A Well-Regulated Militia

Few Americans know that we have two armies and that both are acknowledged by the United States Constitution. One is the military that we know best, the regulars: the U.S. Army and the U.S. Navy, joined later in history by the Marines and the Air Force. The other, originally known as the militia, is now called the National Guard.

Why would our Founding Fathers invite confusion and duplication by creating two separate military establishments? The answer dates to the earliest city-state republics in Greece. Throughout 2,800 years of republican theory and practice, a standing army has always been considered a threat to republican liberty and a potential instrument of tyranny. A standing army composed, necessarily, of professional soldiers rather than citizen-soldiers represented too convenient an instrument of power for a putative dictator, tyrant or "man on a white horse."

Educated in the classics, familiar with both Greek and Roman republican history and culture, and animated by the language and values of the republic, the founders were keenly aware of this danger. And it led to one of the most bitter struggles in the establishment of the new American Republic. Alexander Hamilton and the Federalists saw the future of the United States as a commercial republic, with expanding trade frontiers and intricate alliances between political and business establishments. These alliances would be threatened by circumstance from time to time, whether by local political unrest or foreign commercial rivals. American commercial interest would have to be protected by land and by sea, and, therefore, in Patrick Henry's memorable and sarcastic formulation, "a standing army we shall also have ... to execute the execrable commands of tyranny." As glorious as such an army might be, Henry's anti-Federalist allies believed, it would also be expensive and politically dangerous. They were only partially satisfied by the constitutional provision limiting military appropriations to two years, and by civilian command and oversight of the military.

Though neither Federalist nor anti-Federalist, and largely absent as ambassador to France during the constitutional debates, the ardent republican Thomas Jefferson urged his ally James Madison and others to, at the very least, isolate domestic politics from the standing army and its international commercial concerns by providing for a separate army, a distinct military establishment, to protect and defend the homeland. This separate military force already existed in the form of state militias. Following ancient republican precedent and history, as well as radical Whig ideology, the core of this homeland militia would be citizen-soldiers, the successors to the Greek farmer-warrior. The militia would continue to be under the command and control of the respective states, but the Constitution also allowed Congress and the president limited authority to "federalize" the militia under certain circumstances. Article I, Section 8 of the U. S. Constitution gives Congress the authority "[t]o provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions" and "[t]o 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." Article II, Section 2 provides that the president shall be commander in chief of the state militias "when called into actual service of the United States," just as he is to be commander in chief of the regular forces.

In his first inaugural address, Jefferson counted among the principals forming "the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation ... a well-disciplined militia, our best reliance in peace, and for the first moments of war, till regulars may relieve them." Quaint as it seems now, Jefferson stood modern defense on its head: Citizen-soldiers would repel invaders until the regulars arrived, rather than regulars invading elsewhere, as today, with the National Guard (militia) relieving them. Jefferson's philosophy on the military's role in American society remained constant throughout his presidency. In his eighth and last annual message to Congress and the American people, he wrote, "For a people who are free, and who mean to remain so, a well-organized and armed militia is their best security."

The events of September 11 changed all that. After the attacks, government officials began suggesting that the military would do a better job than the National Guard at protecting the homeland. Prior to the terrorist attacks on the World Trade Center and the Pentagon, the U.S. Commission on National Security/21st Century, having warned that terrorists would surely attack America, strongly recommended that the National Guard be trained and equipped primarily for the homeland-security mission, its original constitutional purpose, in addition to supporting regular expeditionary forces, as it presently does in Iraq and Bosnia. In its final report to the president, on Jan. 31, 2001, the commission stated, "We urge, in particular, that the National Guard be given homeland security as a primary mission, as the U.S. Constitution itself ordains."

Though not yet adopted as official government policy or even comprehensively debated, this issue must be addressed with considerable urgency. Unless the National Guard's primary homeland-security mission is clearly understood, presidents will continue to be tempted to use it exclusively as an auxiliary expeditionary and invasion force.

