With the passage of The National Defense Act of 1916, congress found a vehicle to get the National Guard overseas, by permitting members of the militia to be drafted. Entire units were
drafted. In 1918 the provisions allowing for members of the National Guard to be drafted for overseas service were challenged in court and In these cases, consolidated for appeal, several members of state National Guards challenged the draft law asserting that insofar as the NDA permitted them to be drafted for service overseas, it violated clause 15, which confers on Congress the right to call 'forth the Militia to execute the Laws of the Union, supress insurrections and repeal Invasions.
The Court began its opinion by noting that '[t]he highest duty of the citizen is to bear arms at the call of the nation.' The Court then proceeded to discuss the history of Congress's use of the draft to carry out its national defense responsibilities under the Army Clause. Reasoning that the Militia Clauses were not to be read as a limitation on Congress's power when that power needs to be most expansive, the Court held that the power of Congress 'was expressly granted by the Constitution . . . in the power to declare war, which means a power to carry on the war successfully, i.e., with the means necessary.'
Interpreting clauses 15 and 16 in this way, the Court approved of wartime drafting of citizens who were also members of the militia, even though such a scheme came dangerously close to allowing Congress to use the militia abroad in the face of clause 15. Thus, in order to allow Congress to defend the nation in war, the Court gave birth to the legal fiction of Guards qua Reserves. In later years this scheme would be incorporated into federal statutory provisions. The dual status of the National Guard was imminent.
The Act of June 15, 1933 created the National Guard of the United States composed of the portions of the state Guards in the service of the United States. This enactment was the inception of the federal militia as a statutory entity. As a practical matter, during peacetime the National Guard was a fiction. During war, this organization came to life and became part of the modern army of the United States. This Act required all guardsmen to take a dual oath to both the federal and relevant state governments, and made, in essence, every state guardsman a federal reservist as well.
The Armed Forces Reserve Act of 1952 codified the modern system. This Act provided that guardsmen could be called out by the President for fifteen days out of each year for any reason, subject to the consent of the Governor. This provision was the first incursion of the federal government into peacetime mustering of the state militia. Presumably, the gubernatorial veto provision ensured consistency with the state powers described in the Militia Clauses. Logically, there were only two circumstances under which the President was authorized to call forth the militia. The militia could be used either (1) for 'core militia' functions, that is, in a manner contemplated by the language or structure of clause 15, such as repelling invasions or during times of war or national emergency, or (2) when a Governor expressly consents, thereby protecting the institutional interests of the state.
The Supreme Court has ruled a couple times (Dukakis v. Dept of Defense comes to mind) that the president ultimately controls the National Guard. This battle is once again being fought in the courts over the closing of many Guard facilities. So far the lower courts are upholding the earlier decisions.
The only militia that could be considered to be totally controlled by the states would be the various state defense forces that many states maintain without any federal funding. I would bet that if the president wanted to use them in an emergency that legal precident would allow him to call them into federal service also.
I have taken many of my points from a George Washington Law Review Artcile you can find here:
http://www.saf.org/LawReviews/Mullins1.htm
Quote:
Originally Posted by Jeff White
Any militia that doesn't accept the president as it's commander in chief and fails to abide by the provisions of federal and state law concerning the militia is nothing more then a rogue unit.
I dont believe that is entirely the case, but until i can find the appropriate statues, i'm not going to definitively say otherwise.
Private military units are not covered by the Second Amendment. In 1886 the USSC ruled on Presser v. Illinois:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=116&invol=252
We are next to inquire whether the fifth and sixth sections of article 11 of the Military Code are in violation of the other provisions of the constitution of the United States relied on by the plaintiff in error. The first of these is the second amendment, which declares: '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.'
We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.' See, also, Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819;Com. v. Purchase, 2 Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect.
The court said this in regards to private unauthorized military units:
Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.
