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Thread: Force Structure for Small Wars

  1. #61
    i pwnd ur ooda loop selil's Avatar
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    This is the only thing I could find regarding the National Guard by the court system as the militia from 1988. http://query.nytimes.com/gst/fullpag...overnors%20(US)
    Sam Liles
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  2. #62
    Council Member Ken White's Avatar
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    Default I'll rarely say I'm totally correct but in this case

    Quote Originally Posted by selil View Post
    I think Ken you may be partially right which suggests... I can't pull it off the top of my head but I believe from the Korean War, there may be a few Supreme Court decisions, as to the Constitutional nature of the guard. I believe, though don't know what to search for, that there was a SCOTUS decision in the Kennedy era too. There has been a lawsuit also brought by a couple of governors in the last few years.

    Sorry I'm being vague but this is far afield of my area of expertise but becoming of increased interest as to the realities, legal, and political implications of increased use of the Guard for non-traditional missions.
    I'm pretty sure I am. Check Title 32, USC Sec 101 Definitions -- in total, that is a slick statute designed to give the constitutional veneer to the Guards self adoption of the 'Militia' mantle but just skimming the definitions can give you a feel for the reality. The Constitution emphatically does not describe the Militia in terms applicable to the modern National Guard.

    Most of those decisions you mention were from cases aimed at decreasing Federal Control of the Guard for many reasons, war, simple overseas deployment training in peace time, movement of equipment (and units), activation and inactivation of units and such like while enhancing the role of the Governor in an effort to keep the Guard more focussed on State missions or in the form the State wanted as opposed to that dictated by the Feds and NGB. Most failed on the simple logic that the Feds fund 90% of the net costs. A few succeeded on the basis that Title 32 says the Guard is the 'Militia.' None had any significant effect on what I said.

    On the non-traditional missions, not sure what you mean but essentially, when the Guard is under State control, they can do whatever State Law says is legal. Obviously, if they're Federalized, Posse Comitatus and other laws apply. The Reserve is always Federal so they don't get the exception and State cover.
    Last edited by Ken White; 10-01-2008 at 04:25 PM.

  3. #63
    Council Member Ken White's Avatar
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    Default Not able to do a lot of searching right now but

    Quote Originally Posted by selil View Post
    This is the only thing I could find regarding the National Guard by the court system as the militia from 1988. http://query.nytimes.com/gst/fullpag...overnors%20(US)
    having worked the Central American training issues back at that time -- roads in Honduras, mostly -- IIRC, the intial ruling was overruled on Appeal (mostly because it interfered with ArNG deployments to the REFORGER Exercises in Europe). In any event, Overseas Deployment Training (ODT) at Fedral direction continued without a hitch into the mid-90s when it got hit with funding cuts.

    Note in the linked article that the 8th Circuit found for the Governor and the 1st Circuit had earlier found for the Feds. I don't recall the sequencing but I do know that ODT kept going.

  4. #64
    Council Member 120mm's Avatar
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    Default No way is the Guard "the militia".

    If we go back to some of the foundational documents, "the militia" is generally described as "all able-bodied men between the age of 18-55". Basically, if you fit the above description, you IS the militia.

    Now, where is my assault rifle and my banjo???

    The Guard is a federally-embodied force, cut to the mythical control of the respective states.

  5. #65
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    Also look at the Dick Act for additional info.

    There is legal linkage between the Consitution and the Guard - it's been established, there are many years of precedent.

    The Army Reserve was created for medical personnel right a few years before WWI. Their role has morphed and expanded, just like the Guard's.
    "Speak English! said the Eaglet. "I don't know the meaning of half those long words, and what's more, I don't believe you do either!"

    The Eaglet from Lewis Carroll's Alice in Wonderland

  6. #66
    Council Member Ken White's Avatar
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    Quote Originally Posted by Ski View Post
    ...There is legal linkage between the Consitution and the Guard - it's been established, there are many years of precedent.
    many years -- like the 105 since the Dick Act was passed and the many changes to Title 32 since that time to cement the 'relationship.' . The previous 116 show no linkage at all. I'm fully aware of all the arguments but the bottom line is that the Guard is the Militia by Statute, not IAW the Constitution -- and I'm not arguing with or disparaging that or the Guard, it's just a matter of fact and it should be no big thing.
    The Army Reserve was created for medical personnel right a few years before WWI. Their role has morphed and expanded, just like the Guard's.
    Also true...

