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The National Guard is the term for the state-organized units of the U.S. Army and Air Force, composed of citizens who undergo training and are available for service in national or local emergencies. National Guard units are organized in each of the 50 states, the District of Columbia, and Puerto Rico. The National Guard units are subject to the call of the governor of their state or territory, except when ordered into federal service by the president of the United States. Entry into the National Guard is by voluntary enlistment. The National Guard is trained to work in conjunction with the active forces of the Army and Air Force. Much of its value comes from its service in times of peace, when the Guard provides emergency aid to victims of national disasters and assists law enforcement authorities during civil emergencies.
"Citizen-soldiers" have come a long way since the American Revolution. The Army National Guard has fought in every major war in which the United States has been involved, from the American Revolution to the Vietnam War and the 2003 war in Iraq. Since the end of the Vietnam War, the Guard has been engaged in all U.S. national defense missions. Not only is the National Guard devoted to the defense of the United States and its allies, it is also involved in a number of other activities, such as dealing with emergencies like civil disturbances, riots, and natural disasters, and helping law enforcement agencies to keep illegal drugs off the streets.
After the American Revolution, the First Congress of the United States did not consider the formation of a militia a top priority, and it disbanded the Continental Army. Congress did not officially debate the notion of a militia until the Constitutional Convention in 1787. The Constitution authorized a standing army in its Army Clause (art. I, § 8, cl. 12) and provided for a militia under the Militia Clauses (U.S. Const. art. I, § 8, cls. 15–16). Under the Constitution, the militia is to be available for federal service for three distinct purposes: "to execute the Laws of the Union, suppress Insurrections and repel Invasions." Congress is to organize and discipline the militia, and the states are to appoint officers and train the soldiers.
The National Guard, whose main responsibility since its inception had been the protection of colonial settlements, faced its first significant challenge when it tried to defend the settlements from Native American domination. In 1789, the federal government formed a War Department of approximately 700 men for the purpose of defending U.S. soil and its settlements from Native American attack. These small armies failed, and Congress responded to the failure of its small armies to fight off Native Americans in the West by enacting the Militia Act of 1792 (May 8, 1792, ch. 33, I Stat. 271 [repealed 1903]); this act was the militia's only permanent organizing legislation for more than 100 years. While the act governed the militia, the United States endured three wars—the War of 1812, the Civil War, and the Spanish-American War—and the militia was ineffective in all three. Congress replaced the act with the Dick Act of 1903 (32 Stat. 775) to transform "a frontier police force into a respected and modern fighting machine."
The Dick Act provided for an organized militia—to be named the National Guard—that would conform to the organization of the Army, be equipped through federal funds, and be trained by Army instructors. The act consisted of 26 sections and set forth new provisions that had previously only applied to the Army, but now also applied to the newly formed National Guard, including a nine-month limit for reservists' service on active duty, a provision that when on active duty, the reservists would be guided by Army rules and regulations and would receive the same pay as that given to Army soldiers, and a new requirement for the performance of 24 drills per year and a five-day summer camp. The act also gave states' governors certain powers over their Guard units, such as the power to excuse their troops from any of the drills or summer camp.
Congress amended and strengthened the Dick Act when it passed the National Defense Act of 1908, on May 27, 1908, ch. 204, 35 Stat. 399 (amending Dick Act of Jan. 21, 1903, ch. 196, 32 Stat. 775), which provided that the Guard could not only be called into services within or outside of United States territory but could also be called into service for as long as the president deemed necessary, no longer subject to a nine-month limitation. The National Defense Act of 1916 (June 3, 1916, ch. 134, 39 Stat. 166) separated the Army, the reserves, and the militia and "federalized" the National Guard.
Several years later Congress declared the National Guard a part of the Army, and the National Guard became solely authorized by the Army Clause of the Constitution when Congress passed the Act of 1933 (48 Stat. 149, 155). This act provided that reserve soldiers would no longer be drafted into federal service and that they would be ordered to active duty only if "Congress declared a national emergency and authorized the use of troops in excess of those of the Regular Army."
