Border-militia bill requests $1.9M for Ariz. patrols

[Ptah]

http://azstarnet.com/news/local/govt-and-politics/border-militia-bill-requests-m-for-ariz-patrols/article_66c2e34b-c446-5dba-9303-65c623185b8f.html

The Republican-led Arizona Legislature is considering a bill to fund an armed, volunteer state militia to respond
to emergencies and patrol the U.S.-Mexico border.

Gov. Jan Brewer could deploy the volunteers using $1.9 million included in the bill, making its way through the
state Senate. The militia itself was created by a law signed by Brewer last year.

The bill has a hearing Tuesday before the Senate Appropriations Committee. Senate Bill 1083 already
has passed one committee along mostly party lines. It would provide $500,000 in one-time funding and
$1.4 million a year from a gang task force fund.

The state is expecting a budget surplus this year, but lawmakers must deal with long-term debt and the
May 2013 expiration of the 1-cent-per-dollar sales-tax increase, so it is unclear how much support this bill will receive.

[safeinOhio]

1. What could possibly go wrong

with some gung-ho yahoos with guns?

[Fearless]

2. Tax cut and spend!!

[happyslug]

3. Is this unit a "Militia" or "State Troops"????

And the difference is important for both terms are used in the US Constitution. Militia is to be organized according by Federal Law, but the officers are to be appointed by the State, but State Troops are NOT legal unless Congress permits the States to have such troops. The Second amendment goes to the issue of the Militia, but does NOT mention "State Troop".

Both terms, "Militia" and "State Troops" are undefined in the US Constitution, so we have to look elsewhere for what was meant by both terms. This is complicated by Hamilton's Federalist paper on the Militia which is the only Federalist paper that addresses the Militia. In that paper, Hamilton describes how he would organized the Militia not how it was organized. The good part of Hamiton's paper is that he addresses how he could form most of the Militia and he uses the term militia to include EVERYONE, not just volunteers. Please note after the Constitution was passed, the Congress rejected Hamilton's idea of a two step Militia, a Select Militia and a Regular Militia, opting instead for a universal Militia (i.e. Every male between the ages of 18 and 45 were members of the Militia).

Yes, the terms "Militia" is NOT defined in the US Constitution nor the Bill of Rights. The traditional way of interpreting terms used in the Constitution is to see how the First Congress handled those same terms. In the Militia act of 1792 (Re-passed as the Militia Act of 1795, after the Bill of Rights were passed, but without any significant changes) sets forth that the Militia consisted of every able bodied white male between the ages of 18 and 45 years of age.

There are problems even with this, for Washer Women were NOT addressed in the Militia Act of 1792. yet the practice for at last 1000 years was that for every 20 men, there was one Washer woman (And that would continued in the US Army till the late 1880s, when Congress would outlaw Washer Women, a Statute still on the books for the simple reason if it was repealed the Common Law Rule would come back into place).

Yes, 5% of a military unit's personel (i.e. The Washer women) were NOT addressed, for the simple reason it did NOT have to be addressed, the law was clear, you had 20 men (A traditional Platoon), those 20 men were assigned one Washer Woman (Who tended to be the Platoon's Sargent's wife or other female relative, I mention this for a lot of folks today confuse the Washer Women with the Camp Followers, Camp Followers followed the Camp, washer women were INSIDE the camp).

I bring up washer women for it clearly shows the Militia Act of 1792 was written based on Congress's view of traditional military unit make up, and did NOT address what that unit consisted of unless Congress wanted to make a change OR to make something clear.

Side Note: The Militia Act of 1792 was the law of the US in regards to the Militia till the Dick Act of 1903, which created the Modern National Guard. One of the reason for the Dick Act was the question of Constitutionality of the National Guard for it was a Volunteer unit NOT a unit of all males in the State. The State Courts had long upheld the National Guard as the Militia on the Grounds the State Legislature called it so (And the National Guard was viewed by the States as a more reliable instrument to put down labor strikes then the Traditional Militia, and after 1865 the Courts came to oppose labor strike and would uphold almost anything that could be used to put down Labor Unions, in fact the Sherman Anti-Trust Act only passed Congress on the grounds it could be used against Unions, and was used against Unions, till the Clayton Act exempted Labor Unions from the Sherman Anti-Trust Act).

