The National Guard Is Not A Constitutional State Militia


The National Guard is not a “Militia” nor any part of “the Militia of the several States”

All to often today, one hears that the National Guard is the modern “militia”; or even that the very concept of the “militia” is entirely outdated. Self, evidently, though, if the National Guard is the is the modern “militia”, then the “militia” cannot be an outdated concept. Irregardless, properly understood in a legal and historical context, the National Guard is incapable and insufficient to perform all the functions required of “[a] well regulated Militia”. (footnote 1)

The propaganda the National Guard puts forth tries to characterize it as some sort of “militia”, even claiming that its birthdate should be taken as the day the Massachusetts Militia was first mustered in the mid 1600s. This is exceptionally dilute hogwash. At the earliest the National Guard (along with its naval component, the so-called Naval Militia) began only in 1903; and the National Guard started to assume most of its present form only in several statutes enacted from 1908 to 1916. (footnote 2)

  • The National Guard is distinguishable from, to the point of contradiction of, a true constitutional ‘Militia’ in numerous particulars.

    • 1.) The National Guard is composed exclusively of volunteers who sign enlistment contracts; whereas “the Militia of several States” are organizations not formed by contracts into which citizens voluntarily choose to enter, but instead based upon compulsory enrollment of every able-bodied adult American.
    • 2.) Members of the National Guard do not supply their own firearms, ammunition and accoutrements; or keep that equipment in their personal possession at all times in their own homes.
    • 3.) The National Guard may be called into the service with the General Government for other than the three constitutional purposes for which the Militia may be call[ed] forth—including to be dispatched overseas to fight in foreign wars and other military adventures.
    • 4.) When called into so-called “federal” service, the National Guard can be incorporated as Units of the regular Armed Forces; whereas the Militia can never be incorporated as units of the regular Armed Forces under any circumstances, because the Militia and the regular Armed Forces are constitutionally distinct and mutually separate establishments. (footnote 1) And
    • 5.) When called into “federal” service, the National Guard can come under the orders of the officers of the regular Armed Forces; whereas other than the President of the United States (and then only when the Militia are “call[ed] forth” for one or more of the three constitutionally explicit purposes), officers of the Armed forces can never command the Militia. (footnote 2)
    • Footnotes:

      1.) Compare and Contrast U.S. Const. art I, § 6, cls. 12 to 14 with cls. 15 and 16, and see U.S. Const. art II, § 2, cl. 1.

      2.) See U.S. Const. art I § 8, cl. 16.

  • The National Guard are not ‘Militia’, but instead ‘Troops, or Ships of War’ (Art. I § 10, cl. 3).

    Constitutionally:

    • 1.) The National Guard and the Naval Militia, do not constitute not any sort of “militia”, but instead are “Troops , or Ships of War” which the States may “keep *** in times of peace “with[ ] the Consent of Congress”. (footnote 1) And
    • 2.) Congress has conditioned its “Consent” upon the integration of the National Guard with the regular Armed Forces, in order to perform a multitude of tasks for which Congress lacks the constitutional authority “[t]o provide for calling forth the Militia”, (footnote 2) and which none of the States could constitutionally authorize on their own. (footnote 3)

    Footnotes:

    1.) See U.S. Const. art I § 10, cl. 3. Although this has largely been forgotten, it was recognized at the time of creation of the National Guard began. See e.g., Elihu Root, “ADDRESSES AT THE FIFTH ANNUAL CONVENTION OF THE INTERSTATE NATIONAL GUARD ASSOCIATION OF THE UNITED STATES, COLUMBUS, OHIO, May 4, 1903 in THE MILITARY AND COLONIAL POLICY OF THE UNITED STATES, ADDRESSES AND REPORTS (Cambridge Massachusetts, Harvard University Press, 1916), 137, especially at 149. The pernicious seed of this harvest sprouted much earlier, however, in the Supreme Court’s erroneous decision in Presser v. Illinois, 116 U.S. 252 (1886), which effectively (albeit unconstitutionally) rendered nugatory the constitutional duty–and with it the corresponding constitutional right–of all eligible citizens to serve in the Militia.

    2.) Whether some, or even many, of the conditions Congress has imposed with respect to the States’ “keep[ing] Troops, or Ships of War in Time of Peace” in the form of he National Guard are themselves unconstitutional is an open question which next to no one think important enough to ask. See, however, Perpich v. Department of Defense, 496 U.S. 334 (1900).

    3.) See U.S. Const. art I § 10, cls. 1 and 3.

  • The National Guard is utterly disqualified to perform one of the most important functions of the constitutional Militia—a ‘check and balance’ against ‘the standing army’.

    Whatever the propriety of its other uses, as a matter of law the National Guard is utterly disqualified to perform one of the most important functions of the constitutional Militia—namely to supply a “check and balance” against “the standing army”—because the National Guard itself is part of “the standing army”. For that very reason, the Militia are necessary to provide a “check and balance” against the National Guard. (footnote 1)

    Footnotes:

    1.) Or perhaps better yet, to absorb the National Guard entirely, State by State, as components of the Militia, leaving no State “Troops or Ships of War” under the control of Congress.

    See Thirteen Words, by Dr. Edwin Vieira, Jr., Bookmasters Inc., Ashland, Ohio (2013), page 25.

When Congress clothed the National Guard and the Naval Militia with the deceptive cloak of “the organized militia”, rather than candidly identifying them as the “‘Troops or Ships of War” which States may “keep * * * in time of Peace” “with[ ] the consent of Congress”, (footnote 3) this vital distinction was improperly abandoned. (footnote 4) Upon revitalization of the Militia it should be reinstated.

The National Guard is not a “militia”. The legislated structure of the National Guard is the exact opposite. The National Guard is a voluntary structure that is an adjunct of the Army and the Navy, which can and has been called up for reasons other than the 3 constitutional reasons required for “the Militia of the several States”. Constitutional Militia are never subject to the command of the officers of the regular Armed Forces, but only to the Militia officers appointed by the States, a direct “check and balance” against a “standing army”.

When the Militia are on active duty within the several States, for the States’ own purposes, the States enjoy the exclusive authority to prescribe and enforce rules for their governance. (footnote 5)

  • Footnotes

    1.) See  U.S. Constitution, amend. 2.

    2.) See An Act to promote the the efficiency of the militia, and for other purposes, Act of 21 January 1903, CHAP 196, 32 Stat. 775; An Act To further amend an Act entitled “An An Act to promote the the efficiency of the Militia, and for other purposes,” approved January twenty-first, nineteen hundred and three, Act 27 May 1908, CHAP 204, 35 Stat 399; An act to provide for raising the volunteer forces of the United States in time of actual or threatened war, Act of 25 April 1914, CHAP. 71, 38 Stat. 347; and An Act for making further and more effectual provision for the national defense, and for other purposes, Act 3 June 1916. CHAP 134, 39 Stat.166.

    3.) U.S. Const., art I § 10, cl. 3.

    4.) Contrast An Act to further Amend the Act entitled “An Act to promote the efficiency of the militia, and for other purposes,” approved January twenty-first, nineteen hundred and three, Act of 27 May 1908, CHAP, 204, §§ I and 6, 35 Stat. 399, 399, 401 (merely “the majority membership of courts-martial for the trial of officers or men of the militia when in the service of the United states shall be composed of militia officers”), with An Act to promote the efficiency of the Militia and for other purposes, Act of 21 January 1903, CHAP. 196, § 8, 32 Stat. 775, 776 (“courts-martial for the trial of officers or men of the militia, when in the service of the United States, shall be composed of militia officers only”).

    5.) Compare U.S. Const. art. I, § cl.16 with amend. X.