Article on Federalization of the National Guard
Blogging will be a bit light today--Clayton Cramer is coming over to be filmed for the documentary--but here's an interesting law review article on the Perpich case (written before the Supreme Court ruled. He notes that the lead-up to the case began when governors objected to their NG units being called to federal service for training missions in South America. The statutes then permitted a governor to block federal call-up for foriegn service in peacetime. Congress amended the law to provide that no governor could object based on the nature of a training mission.
The author notes:
The current system is characterized by federal control over almost all facets of the Guards. There is almost no area of operation in which the Guards are not constrained by federal control. The Officering Clause has been completely vitiated by the 'federal recognition' system: no unit receiving federal funds or support may place an officer in its table of organization unless that officer has been federally recognized. Federal recognition, which means the officer must meet standards identical to federal active duty officers, must also be 'renewed' upon promotion in rank or position. This scheme supplants the state's role in choosing and installing state officers, for no state's Guard can accomplish federally mandated missions without making use of federal funding and support.
State control in administering matters such as training, personnel, logistics, doctrine, and military justice has been eliminated by a system of federal conditional spending. This purse string has been used to put the states in a 'catch-22' situation¾retain autonomy and lose funding or accept funding and submit to federal control. In addition, legislation prohibiting the states from keeping 'troops' except as directed by the President has been read to apply to the militia. Although the term 'Troops' in the Constitution was probably intended to apply to standing armies, this seemingly unfounded application of the prohibition to the militia means that even if the states could afford to maintain their militia in accordance with federal standards without federal assistance, they would be forbidden to do so. Moreover, today the state National Guards are organized into federal divisional structures requiring the maintenance [Page 344] of state units that have no purpose other than to support a national defense strategy. For example, what possible use could a state have for a Military Intelligence Battalion whose primary mission is to collect and analyze tactical and strategic battle information?
This state of the law ignores important interests of the states. Specifically, it prevents states from independently, and some would say effectively, administering a state institution to meet state requirements. In addition, the states are now forced to participate in and contribute to a foreign policy with which they may vehemently disagree, and the development of which the Constitution denies them any meaningful political mechanism to change. In a more general sense, however, the current law prevents the states from legitimately acting as states. It intrudes upon that zone of governmental activity presumably reserved to the states in our federal system. Such harm to the states becomes crucial when analyzing the constitutionality of the current statutory scheme.
I don't have the legal training of the authors, but it seems to me that the National Guard started out as the "named" militia, and when they started, around 100 years ago, they pretty much fit the definition in the various Militia Acts.
Since the Guard is so Federal-Structured, and functionally is no different from the Army and Air Force Reserves, a case could be made today that they are not part of the Militia any longer, but are actually part of the Standing Army.
Such a (Judicial) declaration would leave the States without Militia, an untenable position if one takes one's Constitutional duties seriously.
Would this then open the door for a raising and "naming" of new militia? Perhaps an elevation of the "unorganized" militia?
Posted by: Rivrdog at April 9, 2005 08:37 PM
This sounds spookily like the policy carried out in this country (actually yours as well, then) in the 1680's by James II. Parliament had a ready answer to the problem: they appointed someone else king and had him chase James out.
More seriously, it sounds like what is happening is the evolution of the National Guard into something like the British Territorial Army. Personally I wouldn't worry about it unless you're planning on carrying out a civil war. War is a much more complicated business than it used to be 200 years ago and if you want the Guard to continue to be useful I think you have to recognise that increased sophistication and, yes, centralisation, is required.
Posted by: Alex Swanson at April 10, 2005 07:33 AM
The reason why this topic interests me so much is that the present day realities of the National Guard, and the federal control thereof, directly parallel the objections voiced by the antifederalists to the militia clause contained in the Constitution.
The 2nd in no way amends those provisions, allowing the feds to arm the militia and to call them up for service. Therefore, it could be argued that the 2nd guarantees private ownership of arms so that the state could call these armed civilians up during an emergency.
Posted by: Legal at April 11, 2005 01:03 PM
Remember the civil war? I assure you Federal officials do. The Constitution as written actually says the states are superior to the federal. The reason I don't think very highly of Abe Lincoln is that his civil war made the feds the superior player.
Posted by: Steve Shaw at April 11, 2005 01:05 PM
As far as I know, nobody has tested the "unconstitutional conditions" doctrine with regard to the conditional funding arrangment of the National Guard. But there is a relatively recent (2001) California case involving a gay Guard officer in which the state was faced with the choice of complying with its own antidiscrimination laws or complying with the federal recognition standards referenced above. The state argued that it was compelled by the federal funding arrangement to discharge the officer. The court held otherwise: the state is required by its own law to retain the officer at the risk of losing all its federal National Guard funding.
Interesting stuff, and goes to the core of the 2nd Am debate: does this provision relate to the power of the states to arm citizens as militia, or to the right of citizens to arm themselves?
Posted by: Norman Heath at April 11, 2005 06:15 PM
Mr. Heath states: "Interesting stuff, and goes to the core of the 2nd Am debate: does this provision relate to the power of the states to arm citizens as militia, or to the right of citizens to arm themselves?"
I think it is both. Consider this, the original text of the 2nd Amendment was as follows:"A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."
Elbridge Gerry, an antifederalist objected to the wording during the debates in Congress as follows:
"Mr. Gerry — This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. THEY CAN DECLARE WHO ARE THOSE RELIGIOUSLY SCRUPULOUS, AND PREVENT THEM FROM BEARING ARMS. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures ith respect to a militia, as make a standing army necessary. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishement of an effective militia to the eastward. The assembly of Massachusetts, seeing the rapid progress that administration were making, to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia, but they were always defeated by the influence of the crown." The Congressional Register, 17 August 1789. (Emphasis supplied).
I think that one of the purposes of the 2nd was to prevent the feds from excluding citizens from service in the militia for reasons unrelated to their physical ability to serve. "... the right of the people to ... bear arms..." The other purpose was to allow persons to arm themselves. "... the right of the people to ... keep arms..."
"Keep" appears to be derived from English game laws which prohibited the keeping of certain weapons by individuals for fear of their use by poachers. Case law developed after the English Bill of Rights excluded firearms from the coverage of these game laws because firearms had additional legitimate uses, such as self defense and bearing arms in the militia. Thus, my view is that the "keep" language implicates an individual right not merely to own guns, but to use them for all legitimate private purposes. While the "bear" language prohibits the feds from excluding you from militia service.
Yes I realize that federal exclusions have occured. However, I do feel that those exclusions SHOULD fail a 2nd Amendment challenge.
Posted by: Legal at April 12, 2005 09:21 AM
All this federal encroachment upon states rights arise out of the 17th Amendment which brought us the direct (ie, by voters) election of senators. Prior to the 17th A, the senators were selected by the state governments as their representatives in the federal govt, protecting their state govt's interests. Unfunded mandates passed by the federal govt, the appointment of US Sup Ct "justices" who "discover" "rights" (e.g., privacy) that declared state laws against abortion and homosexuality "unconstitutional", international treaties that may trump state laws, and this re the Guard & militia are only a few of the examples of the fruit of the 17th A (the 55 mph national speed limit was another). We must repeal the 17th A!
Posted by: John Koch at April 18, 2005 12:15 PM
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