Side note #2: As I said the State Courts wanted the National Guard to be Constitutional so ruled it was, the Federal Courts avoided the same issue for they also wanted to rule the pre 1903 National Guard a Constitutional Militia, but it was feared that the Courts would look at the Militia Act of 1792 and ruled it was clear that the National Guard was NOT Militia and thus unconstitutional without Congressional authorization (The State Courts ruled that since the Federal Government did NOT sue the state to put down the National Guard, the National Guard was constitutional as either a group of people assembling as guaranteed under the First Amendment or a legal Militia under the Militia Clause of the US Constitution). The Federal Courts avoided the Issue on the Grounds of Standing, i.e. only the Federal Government had Standing to sue the States over the National Guard, and only the President had Standing to sue the States on that issue.

What is the difference between "Troops" and "Militia"? Today it is claimed the difference is one of full time or part time. i.e. The National Guard, like the Regular US Army issues its personnel, Weapons, Field Equipment, ammunition etc, and the Soldiers are PAID for the time period they are called into service. The difference between the Reserves of today (Which includes the National Guard) and Regular Troops is that the Reserves are paid for one week end a month, two or three weeks annual services (and paid when called up for other service or training). I.e. the Reserves are NOT full time, the Regular Army is full time.

In the 1792 Militia Act, the Militia was defined as EVERY WHITE MALE BETWEEN THE AGES OF 18 AND 45 (Under the Post Civil War Amendments, the term "White Male" includes ALL MALES). Furthermore such Militia men had to come equipped (i.e Supply THEMSELVES NOT by the State or Federal Government) the following:

1. A .69 caliber Musket (Or a Rifle, if a member of a Rifle Company)
2. A pack, with tent, and blankets,
3. 20 rounds of Ammunition
4. Personal Clothing.

The Regular forces of the time period had all of those items issued to them. The modern equivalent is issued to the Regular and National Guard units of today. Thus the only difference between Regular and Reserves forces today is that the Regular units are Full time the Reserve units, are Part Time. The problem is even in the 1790s, regular forces were know to have "Reserves" independent of the Militia, whose arms, equipment and Ammunition was supplied to them, while the Militia had to provide their own.

Furthermore Militia was NOT something you volunteer for, you went because you were called up NOT because you volunteered to be called up (In the battle of New Orleans, even the men who were to poor to own a musket were called up for duty and told to bring clubs, to be used against British Regulars if the Regulars broke the US lines, these club bearers were to charge the break through and try to push the British back, fortuity they were not needed).

The modern concept of Reserves, can be traced back to some French units in the early 1700s, but came into full play after the Defeat of the Prussian Army by Napoleon in the Battle of Jena in 1809. In response to that defeat Prussia developed the modern reserve army concept (Napoleon restricted the size of the Prussian Army, thus to get around that restriction Prussia would train men, then "discharge" them to a reserve status, and called up additional men for training, thus keeping the total of Active Forces within the limits set by Napoleon, Napoleon had put no restrictions on Reserve forces of Prussia just active forces).

The key difference between these Reserve Forces and the older Militia was that the men were centrally trained, all clothing, arms, ammunition etc was provided by the State. Most of Europe by the time of WWI, had replaced their older Militia with similar reserve units (Most importantly France after its defeat in the Franco-Prussian War of 1870). Britain and the US tended to be the only exception to this transformation do more to domestic politics and the desire in the US to keep the Militia available for State use against Strikers.

This change was noted even in the 1800s, the joke being, every Prussian male was in the Army, with all of them were on 11 month leaves. The Dick Act was an attempt to convert the older US National Guard Units (Which tended to be clubs more then anything else) to a proper Reserve in the Prussian tradition, but retain they use as strike breakers (The true Militia like Universal Military Services as in the Prussian reserve system tended to make units less reliable in such domestic disturbances and thus disliked in the US after the General Strike of 1877 and similar disturbances in Britain in the 1830s. These units, the True Militia and the Universal Military Service units tended to include people who had gone on strike and/or supported the strike and thus NOT usable to put down such strike. No one wanted a repeat of what happened in Pittsburgh in 1877, The Philadelphia Brigade opened fire on Strikers, when the Pittsburgh Brigade saw that, they stacked arms and left, leaving the Philadelphia Militia not only facing strikers to their front, but on their flank where the Pittsburgh Militia had been, The Philadelphia Militia then retreated and was rejoined by the Pittsburgh Militia after their officers talked they men to come back, but then the Roundhouse the National Guard had retreated to burned to the ground and the Militia retreated out of Pittsburgh, once in Butler county was discharged from further duty).

