Squinney
Squinney, great research! Thanks.
I did the following research in response to Foxfyre's challenge (The Bush Aftermat thread) which some of you may not visit and reposting it here for your info. She challenged New Orlean's governor's reluctance to allow federalizaton of Lousiana state guard forces until the federal troops were in place to relieve them. Why, because they would not have been allowed to continue to carry weapons. Those weapons were needed to control any illegal activity.
---BBB
Foxfyre wrote: BBB I'll hunt up a source as soon as you provide the requested information re the National Guardsmen not being allowed to carry rifles if they are under federal authority.
CITATION: There was, and is still, an important distinction between the state and national guards. The state guard has a domestic law enforcement role (posse comitatus). That disappears when its members are called to federal duty. U.S. law prohibits the Army or Air Force from engaging in domestic law enforcement.
CITATION: Posse comitatus:
http://en.wikipedia.org/wiki/Posse_Comitatus_Act
ADDITIONAL CITATIONS: The U.S. Supreme Court decided the case in June 1990. It ruled that, "Article I's plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States, without either the consent of a State Governor or the declaration of a national emergency." Moreover, "since the original gubernatorial veto was not constitutionally compelled, its partial repeal by the Amendment is constitutionally valid".
However, the Court did decide that governors retained the right to reject deployment if they could prove that it significantly affected the ability of the state guard to carry out its state activities. "The Minnesota unit, which includes about 13,000 members, is affected only slightly when a few dozen, or at most a few hundred, soldiers are ordered into active service for brief periods of time. Neither the State's basic training responsibility, nor its ability to rely on its own Guard in state emergency situations, is significantly affected. Indeed, if the federal training mission were to interfere with the State Guard's capacity to respond to local emergencies, the Montgomery Amendment would permit the Governor to veto the proposed mission."
The Court added, "The Governor and the United States agree that if the federalization of the Guard would interfere with the State Guard's ability to address a local emergency, that circumstance would be a valid basis for a gubernatorial veto".
The Court also noted, "Congress has provided by statute that in addition to its National Guard, a State may provide and maintain at its own expense a defense force that is exempt from being drafted into the Armed Forces".
How has the massive mobilization of the Guard in recent months affected the states? Skilled Guards are in high demand for overseas missions and homeland security. For example 70 percent of enhanced brigades and 75 percent of divisional combat battalions, frequently called on by state governors to respond to natural disasters, were deployed overseas between September 2001 and March 2004.
National Guard forces are increasing their role in Iraq because the active-duty Army is not large enough. When the next rotation of soldiers moves into Iraq late in 2004, up to 50 percent could be Guard and Reserve, compared to 39 percent in July and 25 percent in 2003. This means even more Guard members will not be available to respond to natural disasters or terrorist threats. Both the conservative Heritage Foundation and the liberal Center for American Progress agree that the National Guard must be available to assist with homeland security even if it requires expanding the size of the standing Army and rethinking the Total Force concept.
Governors of both political parties are wondering if they will be short-handed in cases of domestic emergencies. Major General Timothy Lowenberg, Commander of the Washington State National Guard, after attended a meeting of meeting of governors and Pentagon officials, said, "There are absolutely no partisan patterns to the concerns being raised. They are being articulated by governors of both parties."
Some states, like Texas and Nevada, have only a modest share (12 percent) of their guard currently stationed overseas. But a number of states have much higher proportions. New Jersey has 60 percent of its state Guard forces on federal active duty. More than 40 percent of New York's Guard has been alerted or mobilized for federal duty, meaning neither they nor their units' equipment are available for homeland security. In Washington 62 percent of the state's Army Guard soldiers have been deployed; in Idaho the number is 80 percent.
Virginia, North Carolina and the rest of the southeastern coast are facing hurricane season, a time when the Guard traditionally plays a crucial role in clean up and relief efforts. The center of the country, especially Missouri, is concerned about flooding. Western states worry about wildfires. Oregon's National Guard, for example, has half its usual number of firefighters because of federal call-ups.
There is also a financial impact on states from the call up of the guard. In Montana and California the Guard has withdrawn its Black Hawk helicopters from the job of responding to small fires that can flare into forest fires, forcing the states to contract with private companies to do the job. More than 130 Arizona prison guards are serving overseas, contributing to problems in crowded prisons. Tennessee has seen its rural police and sheriff's departments depleted by call-ups.
If the massive posting of reservists and guard members abroad continues it could spawn renewed lawsuits. At least one has been filed, in August of 2004, by a sergeant in the Army National Guard who viewed as unconstitutional the Army's "stop-loss" orders that prevent reservists from leaving the military when their enlistment periods end.
It is also possible that states could once again refuse to send guards abroad, citing the 1990 Supreme Court decision that gave them that right if deployment would "significantly affect" their ability to satisfy their traditional functions.
CONTROL OF THE MILITARY