 175,000) and one-third of Air Guard personnel (about 35,000) have been alerted or activated.[25]

As of March 2004, 102,500 Guard members were on active duty under federal authority. (By comparison, about 5,500 were activated on federal missions in the days before the September 11 attacks.) About 50,000 are stationed in Iraq, comprising 40 percent of U.S. forces there. In July 2004 the Pentagon announced that it is considering extending the mobilization of Guard members beyond the 24-month limit established in September 2001 to prevent excessive strain on non-active duty soldiers.[26]

This is the largest call-up of the National Guard since World War II. In addition to Iraq and Afghanistan, National Guard troops are serving in Bosnia, Kosovo and the Sinai. In fact, the latter peacekeeping missions are entirely in the Guard’s hands.

The Guard itself has been hard pressed to provide sufficiently skilled people to the Armed Forces. Some specialties have been called up at rates of more than 50 percent in the past 2 1/2 years – almost three times the rate the Department of Defense says is sustainable.[27] Over 7,000 Army National Guard personnel were converted from other specialties to avoid shortages of military police units in Iraq.[28] Since September 11, 2001 the Army Guard has initiated more than 71,000 personnel transfers to provide deploying units with soldiers qualified in their specialties.

How has the massive mobilization of the Guard in recent months affected the states? Skilled Guards are in high demand for overseas missions and homeland security. For example 70 percent of enhanced brigades and 75 percent of divisional combat battalions, frequently called on by state governors to respond to natural disasters, were deployed overseas between September 2001 and March 2004.[29]

The Government Accountability Office believes the extensive use of Guard units “has resulted in a steady decline in the war fighting readiness of non-deployed units.”[30] Compounding this problem is that the Army Guard has yet to receive any wartime supplemental funding in fiscal year 2004.[31]

National Guard forces are increasing their role in Iraq because the active-duty Army is not large enough. When the next rotation of soldiers moves into Iraq late in 2004, up to 50 percent could be Guard and Reserve, compared to 39 percent in July and 25 percent in 2003.[32] This means even more Guard members will not be available to respond to natural disasters or terrorist threats. Both the conservative Heritage Foundation and the liberal Center for American Progress agree that the National Guard must be available to assist with homeland security even if it requires expanding the size of the standing Army and rethinking the Total Force concept.[33]

Governors of both political parties are wondering if they will be short-handed in cases of domestic emergencies. Major General Timothy Lowenberg, Commander of the Washington State National Guard, after attended a meeting of meeting of governors and Pentagon officials, said, “There are absolutely no partisan patterns to the concerns being raised. They are being articulated by governors of both parties.”[34]

Some states, like Texas and Nevada, have only a modest share (12 percent) of their guard currently stationed overseas. But a number of states have much higher proportions. New Jersey has 60 percent of its state Guard forces on federal active duty. More than 40 percent of New York’s Guard has been alerted or mobilized for federal duty, meaning neither they nor their units’ equipment are available for homeland security. In Washington 62 percent of the state’s Army Guard soldiers have been deployed; in Idaho the number is 80 percent.

Virginia, North Carolina and the rest of the southeastern coast are facing hurricane season, a time when the Guard traditionally plays a crucial role in clean up and relief efforts. The center of the country, especially Missouri, is concerned about flooding. Western states worry about wildfires. Oregon’s National Guard, for example, has half its usual number of firefighters because of federal call-ups.[35]

There is also a financial impact on states from the call up of the guard. In Montana and California the Guard has withdrawn its Black Hawk helicopters from the job of responding to small fires that can flare into forest fires, forcing the states to contract with private companies to do the job.[36] More than 130 Arizona prison guards are serving overseas, contributing to problems in crowded prisons. Tennessee has seen its rural police and sheriff’s departments depleted by call-ups.[37]

States are concerned that extensive federal use of the Guard may discourage reenlistment. Nationwide the Army is about 12 percent behind in its National Guard recruitment goals.[38]

What does the near future bring? There is a bill, sponsored by Representative Charles Rangel, that would reinstitute the draft. Some call the use of the National Guard and reservists as a “back door draft”. But there is little support in Washington for a resurrection of the draft, which has not been used since 1973. Instead the Pentagon is calling up more members of the National Guard and Reserves, extending tours of duty, using stop-loss to prevent those who have completed their enlistments from leaving, calling up former active-duty personnel who have reserve commitments, and outsourcing non-combat operations to private contractors.[39]

If the massive posting of reservists and guard members abroad continues it could spawn renewed lawsuits. At least one has been filed, in August of 2004, by a sergeant in the Army National Guard who viewed as unconstitutional the Army’s “stop-loss” orders that prevent reservists from leaving the military when their enlistment periods end.[40]

It is also possible that states could once again refuse to send guards abroad, citing the 1990 Supreme Court decision that gave them that right if deployment would “significantly affect” their ability to satisfy their traditional functions.