National Guard Acts

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National Guard Acts

Michael I. Spakand Donald F. Spak

The militia, a part of a country's armed forces that is likely to be called to serve only in emergencies, is the product of English common law and American colonial customs designed to protect cities and towns in times of emergency and to repel invaders. The Constitution originally created a standing federal army and navy supplemented by state militias. These state militias are known as the National Guard.

Although some of the Constitution's framers advocated federal control of the militias, others opposed it, fearing that the federal government could use the militias against the states. The Constitution resolved the issue in Article I, section 8, authorizing Congress to fund, support, and regulate the federal land and naval forces, and to provide for calling out the militia, but leaving the states with the power to appoint its own militia officers and train its own soldiers. Congress has the power:

to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

to provide and maintain a Navy;

to make Rules for the Government and Regulation of the land and naval Forces;

to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

At the time, each militiaman brought his own infantry weapon and ammunition to militia service and training. The Second Amendment preserved the private ownership of arms, especially for militia purposes: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In Article II, section 2, the president was designated the Commander in Chief of the Army and Navy of the United States, and "of the Militia of the several States, when called into the actual Service of the United States."

Accordingly, each militia was funded by Congress when " employed in the Service of the United States" (Article I, section 8), but otherwise funded and trained by the individual states and subject to control of the state governors. There was no standardized militia training, equipment, or organization.

The Militia Act of 1792 authorized the president to call the militia into federal service under certain circumstances, required all able-bodied men aged eighteen to forty-five to serve, to be armed with a musket or rifle at their own expense, and to participate in annual musters (formal military inspections), with each state legislature to direct the organization of the militia forces into military units. The military units called into "the Service of the United States" during the War of 1812 supported the federal armed forces, primarily in defensive missions.

During the 1800s the militia system fell into disrepair through lack of funding. After the Spanish-American War (1898), the federal government and many militiamen saw the need for a reformed militia. The Militia Act of 1903, better known as the Dick Act after U.S. Representative Charles Dick, a major general in the Ohio National Guard who was instrumental in passing the act, reorganized the militia as a recognized component of the military. The current version of the act (10 U.S.C. § 311) declares that the militia of the United States consists of all able-bodied males at least seventeen years of age and under forty-five years of age, who are citizens or who have declared an intention to become citizens of the United States. The act further divides the militia into two classes: (1) "the organized militia, which consists of the National Guard and the Naval Militia"; and (2) "the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia." The unorganized militia is not further defined.

The Dick Act of 1903 offered federal funds to each state to train and equip its National Guard, provided that the Guard drilled for a certain number of days per year, allowed federal inspections, conformed to federal rules, and met federal standards. The states accepted federal funding and allowed their militias to be standardized and improved. In this fashion, each state National Guard became well-trained, well-equipped, and ready to fulfill its domestic state mission as well as supporting the federal government upon being called into federal service by the president. The 1903 act provided federal funding for five days of annual training, but not for the mandated twenty-four drills each year. Subsequent acts increased the number of days of federal annual training and the number of state drills.

The 1903 act was amended in 1908 to allow Guardsmen to be called up for federal use outside the continental United States, although the attorney general wrote an opinion in 1912 that use of the National Guard outside U.S. territory was unconstitutional. This problem was resolved through later legislation that required Guardsmen to take a dual oath to both the federal and state governments, making each Guardsman a federal reservist available to be called into federal service.

See also: Militia Act; Posse Comitatus Act; Selective Service Act of 1917.

BIBLIOGRAPHY

Donnelly, William M. "The Root Reforms and the National Guard." United States Army Center of Military History. <http://www.army.mil/cmh-pg/documents/1901/Root-NG.htm>.

Dougherty, Chuck. "The Minutemen, the National Guard, and the Private Militia Movement: Will the Real Militia Please Stand Up." 28 John Marshall Law Review 959 (1995). Excerpts at the University of Dayton School of Law. <http://academic.udayton.edu/health/syllabi/Bioterrorism/8Military>.

Rothstein, Julius. "The History of the National Guard Bureau." U.S. Army National Guard Bureau. <http://www.neg.dtic.mil>.