By Bill Boswell, COL (ret), USAFR
During a recent VBC Scuttlebutt, we talked about how the mission of the Guard and the Reserve has changed over the past 30 years. These two branches went from a strategic asset to an integral part of how the United States projects force and conducts military operations.
VBC member Bill Boswell was an active Reservist at the Pentagon when the Clinton Administration began to make major cuts in the active-duty force end-strength following the first Gulf War in the hope of redirecting funds to domestic purposes. Both the Guard and the Reserve were under the knife. Each presented its best case for not being cut.
The Guard argued that, unlike the Reserve, it was a “Constitutional” entity and thus couldn’t have its role diminished. End of discussion.
Bill’s assignment from the Chief of the Air Force Reserve was to determine whether there was any basis for that claim. Then, he was to write an article listing his findings.
Bill did so, following extensive research, and we thought our members would like to read it to understand how the Guard and the Reserve came to be what it is today.
Below is the article Bill produced after extensive research. The bottom line is that both the Guard and the Reserve are Constitutional entities controlled by Congress under the Army and the Militia Clauses, and that Congress alone has the authority to decide how they are to be used.
“The Armies and the Militia: A Legal Status Overview” was published in Reserve Officers Association’s magazine, The Officer, in September 1995. It’s straightforward and comprehensive history of the Guard and the Reserve (a term unknown to the Framers in the 18th century) from the beginning of the Republic when the first ‘Militia Act’ was passed in 1792.
It describes the traditional American dislike of standing armies, especially large ones, and our country’s preference for the citizen-soldier model where the militia would be called up to supplement a small army in the event of invasion or insurrection. It goes on to show that the results did not match the hope, especially during the War of 1812 and even more so when the Civil War began.
In the 1930s, the Guard and the Reserve essentially became one entity when and if the Guard was called into Federal Service.
The article includes some amusing anecdotes from the early years, as well as others from the latter part of the 20th century when several State Governors attempted to limit the uses to which their forces could be put if those forces were ‘Federalized’.
We hope you enjoy it.
By Colonel William P. Boswell, USAFR and Colonel Richard D. Roth, USAFR
SUMMARY: The article, “The Armies and the Militia: A Legal Status Overview” by Colonels William P. Boswell and Richard D. Roth, examines the historical and legal evolution of the United States’ military structure, focusing on the roles and distinctions between the active Army, the Reserve, and the National Guard. Under Article I, Section 8 of the U.S. Constitution, Congress holds authority to establish armies and govern the national military, while the states retain limited rights to train and appoint officers for their militias within Congress’ prescribed guidelines.
Originally, the U.S. followed British military traditions, relying on a small standing army and state militias to defend the nation. However, the militia was largely ineffective in early conflicts, such as the War of 1812. This led to legislative changes, including the Dick Act of 1903, which formally separated the militia into the organized National Guard and the unorganized reserve militia. By 1916, the National Guard was federalized, creating a dual responsibility to both state and federal governments.
Further developments, like the National Defense Act of 1934 and the Armed Forces Reserve Act of 1952, solidified the federal government’s power over the National Guard, allowing its deployment for national defense and even for overseas operations. Legal cases, including the Perpich v. Department of Defense decision, reinforced Congress’s supremacy over the militia, underscoring that only Congress and the states can lawfully organize and maintain militias, not private entities.
The article underscores that while the National Guard retains some state-level roles, its primary function aligns with federal objectives. This evolution reflects Congress’s authority to structure the military to support national defense.
The Armed Forces of the United States currently consist of the active services, the Reserve services, and the National Guard when called into federal service. Congress has the plenary authority under Article I, Section 8 of the Constitution to provide for the common defense by raising and supporting armies, making rules for the governance of the Armed Forces, and enacting necessary and proper laws for such purposes. Likewise, under this section, Congress is empowered to organize, arm, discipline and call forth the militia of the several states. The states have the reserve authority to appoint officers of the militia and to train the militia according to the discipline prescribed by Congress.
Historical British Practice
The framers of the Constitution clearly intended that the national government should be responsible for and control the land and naval forces of the United States. Also, given the self-help traditions of the former provinces of British North America, they intended to permit the new states to have militia forces available to execute the laws of the United States, suppress insurrections and repel invasions. This latter power was both for the benefit of the Union, which is how it is explicitly expressed in Article I, Section 8, Clause 15, but implicitly for the benefit of the states in the execution of their own laws and for the public safety.
Initially, and in keeping with historical British practice, Congress chose to establish very small land and naval forces. While “small” to the Congress in 1784 meant precisely 80 men in the Army, their duty was to guard stores of ammunition. Indeed, during the debate on the Army Clause in the Constitution, Mr. Elbridge Gerry proposed that the Army be limited to no more than two or three thousand men, thus prompting George Washington to suggest that this would be appropriate if the Constitution also provided that no foreign power would ever invade with more than the same number.
