- 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)
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).
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)
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)
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.