  7. #67
    i pwnd ur ooda loop selil's Avatar
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    Quote Originally Posted by Ken White View Post
    many years -- like the 105 since the Dick Act was passed and the many changes to Title 32 since that time to cement the 'relationship.' . The previous 116 show no linkage at all. I'm fully aware of all the arguments but the bottom line is that the Guard is the Militia by Statute, not IAW the Constitution -- and I'm not arguing with or disparaging that or the Guard, it's just a matter of fact and it should be no big thing.Also true...
    Ken it may not say in the Constitution "National Guard" the SCOTUS seems to read it that way. There is no right to privacy in the Constitution but the SCOTUS and even rabid Roberts says it is inherent in the forgotten 9th amendment. Framers intent is more than the words on the page and SCOTUS interpretation is a big deal. To be honest I don't like the militia interpretation as being the Guard as it erodes the personal protection/revolution aspects in the second amendment.


    ETA: Can you tell I'm Jeffersonian versus Adams adherent? LOL
    Sam Liles
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    The scholarship of teaching and learning results in equal hatred from latte leftists and cappuccino conservatives.
    All opinions are mine and may or may not reflect those of my employer depending on the chance it might affect funding, politics, or the setting of the sun. As such these are my opinions you can get your own.

  8. #68
    Council Member Ken White's Avatar
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    Default I'm not sure what the basis for that statement is but

    Quote Originally Posted by selil View Post
    Ken it may not say in the Constitution "National Guard" the SCOTUS seems to read it that way...
    it does not track with my observation or experience. I think we're making an issue where none exists. The Constitution does not define the Militia; The Dick Act and Title 32 say the Militia is the NG. There is no SCOTUS decision of which I'm aware that changes this Law LINK or corroborates your statement.

    OTOH, this law LINK may be subject to challenge in the future but based on most prior Court decisions, I suspect it'll remain the law...

    I'm not at all sure what the issue is here???

  9. #69
    i pwnd ur ooda loop selil's Avatar
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    No issue on my part. Just a different view point. From mine I'm trying to identify an entity in the government that has domestic as well as foreign powers, legal authority to enforce laws, can span the width and depth of military missions and law enforcement missions, has access to all of the tools and gizmos necessary, and not require a substantive over haul of the current law base.
    Sam Liles
    Selil Blog
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    The scholarship of teaching and learning results in equal hatred from latte leftists and cappuccino conservatives.
    All opinions are mine and may or may not reflect those of my employer depending on the chance it might affect funding, politics, or the setting of the sun. As such these are my opinions you can get your own.

  10. #70
    Council Member Ken White's Avatar
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    Default Good luck with that...

    Quote Originally Posted by selil View Post
    No issue on my part. Just a different view point. From mine I'm trying to identify an entity in the government that has domestic as well as foreign powers, legal authority to enforce laws, can span the width and depth of military missions and law enforcement missions, has access to all of the tools and gizmos necessary, and not require a substantive over haul of the current law base.
    My suspicion is that you're going to run into a Title 10 / Title 32 disconnect. The Guard can do all that in its own state (or in another State with the concurrence of both Governors and NGB) but has to be in Federal service for the foreign bit, thereby losing some of their State powers...

    Shame no water is involved; then the Coast Guard could fit the requirement.

  11. #71
    Council Member 120mm's Avatar
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    Quote Originally Posted by selil View Post
    To be honest I don't like the militia interpretation as being the Guard as it erodes the personal protection/revolution aspects in the second amendment.

    ETA: Can you tell I'm Jeffersonian versus Adams adherent? LOL
    Too bad we don't have a "giving the high five" emoticon, because I'm doing that with you, right now.

    I "believe" the Commonwealth of Virginia constitution, as well as The Federalist Papers define "the militia" as basically everyone who is able.

    It also falls in line with certain community traditions of universal communal service.

    And there is no doubt in my mind that Amendment Two was designed at least partially as a foil to the power of the state. It was truncated when they condensed the 14 original amendments into 10 for marketing reasons, at least if my undergrad-level American History memory doesn't fail me....

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