How are states supposed to protect themselves when the National Guard is under the federal government?

Question

Recall the second amendment:

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.

Great, so states have militias (of which the National Guard is a major component) to protect themselves from tyranny by the federal government.

However, I also read:

When National Guard units are not under federal control, the governor is the commander-in-chief of the units of his or her respective state or territory

So, wait a second... part of the militia that's supposed to protect the state from the federal government is under the control of... the federal government? How is that supposed to work?

In the event of a dispute, is the National Guard's loyalty to the state and its governor, or to the federal government the president?

Answer 1

TL:DR; Some states still do have militias.

Realistically, in the modern era the U.S. states are not expected to require defense from the federal government, nor would such a defense seem possible if the entire U.S. military was willing to robotically follow unlawful or tyrannical orders (something which their oath to the Constitution forbids).

At the time of the founding of the U.S., the creation of a national military was a topic of concern to some, particularly Anti-Federalists. Not everyone was entirely on board with the creation of a national government at all. Hence the initial failed Articles of Confederation which had created more of a loose coalition of states. Even after the ratification of the Constitution, militias did indeed continue to provide the backbone of the U.S. Army up until the 20th century.

The Militia Act of 1903 and National Defense Act of 1916 began a process of army reform, which by WWII had led towards the structure of the modern nationalized National Guard we see today.

But that was not the end of independent state militias. Congress amended legislation in order to allow them to officially raise additional military forces other than the National Guard. These State Defense Forces cannot be nationalized by the federal government and would generally serve under the command of their state governor. https://en.wikipedia.org/wiki/State_defense_force

However most states do not choose to maintain an active militia (other than the National Guard) even though nearly all of them have laws authorizing the state government to create one.

Answer 2

Justice of the Supreme Court Paul Stevens:

Congress may authorize members of the National Guard to be ordered to active federal duty for training outside the U. S. without either the consent of a state governor or the declaration of a national emergency.

and

The governor [of Minnesota] doesn't challenge the authority of Congress to create a dual-enlistment program.In a sense, all [Guard members] must now keep three hats in their closets-a civilian hat, a state militia hat and an Army hat-only one of which is worn at any particular time.

and

The unchallenged validity of the [...] system means that members of the National Guard of Minnesota who are ordered into service with the National Guard of the U.S. lose their status as members of the state militia during their period of active duty.

Source.

This is from a 1990 sentence of the SCOTUS to a lawsuit presented by the governor of Minnesotta arguing against deployment for training of State Guard units in Central America countries. It is not much of a stretch to understand that if the State consent is not needed for a training mission in peacetime, it won't be needed when the unit is activated in an state of emergency or war.

And the basis for the veredict seems to be the Enumerated powers of the USA Constitution, which include:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

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;

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How is that supposed to work?

If the State government does not agree with Federal laws or the Federal government actions, it is supposed to begin a lawsuit that will likely (always?) end before the SCOTUS. If SCOTUS does not agree with the State government, tough luck.

And, in a more informal setting, the Federal government imposing harsh, unfair measures against an state will most likely mean a significant reduction in the support of the political parties promoting those measures, not only in the state affected but in others. Given that all the major parties in the USA are national, it means that no major party can push those measures without the risk of a considerable cost.

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Do people just trust that in the event of a dispute, the National Guard's loyalty will be to the state and its governor rather than the president?

That was already tried. I have no hard data to back it up, but I think that most people do not want to repeat the experience¹. And certainly it was ruled as "not legal".

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¹ I will guess that even includes most Civil War reenactors. But maybe they could be enticed if they were allowed to use historical gear.

