The following is Tenth Amendment Center approved legislation to nullify federal overreach into the use of a State’s National Guard Troops.  Activists, we encourage you to send this to your state senators and representatives – and ask them to introduce this legislation in your state.

AN ACT concerning Public Safety – National Guard Deployment – Governor’s Powers

SUMMARY

FOR the purpose of requiring the Governor to withhold or withdraw approval of the transfer of this State’s National Guard to federal control in the absence of an explicit authorization adopted by the Federal Government in pursuance of the powers delegated to the Federal Government in Article I, Section 8, Clause 15 of the U.S. Constitution.

A BILL ENTITLED __________

WHEREAS, Under the Constitution of the United States, each State’s National Guard is a defensive force controlled by the governor, but can be called up for federal duty by the federal government, provided that said duty is pursuant to the Constitution of the United States; and

WHEREAS, Article I, Section 8, Clause 15 of the Constitution of the United States delegates to the Congress the power to provide for “calling forth the militia” in three situations only: 1) to execute the laws of the union, 2) to suppress insurrections, and 3) to repel invasions; and

WHEREAS, James Monroe, member of the Virginia Ratifying Convention, 7th U.S. Secretary of State, and 5th President of the United States, wrote in 1815, “Congress shall have power to provide for calling forth the militia to execute the laws of the Union; what laws? All laws which may be constitutionally made”; and

WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; and

WHEREAS, the Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government in the Constitution of the United States; and

WHEREAS, Daniel Webster, in his 1814 speech on the floor of Congress, said, “The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist”; now, therefore,

SECTION 1. BE IT ENACTED BY THE (GENERAL ASSEMBLY/HOUSE/SENATE) OF THE STATE OF (enter state), That the Laws of (enter state) read as follows:
(enter section of state code here)

THE GOVERNOR SHALL WITHHOLD OR WITHDRAW APPROVAL OF THE TRANSFER OF THE NATIONAL GUARD TO FEDERAL CONTROL IN THE ABSENCE OF:

a) A military invasion of the United States, or
b) An insurrection, or
c) A calling forth of the Guard by the federal government in a manner provided for by Congress to execute the Laws of the Union, provided that said Laws were made in pursuance of the delegated powers in the Constitution of the United States.

SECTION 2. AND BE IT FURTHER ENACTED, That the governor shall examine every federal order, present and future, that places the national guard on federal active duty to determine whether the order is Constitutional according to Article I, Section 8, Clause 15 of the Constitution of the United States. If the governor determines that the order is not Constitutional, he or she shall take all appropriate action to prevent the National Guard from being placed or kept on federal active duty.

SECTION 3. AND BE IT FURTHER ENACTED, That the governor shall submit a report to the standing committees of the legislature with specified subject matter jurisdiction over military affairs, as provided under (ENTER SECTION FROM STATE CODE), that summarizes his or her review of every order that placed or places the national guard on federal active duty and any action he or she takes in response to that review, within 30 days after his or her review is complete.

SECTION 4. AND BE IT FURTHER ENACTED, That this Act shall take effect (enter date).

CLICK HERE – for a previous revision (1)

42 thoughts on “Defend the Guard Legislation

  1. Junior h. Cates Jr.

    KEEP THE GOVS IN CHARGE!

  2. Bob Greenslade

    Nice job!

  3. Wiliam

    Greetings, and God bless.

    While I am in full accord with you in terms of the principles involved, I believe that there may be problems with the legislation that could render it moot.:

    "WHEREAS, Under the Constitution of the United States, each state’s National Guard is controlled by the governor, but can be called up for federal duty by the federal government, provided that said duty is pursuant to the Constitution of the United States; and

    WHEREAS, Article I, Section 8, Clause 15 of the Constitution of the United States delegates to the Congress the power to provide for “calling forth the militia” in three situations only: 1) to execute the laws of the union, 2) to suppress insurrections, and 3) to repel invasions;…"

    The language of the legislation seems to assume that the National Guard and the militia are one and the same. They are not. A look at the legislative history of the Dick Act reveals that the National Guard was created under the Article One, Section Eight Congressional authority to, "To raise and support Armies,…". and not under the Article One, Section Eight authority 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,…"

    To craft legislation dealing with the National Guard and then cite the militia provisions in the Constitution as authority for said legislation is legally unintelligible and unenforceable. The National Guard is a Federal entity and as such, although it would be an extremely sensitive move politically, it would require only an act of Congress and a Presidential signature to cut the Governors out of the chain of command altogether and perhaps only a presidential order, being as the President is Commander in Chief.

