21MAR10 Militia and Service to the State

Take a few minutes to prepare for reading this essay by pulling up your Constitution, Bill of Rights, the Federalist Papers (in particular No. 29 by Alexander Hamilton) and the Militia Act of 1792. You might also want to take a few minutes going over the history of Posse Comitatus and gain of an understanding of both the term and the Posse Comitatus Act. The Founders intent for Militias had nothing to do with men gathering around charismatic leaders that spouted the right words, and everything to do with ensuring that the States had the ability to call up men to arms in times of crisis, and that they had a cadre of professional soldiers in the 'Organized Militia' who could train the the mass of 'Un-Organized Militia' who would be called up for service to the State during times of crisis. Clearly, a Militia is accountable to the people of the State through the Governor, State Legislature, and State and Federal Regulations (criminal code and the UCMJ) depending on the crisis.

When one reads through these documents, they gain a greater understanding of the Founders intent for the Militias that each state would maintain, and an idea that the Federal Governments standing Army would be the smaller force with the Navy and Marines representing the bulk of US Forces overseas. Our Founders were indeed concerned about the possibility of abuse by the Federal Government they created later on in history. Our Founders established a check and balance to this in the form of the Militias. In Federalist No. 29, Alexander Hamilton points out very clearly that it is virtually impossible for the common man to be a professional soldier at all times without negative impact on the existence of the State, commerce, and daily life; instead he advocates for a cadre of men who are trained and ready at all times whom the masses will fall in under for training and guidance during time of need. This core group of individuals became the very foundation of the Organized Militia that drills once a month at a minimum, or even hold full time positions as professional soldiers for the State. Should the Governor decide to exercise Posse Comitatus (power [force] of the country) during a crisis, depending on the situation the Governor had two choices based on the needs of the State. If a small force was all that was needed, his Organized Militia could be called up at a moments notice and sent do deal with a small crisis; and if the crisis was larger, the Governor could then call upon every able bodied male of the state to report to their Militia Captains for service (See the Militia Act of 1792). The President of the United States was also given authority to activate the Militia of the States during times of invasion (War of 1812, etc.).

In modern times, many State Militias became melded into a newer idea, a fusion of their traditional role as USC Title 32 State units and USC Title 10 Federal units in 1903 with the passing of the passing of the Militia Act of 1903, or Dick Act. The Dick Act created the formalized National Guard that today provides over 353,000 Soldiers for both Federal and State service across the entire US and its territories. Several states kept their State Guards, Home Guard, and State Defense Force units in tact, especially during World War I when they found their National Guard units Federalized and sent overseas and they had no one else to call upon when crisis hit. A large motivation for the Dick Act was the Spanish American war, where the US Government could only ask State Militias to volunteer for overseas service in Cuba and the Philippines; and those that did volunteer had a mix of training and equipment that proved to be a logistical strain on the Federal forces that had to supply them. In order to minimize the difficulties, what became the National Guard Bureau of the then War Department was born.

During both World Wars, National Guard units were activated and sent overseas, and States that were vulnerable were able to draw upon their own resources for personnel under the current laws and were able to utilize veterans from previous wars too old to go overseas, those who were waiting to be drafted, and those who were deemed unfit for active service in a variety of roles to secure their States, and indeed the rest of the country. Here in Alaska, the Alaska Territorial Guard, Alaskan Scouts, and Eskimo Scouts watched the coastlines and were able to secure the west coast of Alaska while the Territories National Guard was deployed to Washington State and overseas. States and the Federal Government learned the valuable lesson of what a State Guard could do to secure the State and the rest of the nation and free up critical Federal forces for the war effort in both theaters of combat. History has more than a few examples of the ATG standing guard to the Coast Guard Auxiliary engaging U-Boats off the east coast in the Atlantic that display what these forces are capable of doing. Sadly though, the lessons of history if not properly learned and passed on are all too soon forgotten.

State Guards, State Defense Forces, and Home Guards are all the same concept, citizen soldiers serving the people of their state in time of need. Each unit is the continuation of the Militias that our Founders had been a part of, and the basis for military service since the discovery and colonization of the New World. Every SG/SDF/HG unit that exists on a legal basis is the Organized Militia for their state, and is accountable to the people of that state through the Governor, State Legislature, and applicable State law (and the UCMJ during time of war). While on duty for the State, if a soldier commits a crime, he will be held accountable for his actions not only under civil law, but if it is a time of war the UCMJ as well; when you take the Oath of Enlistment, double jeopardy can indeed happen for the same crime. Typically, the unit commander will move forward on any UCMJ or Non Judicial Punishment prior to the soldier facing civilian trial (for example, a DUI will result in both NJP/Court Martial from the military, and civilian charges form the locality the crime was committed on). This also ensures that the Militia is accountable to the people through Rule of Law, and have recourse should the Militia, or members of the Militia, commit crimes against the people.

When charismatic leaders step forth saying what is exceedingly popular, and gather around themselves a mob of armed men erroneously calling themselves a 'militia' or 'peoples militia' they do the people a great disservice. First, from where do they draw their authority? From their leader? Militias draw their authority from the people and the Rule of Law of the Constitution of the United States and the Constitution of their State, and as such are bound to that law and held accountable to that law by their Governors and State Legislature. Militias submit to this authority by swearing or affirming an Oath to the Constitution of the United States and their State; private individuals forming an armed mob may swear an Oath, but to whom do they swear to serve? Their leader? That would be an Oath of Fealty to a Lord now wouldn't it? Such an Oath would certainly have our Founders spinning in their graves.

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