In Part 2 of this series, we proposed a recommitment to the concept of State rights and State sovereignty as delineated in the U.S. Constitution, and especially in its Tenth Amendment. Here we will explore one powerful option that would support that goal.
One way available to States generally, and to Wyoming in particular, to reduce dependence on the federal government in several spheres is to create a State Guard or State Defense Force, an entity authorized in federal law and existing in nearly half the States, although currently on paper only in Wyoming.
HISTORICAL CONTEXT
"Militia" has become a dirty word in contemporary America, thanks to the "progressive" Left's fears of the concept of armed citizens standing up to oppressive government (unless of course they are the left-wing John Brown Gun Clubs or NFAC or the New Black Liberation Militia), and scary images of people less "woke" than themselves training with arms in more-or-less organized groups of friends and neighbors and calling themselves militia. Let's rip the word out of their propagandists' hands and consider it dispassionately from a historical perspective.
The militias of Britain's North American colonies played an important role in defending – and expanding – their territories from the early 1600s until U.S. independence in 1776, against both native tribes and competing European colonial powers. It's beyond our scope here to address the conflicts between native Americans and European settlers; but anyone who has seen the scars of tomahawks and fires on the preserved doors of colonial homes in Old Deerfield, Massachusetts will have a visceral appreciation for the need of any community worthy of the name to defend itself – and of the value of the Massachusetts "minute men" from neighboring villages who arrived in time to help their neighbors repel that assault and survive. The British militia tradition reached back to the Anglo-Saxon fyrd, a local militia that required military service from all able-bodied free men, who came with their own privately-owned arms to defend the community (e.g. against Viking raids) or to serve – for short periods – in a larger army.
The colonial militia, like the fyrd a thousand years before, was comprised of community volunteers (we can't call them citizens yet, because they were subjects of the British crown), who showed up with their own arms and typically served under officers elected from within their own ranks. Militia members served from an early age and some developed considerable experience, including service alongside British army regulars in wartime, for instance in the French and Indian War, 1754-1763. The Massachusetts militia alone was many thousands strong, organized into 47 regiments, with more and better veteran small-unit leaders than the British regulars they faced in 1775, and as well-trained as any part-time force of farmers and tradesmen could be.
The colonial militias played an important role in the U.S. War of Independence, although it took a professional, standing army – the Continental Army – drilled to European standards to defeat large British forces in the field. In almost every campaign and battle of the war after the first year, militias fought alongside a core of Continental regulars, most of whom themselves were recruited out of the various State militias.
Despite their hard-learned appreciation of its limitations, the Founders recognized the vital role of the militia, and had a visceral distrust of a standing army based upon their recent experience with the British. They addressed the militia in Article I, Section VIII of the U.S. Constitution:"[The Congress shall have Power] . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. . . 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."
That recognition is also seen in the Second Amendment's prefatory clause, "A well regulated Militia, being necessary to the security of a free State. . ." where we might also note the reference to "a free State," not "the United States."10 U.S. Code 246 currently defines the militia like this, and is echoed in most State constitutions and statutes:
The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
State militias in the early years were subject to being called into federal service by the President to augment the tiny U.S. military at need. They served under the authority of the State until and unless called into federal service. Over time, this arrangement proved less than perfect, and it was amended several times through the 19th century and into the 20th. The Militia Act of 1903 created the National Guard, which professionalized and organized the State militias in accordance with current U.S. military standards, while maintaining their status as state forces except when activated by the federal government under specific limits as to how long they could be deployed, and how far from their home state.
The National Defense Act of 1916 took that further, making the National Guard subject to federal activation for the duration of any war or other national emergency, and deployable overseas. That is exactly what happened the next year, when the entire National Guard (more than 300,000 guardsmen) was mobilized for active duty in World War I. Deprived of all their National Guard resources, State Governors concerned about sabotage, espionage, civil unrest, insurrection or natural disaster called for the creation of organized state militias that would not be subject to federal activation and removal from their state of origin.
The Home Defense Act of 1917 answered these concerns by authorizing the States to raise such forces when the National Guard had been federalized. That was not an ideal solution, because recruiting, organizing, and training a coherent and effective force would take months at least, and that effort would be largely wasted by disbanding it when the National Guard demobilized. But by the end of 1917, 42 States had formed "home guards" or "State Defense Forces" totaling approximately 100,000 men.
Many of those forces were disbanded at the end of World War I, but were raised again in 46 states during World War II, with a total strength of 150,000, and again during the Cold War.
LEGAL STATUS
State constitutions and statutes have defined and authorized State Defense Forces under a variety of names, and with particulars varying from state to state.
Wyoming's Constitution, which predates both the creation of the National Guard in 1903 and the authorization of State Defense Forces in 1917, defines the state militia quite specifically: ARTICLE 17
STATE MILITIA
Sec. 1. Of whom militia constituted. The militia of the state shall consist of all able-bodied qualified residents of the state, and those nonresidents who are accepted into service, between the ages of seventeen (17) and seventy (70) years; except those exempted by the law of the United States or of the state. But all residents having scruples of conscience averse to bearing arms shall be excused therefrom upon conditions as shall be prescribed by law.
