September 12, 2010

GETTING IT WRONG: Judy Thomas is a good reporter, and she’s interviewed me in the past without problems. But this article on militias and “state defense forces” is just a mess. In my experience, when that kind of thing happens it usually means that an editor rewrote the story, though that’s just a guess here. Anyway, some clarification follows.

When I spoke to her, my key point was that State Defense Forces, or “State Guards,” aren’t militias at all. Militias are under Article I, sec. 8, and 10 U.S.C. sec. 311. State Defense Forces are “other troops,” under Article I sec. 10 and 32 U.S.C. sec. 109, which provides:

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.

These are not — as you might think from reading the article — renegade “militias” organized by anyone who might want to. They are Congressionally authorized military forces, supposed to be there for use within a state if the National Guard is overwhelmed or unavailable because of foreign deployment, etc. Unfortunately, this discussion gets all mangled in the article and the distinction isn’t clear at all. So, here’s a nutshell summary:

We have the armed forces of the United States. Those include the National Guard, which — though occasionally called “the militia” — is really troops under federal control, as made clear in Perpich v. DoD, which held that National Guard units may be sent abroad over the objection of their governor. (Technically, National Guard members are enrolled in both their State’s National Guard, and the National Guard of the United States, but the latter trumps in the event of a dispute).

The State Defense Forces are troops raised by states with the consent of Congress. They’re not militias, either, but they have no dual Federal role, and can’t be “federalized” as the National Guard can.

We also have, again as recognized by both federal and state statutes, an “unorganized militia” of the states, and of the United States. This includes most male adults and — in some states — females, too.

Some folks in what remains of the “militia movement” favor the establishment or expansion of State Defense Forces in their home states. They may want to join them, too. Nonetheless, those Forces aren’t militias, any more than the membership of “militia movement” folks in police forces makes the police a militia.

Despite the obligatory SPLC scaremongering about militias and State Defense Forces, there are undoubtedly more militia members belonging to law enforcement — and there have certainly been far more incidents of law enforcement misconduct of various kinds around the country — than State Defense Forces.

States could, of course, go back to the traditional militia structure, which obtained until the passage of the Dick Act and related changes in the early part of the 20th Century. In that setting, prominent individuals might raise a regiment and serve as its colonel, all under the supervision of the state. That’s how things used to work. I doubt that will come back, though if states get broke enough, who knows . . . .

UPDATE: Reader Arnold Steed writes:

I was happy to see your post on “state defense forces.”

I’m a member of the Texas State Guard, and it is the policy of the Guard not to recruit anyone who is a member of a gang or a paramilitary (militia) group. We’ve recently had a lot of training along the lines of recognizing such individuals so we don’t recruit them inadvertently. The concern is that members of these groups are trying to get into the Guard in order to receive training and bolster their credibility by affiliation with the official State Guard. I think the latter is the main motivation… we don’t do much weapons training and focus on disaster response: shelter management, search and rescue, etc.,

(Incidentally, you’re responsible for my seeking out the Texas State Guard in the first place. I had no idea such a group existed until you did a post about State Guards several years ago. I have a history of asthma, which kept me out of federal service even though it’s no longer a problem.)

There are a lot of people who aren’t eligible for the military for age or health reasons who’d still like to serve. This provides another possibility.

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