The 1877 series of Strike, known as the General Strike (It went from Baltimore to St Louis, St Louis was actually run by a Commune type government during the height of the Strike) saw both Regular US Troops and National Guard Troops being used to put down the strike. This strike had a huge affect on State and Federal Courts wanting to uphold the National Guard as "Militia" for the Federal Government, which was evenly split between the two parties, could not pass any law making the National Guard into Federal Service (The practice done during the various Indian Campaigns after the Revolution to 1877, and for the War of 1812, Mexican War and the US Civil War). Thus the National Guard had to be Militia, even through it was made up of people who joined it as a club NOT the full call up of all men between the ages of 18 and 45 as set forth in the Militia Act of 1792 (Which was still the law of the Land in 1877). The Pennsylvania National Guard of 1877 issued weapons to its enlisted ranks AND issued uniforms and other equipment just like a Regular Army unit did at that time period.

I bring this all up for the issue that the National Guard is NOT the Militia has been avoided in the various gun control cases that have reached the US Supreme Court. What is meant by the term "Militia"? Does it have to be universal (as both the 1792 Militia Act states AND as Hamilton stated as to Militia) or can it be an "select" Militia (The term Hamilton used for a smaller, better equipped and trained Militia within the Regular Militia of his time period). What is the effect of the state providing weapons and Equipment as oppose to the Militia bring it themselves? I can not believe the difference is solely do to being full time or part time, for the Reserve Troops have always been part time, except when called into service, but that is also true of the Militia.

My position is simple, the Militia consist of all persons of the US. The US can restrict who can be called up and when, but that can be changed as needed. The State has the right to form the Militia if it wants to, but unless Congress states otherwise, it must consist of everyone in the state, with reasonable exceptions (i.e. Medically unfit, member of an exempt class of people, exempt for various reasons mostly due to the fact they have important functions elsewhere in time of a crises, firemen, police officers, judges, etc. Not Doctors or Nurses unless members of a emergency Hospital care unit or taking case of patients with ongoing medical problems). Volunteers do not cut it, for they are NOT everyone. I would not even exempt women, for most of the work of the Militia has been non-combat duties in support of regular and reserve forces that do the actual fighting. If the state calls the Militia into Service, it should be universal, including both combat and non-combat units.

The National Guard, do to the fact they are volunteers, paid, equipped and armed by the State and Federal Government are State Troops and thus only constitutional on the grounds Congress has authorized them ever since 1903. The National Guard is NOT militia, no matter what the State and Federal Government claim them to be.

The problem, unless these units do something to someone that only they can do (i.e. hard to show, most cases, these Militia will work under a Police Officer authorized under the General Police Power reserved to the States) the only person who has standing to challenge the existence of these units is the President of the United State (and historically the President has supported the National Guard and these other Guard units for they tend to be very politically powerful).

I doubt that Obama (or actually his Attorney General) will attack the existence of these units for it would be to costly politically for him to do so. It is the perfect case to get the Supreme Court to rule on the issue, but only if the President actually files an action. No one else can for no one else has standing (The President has standing for if such units are "State Troops" such "State Troops" have no right to exist without Congressional approval and as Commander in Chief the President has the right to enforce the protection of the Federal Government from any encroachment by any state of any power reserved to the Federal Government).

It will be hard for anyone else to claim standing, thus no one challenged the National Guard from its start as Clubs in the 1820s (as the regular Militia deteriorated due to lack of any foreign enemy after the Native Americans were driven from the East Coast right after the War of 1812). These Clubs adopted the name National Guard in honor of Lafayette when he came back to visit in the 1830s. At times Congress even provided such units money and arms, but no authorization till the Dick Act of 1903.

Even after the passage of the Dick Act, the Courts kept ruling no one had standing to challenge the Dick Act on the ground only a State could (and the State liked the idea of the Federal Government giving them money for the National Guard so no state wanted to lose the funding, so no state has ever made such a challenge). There are problems with the Dick Act and the 1947 Act that replaced the Dick Act and threw the National Guard with the Army and other services Reserve components of Regular Forces) but no state has even made a Constitutional challenge of it for no state has wanted to lose funding for its National Guard units.

Arizona is giving Obama the ability to attack the National Guard as Militia. The National Guard and Obama will suffer no harm if a court would rule the National Guard is State Troops, for Congress has authorized the National Guard thus the National Guard since 1903 has meet the Constitutional Requirement that any State Troops be approved by Congress.

These "Guard" units are a different matter. Are they Militia or are they State Troops? If the later, Congress has NOT given permission for Arizona to have them and thus they are unconstitutional. It is a perfect case for Obama to seize and stop these troops from doing any harm, but is he willing to do so?

[eringer]

4. Sooner or later it had to happen

Brewer's Brownshirts. History is repeating itself.

[TheCruces]

5. I can't imagine anything going wrong with this...