Sec. 2. Legislature to provide for enrollment, equipment and discipline. The legislature shall provide by law for the enrollment, equipment and discipline of the militia to conform as nearly as practicable to the regulations for the government of the armies of the United States.
Sec. 3. How officers commissioned. All militia officers shall be commissioned by the Governor, the manner of their selection to be provided by law, and may hold their commission for such period of time as the legislature may provide.
. . .
Sec. 5. Governor to be commander-in-chief; powers. The Governor shall be commander-in-chief of all the military forces of the state, and shall have power to call out the militia to preserve the public peace, to execute the laws of the state, to suppress insurrection or repel invasion.
Wyoming state statutes currently authorize the organization of a State Guard under the conditions established by Congress in the Home Defense Act of 1917:
Article 17, Title 19, Chapter 10 – Wyoming State Guard
W.S. 19-10-101. Organization by Governor; appointment of council; removal; control.
(a) If the national guard of Wyoming is ordered into the service of the United States, the Governor may organize and maintain within this state during that period, under such regulations as the secretary of defense may prescribe, such military forces as may be authorized by the secretary of defense or as the Governor deems necessary for the defense of the state. The forces shall be known as the Wyoming state guard. Insofar as practicable, the existing laws, rules and regulations governing the national guard shall be applied to the control of the Wyoming state guard. The force shall be of such strength as directed by the secretary of defense, with such expansion in the future as may be authorized. The Wyoming state guard shall be armed, trained and equipped in such manner as may be prescribed by the secretary of defense or the Governor of Wyoming.
During the Cold War, the probability that a major war would once again lead to full federal activation of the National Guard resulted in a 1983 amendment to the National Defense Act that authorized all states to maintain State Defense Forces on a permanent basis, no longer be linked to federal activation or deployment of the National Guard. That authorization is found in paragraph (c) of 32 U.S. Code § 109 - Maintenance of other troops:
"(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."
The first hurdle to be crossed for the implementation of a Wyoming State Guard is to update W.S. 19-10-101 to align with current federal law, authorizing the Governor to organize the State Guard at his discretion without regard to the status or presence of the National Guard. It would be a simple amendment, as can be seen below, in Arizona's statute, similarly amended in 2013 to read as follows (highlighting added):
26-174. Arizona state guard; establishment; purpose; appropriations
A. If the national guard of Arizona or a major portion thereof is called into active federal service, or if the national guard or a major portion thereof is alerted for federal service or for any other reason the Governor considers to be necessary, the Governor may establish an armed force for the safety and protection of the lives and property of the citizens of the state which shall be known as the Arizona state guard.
B. The Arizona state guard shall insofar as practicable be governed by and subject to the laws of the state pertaining to the national guard. The Governor shall issue or cause to be issued rules to govern administration and organization of the state guard.
C. Appropriations made to the national guard shall be deemed appropriated to both the national guard and the Arizona state guard, if and when the latter organization is established, and any funds that are unexpended from appropriations to the national guard may be used for establishment and maintenance of the Arizona state guard.
The Wyoming legislature should also delete the curious language in W.S. 19-10-101 referencing the "secretary of defense," since the federal government has no command authority, and only very limited regulatory authority (primarily concerning uniforms and decorations) over the State Guard. The State of Wyoming is entirely capable of defining the size, roles, and capabilities of its own State Guard.
PRIVATE MILITIAS AND THE "UNORGANIZED MILITIA"
As noted at the beginning of this article, the word "militia" gives many the vapors, as they associate it with a notion – often exaggerated – of politically or ideologically motivated private armed groups. Let's dispel both that fear and resistance to the organization of the Wyoming State Guard on that basis.
Under U.S. and State law, most adult, male citizens of the United States are currently considered members of the militia. The majority of them, who are not serving in the U.S. military, the National Guard, or a State Defense Force, are considered "unorganized militia," which consists of all persons liable to serve, but not commissioned or enlisted in the organized militia. They have no special power or privileges as members of the "unorganized militia," a status that connotes an obligation more than it does a right: members of the unorganized militia are, under U.S. and State law, subject to being called into service at need by either the state or federal government. This may be an unpleasant surprise to some.
The "organized militia" in Wyoming (as in most states) comprises the National Guard and "State guard forces, when organized," as stated in Wyoming Statute 19-8-101.
Private armed groups that call themselves militias but are not part of the organized militia as defined in law are illegal in Wyoming. If you're curious as to the origin of this law, look into the range wars of the late 1800s.
"W.S. 19-8-104. Other organizations parading with arms prohibited; penalty.
No group or assembly of persons other than the regularly organized national guard or the troops of the United States* shall associate themselves together as a military company or organization, or parade in public with arms without license of the Governor. . ."