Since 1933 federal law has provided that persons who enlist in a state National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army. The enlistees retain their status as state National Guard members unless and until ordered to active federal duty and revert to state status upon being relieved from federal service.
The authority to order the Guard to federal duty was limited to periods of national emergency until Congress passed the Armed Forces Reserve Act of 1952 (66 Stat. 481), which authorized orders "to active duty or active duty for training" without any emergency requirement but provided that such orders could not be issued without the consent of the governor of the state concerned. The act also set forth the mission of the reserve components and defined some important terms. For example, the act clarified that the U.S. armed forces are the Army, Navy, Air Force, the Marine Corps, and the Coast Guard, and that the seven reserve components are the National Guard, the Army Reserve, the Navy Reserve, the Marine Corps Reserve, the Air National Guard, the Air Force Reserve, and the Coast Guard Reserve. According to the act, the purpose of the reserve components is to provide "trained units and qualified individuals to be available for active duty in the Armed Forces of the United States in time of war or national emergency, and at such other times as the national security may require."
Further, the act declares that "the National Guard … [is] an integral part of the first line defenses of this Nation [and must be maintained at all times]…. [W]henever … units and organizations are needed for the national security in excess of those of the Regular components …, the National Guard … shall be ordered into the active military service of the United States and continued therein so long as such necessity exists."
The legal basis of the National Guard is founded not only in federal constitutional and statutory law but in state constitutions and statutes as well. The original "militia," which eventually became known as the Army National Guard, began as a domestic force made up of untrained men led by political generals. The Army Clause of the Constitution gives Congress the power to provide and maintain a Navy and make rules for the government and regulation of the land and naval forces. The Militia Clauses of the Constitution authorize the states to organize the National Guard but give Congress the power to employ the Guard in the service of the country.
Article II, Section 2, of the Constitution states that the president of the United States is the "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."
The Framers of the Constitution authorized Congress to recognize a militia that was largely controlled by the states. The states generally have maintained control over the militia during times of peace but not during war or national emergency. However, after two state governors refused to consent to federal training missions abroad for their Guard units, the gubernatorial consent requirement was partially repealed in 1986 by the Montgomery Amendment, which provides that a governor cannot withhold consent for reservists to be on active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty. The Supreme Court affirmed the constitutionality of the Montgomery Amendment in Perpich v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990). According to the Court, the Militia Clause of the Constitution granted independent rights to both the states and the federal government to train the militia. Congress is free to train the militia as it sees fit, provided it does not prevent the states from also conducting training.
Ultimately, the National Guard enjoys a dual status as both a state militia and as an integral part of the federal armed forces. Although the Guard continues to perform important domestic functions, the federal government has ultimate power when it requires the National Guard for national defense.
In the 1990s and early 2000s, the significance of the National Guard as a major part of the country's national defense system increased. In 1991 more than 75,000 reservists participated in the first Gulf War ("Desert Storm"). Since that time, components of the National Guard have completed missions in Haiti, Bosnia, and Kosovo. After the september 11th terrorist attacks, more than 50,000 National Guard members were called upon to provide security at home and abroad. In 2003, National Guard members and reservists played a crucial role in the war against Iraq.
Bovarnick, Jeff. 1991. "Perpich v. United States Department of Defense: Who's in Charge of the National Guard?" New England Law Review 26.
Breitenbach, Roy W. 1989. "Perpich v. United States Department of Defense: Who Controls the Weekend Soldier?" St. John's Law Review 64.
Derthick, Martha. 1965. The National Guard in Politics. Cambridge, Mass.: Harvard Univ. Press.
National Guard. Available online at <www.ngb.army.mil>(accessed July 28, 2003).
Rich, Steven B. 1994. "The National Guard, Drug Interdiction and Counterdrug Activities, Posse Comitatus: The Meaning and Implications of 'In Federal Service'." Army Law 35.
Theurer, Kenneth M. 1994. "Low-Level Conflicts and the Reserves: Presidential Authority Under 10 U.S.C. sec. 673b." University of Cincinnati Law Review 62.