The relationship between the military and federalism is a constitutionally mandated relationship that has historical roots. The armed forces are constitutionally charged with implementing a presidential order or congressional declaration of war. Typically, the scope of these actions is also constitutionally mandated, within a specified time period. Federalism has also emerged in the formation of initially state militias and later the National Guard.
The relationship between the federal and state governments and the military is regulated by the Second Amendment. The Second Amendment states, “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” In the early constitutional years, the notion of a militia acted as a form of self-defense. Moreover, according to Article I, Section 8, of the Constitution, Congress has the authority to finance these militias. In the 1790s, the notion of a standing army was problematic. Thus, the continuation of the long-held state militias became imperative.
|ARTICLE I, SECTION 8|
|Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;|
|Clause 13: To provide and maintain a Navy;|
|Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;|
|Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;|
|Clause 16: To provide for organizing, arming, and disciplining, the Militia, and 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;|
In the twentieth century, the United States no longer has a citizen militia in which a large portion of the population enrolls for part-time military service and, moreover, is required by the government to maintain private arms for such service. As the nation grew, it became impracticable and unduly expensive for the states to impose military training and service on that many Americans. In 1903, Congress facilitated the increasing division between federal and state power by passing the Dick Act, or the Efficiency of Militia Bill (H.R. 11654). According to this act, the National Guard Militia can only be required by the federal government for limited purposes specified in the Constitution, such as to uphold the laws of the union, suppress insurrection, and repel invasion. These limited purposes are now codified in law. Moreover, they are the only purposes in which the general government can call upon the National Guard. Throughout the twentieth century, legislation has increasingly made the division between federal troops, or a national army, and state troops. The National Defense Act Amendments of 1920 dictated that Guard officers would be assigned to the general staff. The National Guard Mobilization Act of 1933 made the National Guard of the United States a virtual component of the U.S. Army at all times. The president could order the Guard into active federal service whenever Congress declared a national emergency. Finally, the Total Force Policy of 1973 required that all active and reserve military organizations of the United States be treated as a single integrated force.
In the past thirty years, the role of the National Guard has changed dramatically. By the end of the 1980s, Army National Guard units were supplied with the newest weaponry and equipment. They would soon get a chance to use it. In response to Iraq’s invasion of oil-rich Kuwait in August 1990, Operation Desert Storm brought the largest mobilization of the National Guard since the Korean War.
In the war, 60,000 Army Guard personnel were summoned to active duty. As the air campaign against Iraq initiated the start of Operation Desert Storm in January 1991, Army National Guard men and women prepared for the ground campaign against the Iraqi forces. Two-thirds of those mobilized would see service in the war’s main theater of operations.
Soon after the Guard’s return from the Arabian Peninsula, hurricanes in Florida and Hawaii and a riot in Los Angeles brought attention to its role in local communities, a role that the regular Army cannot perform constitutionally. That role has increased as the Guard, active for years in drug interdiction and eradication efforts, instituted fresh and innovative community outreach programs.
The modern “well regulated Militia” is the National Guard. The National Guard is a state-organized military force of regular citizens. They typically serve as part-time soldiers, much like the colonial state militias. Unlike the early militia, however, the modern National Guard is constituted of a more restricted membership while depending on government-supplied—not privately owned—arms. Whereas in 1787 federal restrictions on privately owned guns may have interfered with the “well regulated Militia,” this is not the case today.
Thus, in military affairs, there is a strong distinction, or a federalist relationship, between the national armed forces and the local militias and National Guard.
James Cooper, The Rise of the National Guard: The Evolution of the American Militia, 1865–1920 (Lincoln: University of Nebraska Press, 1997); R. Ernest Dupuy, The National Guard: A Compact History (New York: Hawthorn Books, 1971); and John K. Mahon, History of the Militia and the National Guard (New York: Macmillan; London: Collier Macmillan, 1983).
Jaime Ramón Olivares
Last Updated: 2006