*Note the title of this statute, "other organizations." In context with W.S. 19-8-101 preceding, this body of law clearly recognizes the State Guard as part of the organized militia "licensed by the Governor," and not among these "other organizations."
The Wyoming State Guard, in summary, would be a military force under the command of the Governor and fully authorized by both State and federal law. It would, if properly organized, led, and purposed, be attractive to a wide spectrum of people willing to volunteer their services and place themselves under the command and discipline of an organized force. It would not, by any stretch of the imagination, be an illegal, private, so-called "militia."
WHAT DO STATE DEFENSE FORCES (STATE GUARDS) ACTUALLY DO?
As of 2014, 26 states and territories had active State Defense Forces (SDF). At least three more states (including Wyoming) have enabling statutes on the books but no active force at this time.
Where these forces are organized and active, their personnel constitute a valuable but low-cost, easily and quickly deployed force multiplier, capable of supporting National Guard, homeland security, law enforcement, search and rescue, wildland firefighting and disaster response efforts with in-state volunteers, versus relying upon federal or other-state resources which may be delayed, over-tasked or committed elsewhere. When agreements between states are in place, they can even operate outside their state of origin.
They have performed all these roles and more in recent years. For instance, SDF personnel from Texas, Georgia, Virginia, Tennessee and Maryland all responded to Louisiana in the aftermath of Hurricane Katrina, and others responded in various capacities after the terrorist attacks of September 11, 2001.
Although Wyoming has so far been blessedly remote from the civil disorders of the last year and a half, the presence of a trained, disciplined volunteer force to augment and assist National Guard and state or local law enforcement could be reassuring, given the distances, dispersal, and long response times of those organizations.
As a State-controlled force, they are exempt from Posse Comitatus, the body of federal law and regulations which prohibit federal forces (and National Guard who have been activated under Title 10 into federal service) from performing law enforcement roles. The State is free to regulate and assign those roles as it chooses, with its National Guard serving under State authority – and the same would hold true for the State Guard.
The size, composition, training, and capabilities of an SDF can be freely determined by the State. In the early 20th Century, many were organized as infantry or combat support units; since then, military police and a variety of technical and civil support specialties have predominated. As is the case with many National Guardsmen, SDF volunteers tend to be older and more experienced than young military recruits, are often veterans themselves, and have many useful skills and specialties.
State Guard members can be armed or not, depending on their expected roles and the availability of training, necessary resources and oversight. Unless the State found a way to provide equipment that was independent of federally funded armories and National Guard funding, volunteers would have to provide their own arms, but standards would be easy to define and enforce. Standards relating to physical fitness, prior military or law enforcement experience, and other qualifications are entirely up to the State.
Unlike the National Guard, State Defense Forces receive no funding or in-kind support from the federal government, which as we all well know, may be a blessing in disguise, because federal support always comes with strings attached. We see that confirmed in direct respect to SDFs – the National Guard Bureau in Washington D.C. has dictated very restrictive rules on National Guard support for their own state's SDF forces – a power it has because of the federal origin of much National Guard funding (see Chief National Guard Bureau Instruction [CNGBI] 5500.01, 15 June 2017). Not all federal organizations are so strict or non-supportive; the Department of Defense Inspector General's Office has pressed for greater integration and support for SDFs from the National Guard and active-duty U.S. forces, within the limits imposed by the legal restriction on funding (Report No. DODIG-2014-065: Evaluation of Department of Defense Interaction with State Defense Forces, April 30,2014). The current limitations on federal and National Guard support create challenges in training, transportation and other areas, but also ensure the independence of a State Defense Force.
SDF forces often receive limited funding and other support from their own states. In most states, they are entirely volunteer organizations, with very limited administrative support from the office of the Adjutant General, who commands all state military forces and assets, including the National Guard. In some states, and under some circumstances, they are paid for their service and covered by Workers Compensation and other State benefits and coverages when called to active duty.
In our state of Wyoming, other volunteer organizations such as county search and rescue teams and volunteer fire departments seldom lack for enthusiastic volunteers. A properly organized, well-led State Guard would benefit from the same volunteer spirit, and from our broad pool of military veterans who could offer much to its training, discipline and efficiency. And it would be an excellent example of State independence and self-sufficiency in these troubling times.
To reiterate the points raised in context above, establishing a Wyoming State Guard requires only a few distinct actions:
- The Legislature must amend W.S. 19-10-101 to update and align it with 32 U.S. Code § 109 in two specific areas:
a. Authorizing the Governor to organize the State Guard on a permanent basis, without regard to the activation status or deployment of the Wyoming National Guard;
b. Removing references to the U.S. Secretary of Defense, who has no regulatory authority or advisory role regarding State Defense Forces. - The Governor, once authorized by this amended statute, must exercise his authority by directing the office of the Adjutant General to develop a comprehensive plan for organizing, staffing, training, and utilizing the State Guard.
- We would recommend the establishment of an independent commission utilizing the deep pool of relevant talent in the State, to assist in this process. Other States with active State Defense Forces should be consulted, in order to build upon their successes.