In 1792 Congress passed a militia statute which contemplated enrolling every able-bodied male between the ages of 18 and 45 in the militia. Compliance with this statute was haphazard at best, and as the Supreme Court acknowledged as recently as 1990, the enactment was “virtually ignored for over a century,” and produced a “decidedly unreliable fighting force.” It was so unreliable, for example, that during the War of 1812, 5,000 British troops invaded the country and destroyed Washington despite the existence of 527,000 militiamen. Of course, 400,000 of them were on duty for less than six months, and the governors of Massachusetts and Connecticut refused to honor the President’s call for their militia because they opposed the war. The New York militia, which did heed the call, correctly considered that its proper Constitutional role was to repel invaders and refused orders to cross the Niagara River into Canada.
Some sporadic attempts were made to use the militia during the Civil War, although this was not a notable success, especially considering the fact that half the states were in rebellion. The militia present during the First Battle of Bull Run left the field because their three-month call-up expired—a perfectly reasonable response under the circumstances—and most of the fighting during the war was done by volunteers under the Army Clause. At the end of the century, volunteers and regulars made up those who fought during the war with Spain, primarily because the militia was understood to be a national defense force, not to be used outside of the United States.
President Theodore Roosevelt, no doubt remembering his own experiences in Cuba during the Spanish-American War, proclaimed in 1901 that the 1792 militia law was obsolete and worthless. With the assistance of his Secretary of War, Elihu Root, Congress was convinced to repeal the 1792 law and to pass the so-called Dick Act, which divided the militia into two parts, the “organized militia” and the “reserve militia.”
The former is what we now refer to as the National Guard, a term first used in 1824, with reference to the Seventh Regiment of the New York Militia. The latter, in subsequent statutes referred to as the “unorganized militia,” was a sort of militia in potential only, consisting of any other able-bodied males between 18 and 45 who were not a part of fixed units.
In effect, the “unorganized militia” was the detritus of the 1792 Act, and it is fortunate that the new law repealed the 110 year-old requirement that all militia officers equip themselves with a spontoon and a hangar—both of which were no doubt useful with musket fire at the rate of two rounds a minute.
The closest analogues to the unorganized militia would be the pre-1914 German and Austrian Landwehr or something approaching the French “levee en masse.”
In passing the Dick Act, Congress was acting under the Militia Clauses of the Constitution. The Act further provided for a structure for the National Guard, Federal funds and Regular Army instructors for training purposes—again consistent with the Militia Clauses— and limited the use of Guard forces to the continental United States. This last restriction proved inconvenient, and in 1908 the Act was amended to permit use either within or without United States Territory.
The 1908 provision was further broadened in 1916 due to the situation in Mexico and with an eye toward the widening European conflict, and the Guard was “federalized.” This was a key development. Thereafter, Guardsmen took a dual oath to both the state from which they came, and to the federal authorities. Congress also defined the Army for the first time to include regular, Reserve and federalized National Guard units. A federalized Guardsman was deemed as a matter of law to be released from the militia upon federalization. The 1916 Act has been cited by the Supreme Court on several occasions as a material alteration of the previous status of the states’ militia, notably in Levin v. United States and in Gilligan v. Michigan. Both cases concluded that the National Guard is the modern equivalent of the militia of Article I, Section 6, Clause 16.
Congress and Militia Clauses
The issue of whether the Militia Clauses conferred un-CongressionaIIy-regulated rights to the states, and thus limited or otherwise affected the power of Congress to raise armies, was raised and decided during WWI. The Supreme Court held in the Selective Draft Law Cases that the Militia Clauses left the militia under the control of the states only to the extent that the power was not exercised by Congress, and in Cox v. Wood, that the Selective Service Act’s provisions permitting the draft of Guardsmen were Constitutionally permissible and not barred by the Militia Clauses. The Clauses were seen as an enhancement of Congress’ other powers and not as a restriction.
After WWI, Congress, in 1920, made further changes to the Guard and Reserve. The Guard, however, while not in federal service, was not by law a component of the Army until 1933. In that year Congress provided that the Guard at all times was a Reserve component of the Army, but the manner of its use was dependent upon whether it had been federalized. This had the effect of administering the Guard under the Army Clause, rather than under the Militia Clauses. Even the word “militia” was eliminated in the 1933 Act, under which the new supervisory agency for the militia became the National Guard Bureau.
