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Military Law,

Mar. 25, 2020

The National Guard: Always ready, always there

For the past few decades, we have thought of the National Guard as being citizen soldiers, prepared to give up their civilian lives to go to some far-off place and defend our country. That’s what the Guard does alright. But the current COVID-19 crisis has underscored just how much more the National Guard does for all of us.

Moore eileen web

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal, and the Cross of Gallantry with Palm. She is a member of the Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council's Veterans and Military Families Subcommittee. For nine years, she served as a mentor in a Veterans Treatment Court, primarily to women veterans. In 2015, her book "Gender Results" received a Benjamin Franklin award. (Cool Titles, 2014)

For the past few decades, we have thought of the National Guard as being citizen soldiers, prepared to give up their civilian lives to go to some far-off place and defend our country. That’s what the Guard does alright. But the current COVID-19 crisis has underscored just how much more the National Guard does for all of us.

A Brief History of the National Guard

Although the title “National Guard” was not actually used by militia units until 1824, it is said the National Guard began on Dec. 13, 1636, when the Massachusetts Bay Colony organized three regiments of militia to defend against local Indians. In grammar school, we learned about the Minutemen fighting British troops during the Revolutionary War. When our Founding Fathers prepared our documents, they feared a standing army, preferring that citizens be ready to defend the country instead. In Federalists No. 46, Madison argued that a standing army could be offset by a militia of citizens with arms in their hands. When the Constitution was written, Article 1, section 8, clauses 15 and 16 granted Congress the power to “provide for organizing, arming, and disciplining the Militia” and “To provide for the calling of the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” Accordingly, each state has its own National Guard.

In the Militia Act of 1792, Congress mandated that all free, able-bodied male citizens between 18 and 45 years old enroll in the militia in their respective states. For a long time, there were disputes over whether the National Guard was under the control of the federal or state governments.

During the Spanish-American War of 1898, President William McKinley, individually swore members of the militia into federal service. Under those circumstances, the troops were, in effect, volunteers. This procedure obviated the restriction of sending National Guard troops to serve on foreign soil.

The Militia Act of 1903 codified when the National Guard of the states may be federalized. The National Defense Act of 1916 allowed the president to draft state Guard troops into the regular Army, permitting the federal government to rely on Article I, section 8, clause 12’s power to raise and support armies, rather than the militia clauses. Thus, as federalized troops, they could be sent anywhere in the world. Timing is everything, of course. Shortly thereafter President Woodrow Wilson sent National Guard troops to Europe when the United States entered World War I.

In 1986, after Governors George Deukmejian of California and Joseph E. Brennan of Maine refused to allow the deployment of their states’ National Guard units to Central America for training, Congress passed the Montgomery Amendment, 10 U.S.C. 672(b)(d), which prohibited state governors from withholding their consent to overseas deployments for training without the declaration of a national emergency. The governor of Minnesota, Rudy Perpich, challenged the law, arguing it violated Article 1, section 8 of the Constitution. The case ended up in the U.S. Supreme Court. In Perpich v. Department of Defense, the high court held the fact that Guard units also have an identity as part of the state militia does not limit Congress’ plenary authority to train the units as it sees fit when the Guard is called to active federal service. In 2006, Congress enacted the National Defense Authorization Act, Public Law 109–163, containing a provision that gives the president the authority to mobilize National Guard units without the consent of state governors.

Today, persons enlisting in a state National Guard unit simultaneously enlist in the National Guard of the United States. State governors accept allotments of military personnel and equipment from the Department of Defense to train the National Guard. The enlistees retain their status as state Guard members unless and until ordered to active federal duty, and revert to state status upon being relieved from federal service. When joining the National Guard, soldiers and officers swear to obey the orders of both the state governor and the president of the United States.

The National Guard in Action Over the Years

Little Rock

A few years after the 1954 U.S. Supreme Court decision in Brown v. Board of Education, holding that racial segregation in public schools was unconstitutional, national attention focused on Central High School in Little Rock, Arkansas. In 1957, Gov. Orval Faubus ordered Arkansas’s National Guard to preserve the peace by turning away black students who sought to integrate the school. Just how the federal government should respond was complicated by the 1878 Posse Comitatus Act, 18 U.S.C. Section 1385, which prohibits the domestic use of federal troops to enforce civil law. Attorney General Herbert Brownell issued an opinion to President Dwight D. Eisenhower that enabled Eisenhower to federalize the entire Arkansas National Guard, ordering it to protect rather than reject the nine students integrating Central High School.