It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are [116 U.S. 252, 268] authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine. In the case of New York v. Miln, 11 Pet. 102, 139, this court said: 'We choose rather to plant ourselves on what we consider impregnable positions. They are these: that a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the constitution of the United States; that, by virtue of this, it is not only the right but the bounden and solemn duty of a state to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated,' namely by the constitution and laws of the United States. See, also, Gibbons v. Ogden, 9 Wheat. 1, 203; Gilman v. Philadelphia, 3 Wall. 713; License Tax Cases, 5 Wall. 462; U. S. v. Dewitt, 9 Wall. 41; U. S. v. Cruikshank, 92 U.S. 542 . These considerations and authorities sustain the power exercised by the legislature of Illinois in the enactment of sections 5 and 6 of article 11 of the Military Code.
I think that this pretty plainly would lump any unit, organized or unorganized that didn't follow the laws prescribed for the conduct of military units to be in violation of the law. It also pretty much says that the regulation of the militia is a government responsibility.
Quote:
Originally Posted by Jeff White
In other countries, rogue units are disbanded and their members imprisoned or executed.
Note the first 3 words of that sentence.
I'm quite sure that it would be legal in this country under any number of laws, From the Uniform Code of Military Justice to the various state and federal laws on treason. It's not done for political reasons.
Quote:
Originally Posted by Jeff White
the members of these so called militias are not patriots, but are either extremists who see armed conflict or the threat of it as the only way their voice can be heard, or people who are living out some TETOWAKI scenario in their mind, or good people who have been duped by the extremists who lead these organizations.
I submit to you that you are incorrect, but even if you were right, so what? As long as they commit no illegal act, what do you care? It is their right.
It's most definately
not their right. Read Presser v. Illinois again. The military is a function of the government. In many states they are committing illegal acts just by assembling and training.
Quote:
Originally Posted by Jeff White
Patriots participate in the system.
Sometiimes that means they invoke Rule .308, or at least the threat thereof.
That makes them no different then the SA and the SS and the so called militias in nice bastions of freedom like Somalia. We do not have armed political parties here and people who feel they are so cut off from being represented that they need to use violence or the threat of violence to futher their political beliefs are nothing more then insurrectionists and revolutionaries who deserve prosecution to the fullest extent of the law.
Quote:
Originally Posted by Jeff White
We change our government by peaceful means in this country.
Really? Seems to me the last two major changes in this nation's government were through less than peaceful means. Did I misunderstand my history teacher's assesement of the late 1700's and mid 1800's?
I must have missed the coverage of the bloody transition in January of 2001. We have elections in this country and the losers (sometimes reluctently) step down. Are you suggesting on an open forum that you think the time is right for another violent change?
Attala_County said;
Originally Posted by Jeff White:
"The constitution makes the president the commander in chief of the armed forces, to include the militia of the several states."
==========================================================
Not true.The Governor is Commander in Chief of the militia unless its called up in service to the nation.Which is only done under extreme conditions.Such as an invasion.
Even still:
The President, and government, will only control the militia when a part of them is in the actual service of the federal government, else, they are independent and not under the command of the president or the government. The states would control the militia, only when called out into the service of the state, and then the governor would be commander in chief where enumerated in the respective state constitution. -- Alexander Hamilton in Federalist Paper No. 69
First off, the Federalist Papers
ARE NOT law. Our laws may be based on them and the courts may look to them to attempt to interpret the original intent of the founding fathers, but they are in no way shape or form law. And wishing it so, won't make them law. See the Militia Act of 1792, The Dick Act of 1903, The Militia Act of 1908 and the rest of the references I listed above. the militia is an armof the government. It's not a check on government. It can be regulated by the government without violating the second amendment.
I suppose that in states that have no laws regarding military training and assemblies it would be legal for a private militia to organize and train, however if the governor or president ordered that unit to disband, or to arrest the members of anothe runit down the road, it would have to comply, because the militia is controlled by the government. If it failed to, it would be an insurrection, not a militia.
Jeff