    If I may, I would like to refer you to this document, which, among other things 2nd Amendment and militia related, addresses the distinction between the militia and the National Guard:

    REPORT of the SUBCOMMITTEE ON THE CONSTITUTION of the UNITED STATES SENATE

    NINETY-SEVENTH CONGRESS, Second Session, February 1982, which can be found here:

    http://www.constitution.org/mil/rkba1982.htm

    A more fruitful approach to the preservation of Tenth Amendment states rights might be to encourage the several states to pursue that which is described in Title 32, Section 109. Please note the import of the last line in sub-section C

    TITLE 32 > CHAPTER 1 > § 109

    § 109. Maintenance of other troops

    (a) In time of peace, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may maintain no troops other than those of its National Guard and defense forces authorized by subsection (c).
    (b) Nothing in this title limits the right of a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands to use its National Guard or its defense forces authorized by subsection (c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary.
    (c) In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.
    (d) A member of a defense force established under subsection (c) is not, because of that membership, exempt from service in the armed forces, nor is he entitled to pay, allowances, subsistence, transportation, or medical care or treatment, from funds of the United States.
    (e) A person may not become a member of a defense force established under subsection (c) if he is a member of a reserve component of the armed forces.

    Thank you for your kind attention.

    William

    • And just so you know, even the National Guard's official history – on the National Guard website says the same:

      "In 1903, important national defense legislation increased the role of the National Guard (as the militia was now called) as a Reserve force for the U.S. Army"

      http://www.ng.mil/About/default.aspx

    • Actually, William – it's the other way around.

      Congress simply wrote a law changing the name of the militia to the "national guard" Constitutionally-speaking the National Guard serves as the militia no matter what the federal government says. The Dick act doesn't amend the constitution, so the constitution still serves as the highest law of the land.

      The The Militia Act of 1903 organized the various state militias into the present National Guard system. That means the name changed, but constitutionally, the guard functions as the militia.

  4. The reality is U.S. v. Dukakis. Rmember that one, guys? Reagan ordered the Mass. NG to active duty and then Gov. Dukakis said no. Well, the Supreme Court ruled that since the NG is financed by the feds, equipped by the feds, trained by the feds, and is a national guard, guess what? It is a national guard, not STATE.
    22 States have a State Guard or State Defense Force authorized by USC 32 Sec. 109. That is the States' only militia that is wholly under State control.
    I know, I belonged to Alaska's and worked at a national level with a facet of the State Guard Association of the U.S.

    • The Supremes once ruled that black people were basically sub-human. they were wrong then too.

    • Article 1, Section 8, Clause 16 of the Constitution:

      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;

      Now just because Congress provides for the arming of the militia (paying for it), doesn't mean that those troops are wholly controlled by federal government, except as clarified in Article 1, Section 8, Clause 15.

      Period.

    • Another thing to point out is your reference to the State Guards that are set up in some states.

      These organizations do NOT qualify as being the militia as referenced in Article I, Section 8, Clause 15. Why? Because they are wholly under state control, as you have pointed out.

      The Militia in the constitution is NOT wholly under state control. Just partly. It is funded/armed by congress (amongst other things), and goes to national control – whether the governors want them to or not – if in pursuance of the rules in Article I, Section 8, Clause 15.

  5. Fredric Butler

    I would also include a 5th stricture against the Feds using a state's national guard, and that would be to bar one state's guard from being used to quell insurrection or rebellion by the citizens of another state or states; ergo, the governor only has the authority to utilize his own troops within his own state for such purposes; furthermore, the Feds and/or governors should also be barred from utilizing the guard units from other states to quell insurrection in a particular state, unless and provided, a majority of the state governors so agree and approve such use, with the consent and approval of 2/3rds of the House of Representatives.

    We have come to a phase in our history that we are having to even confront this issue, and that is owing to a rogue Congress and a foreign renegade that is occuping the office of the President. The only saving clauses in the Constitution are the 2nd and 10th amendments – rebellion by the people or constraints imposed via State's rights; and the governors should very well recognize the threat of the former, and therefore resort to protecting and enforcing their reserved powers under the latter.

  6. Just forwarded this to Dennis Steele, who's running for VT Guv on the platform of bringing the VT Guard home from Afghanistan and the consideration of secession… this is very helpful; you can check out Steele's site at http://www.governorsteele.com

  7. Ronald

    it is good to know your nations constitution and its laws. and even better to place oneself in the service of that belief. but always remember that man has short remembrances of his past,so every man must learn for himself that only thru education, may those original values stay in the hearts of our people. and only the giving of ones life for that decision can be the continuance to that quality of existence. so some will live and some will die. but the history tells us that we must decide the way in which we wish our children to live.

  8. I agree, but it's very difficult. After their experience with the Articles of Confederation, the writers of the constitution had a horror that states might use the militia to defy the new federal government. Hence they put in some pretty strong language about how the militia might be used, and that language has been strengthened by legislation ever since. A possible alternative are the so-called "Defense Forces", cited by "William" above. I don't know if that has ever been challenged in the courts or what the legal position of the "Defense Forces" is. Does anyone know? In any case, it is difficult to see how such forces might ever become strong enough to defy the federal government. When the southern states seceded, many members of the United States Army resigned their commissions and returned home to serve in their state's militia. The result was one of the bloodiest wars on record. I suppose another alternative might be for a state to disband its national guard and have only a Defense Force. I seem to recall legislation which says that the president may call into federal service a state's national guard "if any". Is there a requirement that a state have a national guard?

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