Riots and Protests

In 1964, New York Gov. Nelson A. Rockefeller ordered National Guard troops to quell a race riot in Rochester, New York. The California National Guard was mobilized in response to the 1965 Watts riot by California Gov. Edmund G. Brown, Sr. Governor Jim Rhodes ordered the Ohio National Guard to repress anti-Vietnam War protests in 1970 at Kent State University. The Guard shot into a crowd, killing four students and injuring nine others. In 1992, following acquittal of four police officers who beat Rodney King, the California National Guard was mobilized to restore order in Los Angeles. During the 1993 siege at Waco, the Texas and Alabama National Guards were mobilized.

September 11, 2001

Following the terrorist attacks on September 11, 2001, the National Guard was called upon to help in many different ways. Within minutes, two Massachusetts Air Guard F-15 Eagle fighter jets were the first to arrive at the World Trade Center. By the end of the day, more than 8,000 National Guard troops were mobilized by the governor of New York. National Guard troops from numerous states provided security at several major airports after the attacks. Following the attacks, the National Guard Bureau required all states to operate a Joint Emergency Operations Center, JEOC, on a continuous basis. Thus, if a state’s emergency management operations fail for some reason, the National Guard and JEOC is designed to assist and augment a state’s response to a disaster.

Hurricane Katrina

When the levies in New Orleans were breached during Hurricane Katrina in 2005, the Louisiana National Guard troops evacuated their headquarters. Offers of help from the New Mexico National Guard, packed and ready to go to New Orleans, went unanswered. The Louisiana governor resisted relinquishing control of the Louisiana National Guard to the federal government. Eventually, President George W. Bush ordered National Guards from other states to go to New Orleans.

Operation Jump Start

In 2006, President George W. Bush federalized National Guard troops to increase border security in a program known as Operation Jump Start. California Gov. Arnold Schwarzenegger and New Mexico Gov. Bill Richardson opposed using their Guard troops in Operation Jump Start in this law enforcement capacity since the troops were already stretched to their limits due to deployments to Iraq. This disagreement highlighted the question of just how much authority governors still have over their National Guards when the federal government calls for state troops. As noted, shortly thereafter, Congress gave the president the authority to mobilize National Guard units without the consent of state governors.


For years, the National Guard from several states have been assisting in fighting wildfires. In addition to actually dropping water on the fires, the Guard maps operations, makes damage assessments, supports communications and provides security.

Coronavirus Crisis

Governors in all 50 states as well as in the District of Columbia and U.S. territories have declared a state of emergency in response to the COVID-19 crisis. In Pennsylvania, National Guard troops were trained and prepared to help from the moment the national emergency became obvious. Early on, the Florida National Guard began preparing for field hospitals. The National Guard in several states delivered supplies and test kits to cruise ships and assisted stranded passengers. In many states, the Guard has been distributing food, disinfecting public spaces and running screening facilities. In West Virginia, the National Guard has been training first responders on how to mitigate their exposure to the virus. In New Jersey and Texas, the Guard has been directing traffic to testing sites and delivering supplies. Members of the Maryland National Guard have been building tents outside medical facilities to expand treatment capabilities. The Michigan National Guard has been delivering critical protective gear, such as gloves, gowns, face shields and other supplies amid the pandemic. In hard hit New Rochelle, New York, the National Guard has been distributing food and provisions throughout the emergency. In Georgia, the governor called up 2,000 National Guard troops to ensure a steady supply of medical equipment, food, shelter and needed materials to the states’ communities. The California National Guard has been quite active in our current situation. The California Guard helped with the cruise ship supplies and evacuations. It has been delivering food and supplies to food banks and providing security in vulnerable areas.

President Donald J. Trump also deployed some National Guard units, sending them to the particularly hard-hit states of New York, California and Washington in the coronavirus crisis. However, the president did not federalize the troops in the usual manner pursuant to 10 U.S.C. Section 12301 (d), known as Title 10 status. Instead, he left them under the control of the governors pursuant to 32 U.S.C. Section 502, known as Title 32 status. Nonetheless, the deployments will be funded federally by the Federal Emergency Management Agency, FEMA.


What the National Guard is doing thus far in our current crisis is likely just the beginning. All of us should be grateful that these brave troops set aside their personal affairs and step up to the plate for the American people in never-ending ways. 


Ben Armistead

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