Answer 3

Another relevant example was the "Little Rock crisis" -- see Arkansas National Guard and the integration of Central High School. The timeline as I understand it was:

• Some people want to "integrate" the school
• There's a federal (Supreme) court ruling to do that
• Segregationists protest
• The Governor sends the National Guard to keep the peace -- to keep the peace by preventing integration
• The Mayor asks the President for help
• The President acts to enforce the federal court order:
  • "Federalises" the national guard (to remove the Governor's control of the National Guard), and sends it home
  • Sends some of the 101st Airborne Division, to keep the peace while integration is enacted

There's rather a sweet video on the subject here, Operation Arkansas and the 101st, narrated by a historian of the 101st, which explains the timeline and which ends,

"... and as it turned out, with the deployment of the Screaming Eagles to Little Rock, the situation stabilized very quickly."

Answer 4

The 'Militia' and the 2nd Amendment

The National Guard is part of the 'militia,' but it is not all of it.

Under current law, the 'militia' of the United States literally includes all able-bodied male citizens between the ages of 17 and 45. Even so, the operative clause of the 2nd Amendment is not limited to the 'militia,' but rather explicitly applies to "the people." The mention of 'militia' in the 2nd Amendment is only in its preamble, not in its operative clause. As such, it does not place any limits on the extent of the 2nd Amendment's correct application.

So, the protections intended by the 2nd Amendment aren't secured only (or even mostly) by the National Guard, but rather by a pretty close approximation of everyone.

The National Guard

While the National Guard is legally part of the 'militia,' its primary purpose is not to protect states against the federal government. The state National Guard units are intended more for defense against foreign invasion or, much more commonly, to respond to major natural disasters and other similar needs. Still, it could theoretically be used to defend a state against the federal government if the federal government became aggressive and the leadership of the state National Guard decided to follow the state rather than the federal government. While it's (thankfully) very rare to have such a need, state-level militias siding with the state against the federal government is not without precedent in the U.S.

Whose Orders are Followed?

When discussing events of armed resistance against the national government, discussion of who is supposed to legally obey whose orders has only limited usefulness. The whole point of having the 2nd Amendment is to make sure that the people can stop obeying the government if the need arises. Armed insurrection is pretty much always illegal, by definition. Nevertheless, the framers of the U.S. Constitution considered preserving the possibility of such an insurrection if the government became tyrannical to be necessary for maintaining freedom. That they thought this is not particularly surprising, considering that most of them had just participated in such a rebellion several years earlier.

The reality is that, in the event of a crisis to the level of people feeling taking up arms against the government to be necessary, who follows whose orders comes down a lot more to individuals deciding which (if any) side they will join, rather than whose orders they were supposed to 'legally' follow. What is 'legal' becomes questionable when you suddenly have two (or more) governments claiming authority over the same area and those governments have very different opinions of what is legal. The more relevant question then becomes who will the people (and especially the people who are armed) choose to follow and that question will be answered by the particular circumstances surrounding the rebellion rather than by what is legally required.

Answer 5

The individual servicemen have a say in the matter

This is unfortunately mostly anecdotal evidence, but for a mostly hypothetical topic such as this, I don't know what hard evidence I can give. But with that qualification, it is ultimately up to the individual members of the Guard to whom their loyalty lies in case of a state attempting to protect itself from the tyranny of the Federal government.

The first line of argument is to look at what happened in the Civil War. In that case, a large number of regular US Army officers resigned their commissions to join the Confederacy, including most of the famous generals like Robert E Lee, Stonewall Jackson, and JEB Stuart. It is reasonable to assume that many National Guard today would prefer to serve their state rather than their nation. If that is the case, especially for the officers, then it is unlikely that the Federal government could 'take control' of the state guards at all.

The second line of argument is personal experience with National Guardsmen. My brother in law, for example, does not say that his is in the 'National' guard, but rather the Wyoming Guard. The paraphernalia associated with the state guard is state paraphernalia, rather than Army paraphernalia; simply things like sweaters and hats. While not determinative, I suggest that the name on your clothing is an indication of loyalty.