Nevertheless, what would now probably be thought of as the militia in the Constitutional sense effectively is the non-federalized Guard. By virtue of the National Defense Act of 1934, no state was permitted to maintain troops in time of peace except in accordance with the organization set forth in the Act. In 1940, Congress authorized the states to organize and maintain additional military forces when their Guard units were in active federal service, but only under regulations promulgated by the Secretary of War. This remains cur- rent law, and the states should take no solace in the Militia Clauses as independent authority for them to maintain armed forces.
In other words, and as noted above, the Militia Clauses belong to Congress for all purposes. Such rights as the states have with respect to the Guard forces are those permitted by Congress; generally, this is to preserve peace, order and public safety within each state’s borders.
Post WWll Developments
Prior to 1952, Congress had statutorily limited its power to order National Guard units to federal service to periods of national emergency. In that year, with the passage of the Armed Forces Reserve Act. it expanded that authority to include active duty and active duty for training even in the absence of an emergency, but only with the consent of the governor of the state in question.
By the 1960s, the “dual status” of the Guard was statutorily well established, with the Guard serving as a state defense force under the command of the state governors and as a Reserve component of the federal armed forces. In addition to this dual status force, some states have elected to authorize the establishment of separate “state defense forces” other than the Guard for purely state purposes, pursuant to 32 USC §109(c).
Yet, challenges to the federalization concept have continued, and the courts have consistently rejected the challenges. In Johnson v Powell, National Guard soldiers ordered to active duty during the Vietnam conflict challenged the constitutionality of their activation, arguing that the Militia Clauses precluded the federalization of their Guard unit. In rejecting that argument, the court noted that the express purpose of the dual status was to avoid the limitations of the Militia Clause and to organize the Guard under the broad Congressional authority to raise and support armies. In Drifka v Brainard a similar challenge to Congressional authority under the Army Clause by Guard personnel protesting orders to active duty was rejected.
As part of the “total force” of the 1970s and 1980s, federalized Guard units became an essential part of United States war planning and defense preparedness. Overseas training of federalized Guard units and personnel, pursuant to 10 USC §672(b), increased dramatically in Europe, the Pacific and in South America. The decision to deploy Guard units to Honduras during 1985 and 1986 prompted objections by various state governors, two of whom, Joseph Brannan of Maine and Michael Dukakis of Massachusetts, invoked their privilege to withhold consent to such training.
This gubernatorial veto was abolished in 1987 when Congress passed the so-called Montgomery Amendment for that year’s National Defense Authorization Act, which provided that no governor could withhold consent “because of any objection to the location, purpose, type or schedule of such active duty.”
The opposition of Governor Rudy Perpich, of Minnesota, to the use of Minnesota National Guard units in Honduras in 1985 led to his Constitutional challenge to the Montgomery Amendment, and to the Supreme Court’s decision in the previously-cited Perpich Case. The governor took the position that the control of the militia was a reserved power under the Constitution, and that he and the State of Minnesota could not, in effect, be disenfranchised by a mere act of Congress.
In its opinion, the court took the opportunity to discourse upon the history and development of the Militia and Army Clauses, as well as the history and use of the militia in the United States. It finished with a broad overview of the Congressional enactments and oversight during this century. Having done so, it ruled in a unanimous opinion that Congress, not the states, was Constitutionally supreme with respect to the militia under the Militia Clauses, just as it is supreme with respect to the raising of armies under the Army Clause.
The court thus continued the practice begun years earlier of affirming that the battle over how the military power of the United States was to be created and managed had been resolved by the framers during the Constitutional debates, and that resolution was in favor of Congress, not the states.
The Guard and Reserve
The bulk of this monograph has been devoted to an examination of the 20th century development of the National Guard and its historical antecedents. It is clear that the Guard is the successor to the Colonial conception of the militia, as described in the Militia Clauses of the Constitution, and that the Guard, in its role as an order-maintaining, disaster-repairing instrumentality of each state, has important non-federal functions.
Likewise, it is clear that that concept of the militia has evolved greatly over the past 200 years, and that the evolution has been a product of the exercise by Congress of its Constitutional power to frame how the nation’s military is to exist in order to permit it to “provide for the common defense.”
It is equally true, though less discussed, that the Reserve force is a Constitutional entity as well. This is so because the Reserve force is a part of the “armies” which Congfess is authorized to raise under the Army Clause of the Constitution. The fact that Congress did not see fit to create the Reserve force until 1908 is historically interesting, but not especially relevant on this point.
Due to the Constitution, the militia would exist in concept absent a statutory enactment, but it might be a hollow concept. Only Congress has given the militia substance and form.
Lastly, this article was written before the current discussion about the subject of militias received much attention. There is no Constitutional basis or authority for private militias, any more than there is for private armies. Under the Constitution, the Congress and the states, and only the Congress and the states, have any role in the creation, organization and training of what is truly a militia. Anything else, established by anyone else, is legally nothing more than a social club.