The third line of argument is personal experience as a military officer. I can assure you that young men and women who have taken the officer's oath to support and defend the constitution frequently discuss the meaning of 'all enemies...domestic.' Without having found any definitive polls on the matter, I would suggest from my experience that 'enemies domestic' is considered by many to refer to the Federal government itself, for which many military personnel have grave mistrust. As evidence I offer a poll before the 2016 election which showed support for Gary Johnson, the libertarian, anti-war, small government candidate essentially tied with Trump with 37% support among all military personnel, and first among military officers with 39% support. To show that this was not a Trump related phenomenon, look at this report of political donations from self-reported military personnel. Despite losing a primary to Mitt Romney, Ron Paul received the same amount of campaign donations from military personnel (Not counting DOD civilians: $359,774) as of Aug 31 before the 2012 election as Obama ($359,743), and more than Romney ($215,392). Ron Paul was, again, a small government, anti-war, libertarian candidate.

Conclusion

While the states do not have any de facto protection from the Federal government usurping their National Guard units, I believe that there is evidence from both he Civil War and current National Guard attitudes that individual servicemen, up to the highest ranking officers, would prefer their state's service. Furthermore, I believe there is evidence from current servicemembers political alignment that the US military is not interested in pressing Federal claims against State governments.

Answer 6

Many people have answered with far more detail, but I think the real answer comes down to this: the question of whether states can have their own armies, as it were, not subject to Federal control was decided by the Civil War.

As noted in another answer, the original form of government in the 13 colonies - the Articles of Confederation - saw the relationship of the states being more akin to the relationships of countries in Europe in the modern EU, where they are still distinct nations with militaries; if memory serves me right, the states under the Articles could have their own currencies, etc.

After the Articles of Confederation failed, the Constitution was drafted to make one nation, with one currency, one foreign policy, etc. the states (or at least some) felt they needed to have their own 'army' to possibly defend against foreign powers - or even possibly the Federal government.

The Southern states tried the equivalent of Brexit in the 1860s. It was decisively decided that that was not an option, and that states cannot take military action against the Federal government.

Answer 7

The purpose of the state militias was not primarily to defend the states against the tyranny of the Federal government. The purpose of the state militias was to defend the state and the nation as a whole against foreign invasions, to fight hostile Indians, and to crush riots, revolts, and revolutions against the state governments, as well as to protect the states against the tyranny of the federal government.

As a result of the reliance on the militias of the states and territories, the army of the federal government, the regular army or the United states Army, was kept small during the the 18th and 19th centuries. Too small to effectively police the frontier between settlers and the various Indian tribes and to keep people, white and red, safe from the brutal violence of frontier warfare.

But the state militias tended to lose their military effectiveness almost from the beginning of the US constitution. Though every citizen was supposed to keep a rifle and ammunition ready and to report for periodic drilling, the militia laws were usually unenforced and in, for example, the War of 1812, most of the militia that was mustered was badly lead, often unequipped, and untrained, and was not of much military use.

And for most of the 19th century the militia remained somewhat better than no militia at all, but in most cases of rather limited military value.

To add to the small regular army and the small militia forces available, the US government raised temporary troops during the Northwest Indian War, the United States levies. In St. Clair's disastrous defeat in 1791, the highest ranking officer killed was Richard Butler, major general of United States Levies.

In the War of 1812, The Mexican-American War, the Civil War, and the Spanish-American War, units of volunteers were raised. States and territories would recruit volunteers, organize them into units up to regimental size, and commission the officers (who were often elected by the soldiers of their units).

The units would then be mustered into Federal service, and the officers and men would be paid, equipped, and supplied by the federal government. Thus in accounts of Civil War battles most of the regiments have state designations, like the 69th New York Infantry, for example.

At the turn of the 19th century the modern system of National Guard developed, with voluntary membership instead of the universal membership theoretically decreed by the old militia laws, and with joint federal and state control.

Did the southern states regret the decline of the militia system when the Civil War came along and wish they had kept strong militias to protect them from federal tyranny? Maybe.

But there were only 16,000 men in the United States Army in 1861. In December 1863 the Rebel forces reached their peak strength of 464,646 men while the federal forces reached their peak strength of 1,000,516 in May 1865, almost of the men both armies being in temporary volunteer forces.

Thus the size and the effectiveness of the state militias and of the United States Army was of little importance compared to the vast armies of volunteers raised and equipped by both sides.

And the memory of the death and destruction and suffering of the Civil War has probably kept almost all later Americans from considering resorting to armed force to try to oppose any tyrannical actions by local, state or federal governments, and they have usually preferred to oppose tyranny with peaceful protests, politics, and appeals to the courts. The fear of another widespread Civil War is enough to keep most Americans from resorting to armed uprisings to oppose perceived government tyranny.

Thus the original purpose of the 2nd Amendment has become unfulfilled, due to the 19th century failure to maintain effective state and territorial militias and the reluctance to start another terrible Civil War.

Answer 8

You're missing an important piece of the puzzle which is, what are they protecting themselves from?

Posse Comitatus

In any case, there is law on the books about what "Federalized" Troops (be they regular Army units or National Guard Units are and aren't allowed to do. This is the Posse Comitatus Act, which prevents troops from being used to enforce domestic law. It's important to note that there are limitations to this restriction that allow for emergency reactions in the event of loss of control (Los Angeles Riots) or in other cases Natural Disasters (New Orleans).

Part of the issue with the way Posse Comitatus is written (and has been interpreted) is that it typically is concluded to only apply to enforcing Domestic law against Domestic citizens. The current proposed deployment of troops to the border then may or may not be interpreted to be applying "domestic law" but if it is applied against people crossing the border illegally, one could argue they were at least not Domestic citizens. In this situation, the states have essentially nothing to protect themselves again.

The Problem With Little Rock

The easiest and most direct comparison to make here is the Federalization of the National Guard to enforce Federal sanctuary laws. This was not ever challenged in court but the precedent is that Federal Activation trumps State Activation. Per the chain of command then, National Guard units could not be used to defend a state from Federal aggression if they were Federalized (which could happen before or after the event in question).

(The current proposal, however, does not have troops acting in that capacity. They are attempting first a state of cooperation with the Border State Governments to work things out.)

This activation, in fact, points out one of the inconsistencies (and exceptions) of the Posse Comitatus act in that it was the Federal Government enforcing Federal Law over State Law.

So let's look at an example. Let's say hypothetically, the President announces his intention to deploy troops along the border, and a random State, let's say, California decides not to comply. There are a number of approaches each can take, but the State is on decidedly shaky legal ground.

As we've discussed if California were to activate their National Guard they could deploy them away from the border. However, the Federal government could then Federalize them and redeploy then, if the President decided it was a sufficiently dangerous enough crisis. This would not (as discussed above) be unprecedented legally).

There are then two likely outcomes - California sues to block Federal assumption of the troops (which could go either way) or the California National Guard refuses Federal orders (illegally) in which case California because an insurrectionist state. This being the United States, a legal challenge rather then an actual military confrontation is much more likely.

Either way, it's an exciting time to be alive.

See the Other Answers Too

Other answers here have done a fine job of explaining that difference between State and Federal activation of troops, militias, and other things so I'm going to leave my answer at that.

Answer 9

The thing to keep in mind is that not every state guardsman will follow his oath to the us constitution and could go rouge either by pressure of officers or out right deviancy. Say for hypothetical example Georgia. Say the army for some reason maybe the state resisting a radical president ex Bernie Sanders. Through legislation in the congress they are supposed to now abolish private insurance firms in the state but Brian kemp refuses. The national guardsman can just simply ignore the federalization or mass resign and swear allegiance to Georgia as members of the Georgia State Defense Force or the Georgia Department of Public Safety. It’s a stretch but in a passionate cause they will refuse to follow federal orders.