The question of which army should defend America's homeland was raised only obliquely post-9-11. Not too long after the terrorist attacks, voices in Congress and the administration raised the ancient issue, whether realizing its rich history or not, by urging reconsideration of the Posse Comitatus Act. The act was passed in 1878 in the wake of the threatened use of military forces following 1876's razor-thin national election. "Posse comitatus," according to Black's Law Dictionary, is simply "the power or force of the county," the entire adult population, which the sheriff may summon and deputize to guarantee the peace. The act forbade regular military forces from occupying or conducting operations on American soil: "From and after passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said forces may be expressly authorized by the Constitution or by act of Congress."

Sen. John Warner (R-Va.), chairman of the Senate Committee on Armed Services, and Deputy Defense Secretary Paul Wolfowitz have both urged reconsideration of the act in order to permit a greater role for the standing military in defense of the U.S. homeland. This is an absolutely crucial issue, though not so far recognized as such by opinion leaders and the public alike. That infamous date, 9-11, raises fundamental constitutional issues hitherto largely ignored or evaded: Which army, regular or militia, professional or citizen-soldier, should have the primary responsibility to protect the security of America's homeland? And does the age of terrorism justify overturning a 225-year-old American belief system and reversing a 2,800-year-old history of the republican ideal?

This just might be the most important issue raised by the age of terrorism, for it could well determine how and by whom our constitutional rights and civil liberties will be protected on domestic soil in the future, whether indeed we must sacrifice those liberties to protect our security, and even what kind of nation and people we are. If the Pentagon becomes our principal public-safety agency, if uniformed standing soldiers guard our streets, if our primary domestic guardians are professional military forces, the American Republic, whose flag we salute and to which we pledge allegiance, will no longer exist as such.

Few would argue that, should a major catastrophe strike the United States, the organization, manpower and strength of our military forces should not be employed. Clearly, in a time of great national emergency our nation will call upon all its resources to protect itself and respond in every conceivable way to the demands of that emergency.

Our military forces have communications, health, transportation and other systems -- almost all mobile and portable to one degree or another -- that could prove critical in an emergency. No abstract theory should dictate that these systems and capabilities not be deployed domestically. But that is not the issue. According to the ideal of the historic republic, and the principles of the American Republic particularly, the front line of homeland defense is composed of citizen-soldiers who formed the original militia, for whom the Second Amendment was designed and who now form the 50 state National Guards. This was their original constitutional mission and one for which the National Guard must be urgently trained and equipped rather than, as at present, used almost exclusively as combat support. Only when their homeland-security training, equipment and resources prove inadequate -- when a disaster or attack is of the greatest magnitude -- are the regular forces to be called upon. As Jefferson counseled, under our Constitution and history the standing army is the last, not the first, resort for domestic security against terrorist attack.

Further, as a practical matter the National Guard is "forward deployed," that is to say living and working, in 2,700 communities, including all major cities, across the country. The Colorado National Guard, for example, has much more immediate access to the urban areas of Colorado than most major U.S. Army units. The one exception is the Fourth Army division, stationed at Fort Carson, Colo. But this is the exception that proves the point: If Colorado were to be attacked, the frontline forces are the Colorado National Guard, which would be supplemented and backstopped, if necessary, by the regular U.S. Army.

What services could the National Guard provide, if adequately prepared? Specially trained units can supplement local SWAT teams in terrorist-attack prevention. Guard units can also substantially augment local authorities in chemical, biological and nuclear emergency treatment, as well as damage limitation, population evacuation, establishment of emergency communications systems and a wide variety of attack-response roles. As they did in New York City, state Guard units can seal off attack sites and carry out crowd-control measures. The National Guard can also play a crucial role in protecting critical infrastructure facilities, including financial centers, transportation facilities, energy production and distribution systems, communications networks, petrochemical plants and food-distribution centers. What's more, it can supplement U.S. Customs Service and Coast Guard capabilities in protecting vulnerable ports and backstop the Border Patrol on our land borders.

No advocate of the homeland-security mission for the National Guard envisions the Guard in an aggressive counterterrorism role or believes it can prevent terrorism except in its protective mode. As frontline homeland defenders, the Guard would not replace existing intelligence and law-enforcement agencies, including the FBI. But, given the constitutional and statutory history outlined here, giving the Guard, rather than regular forces, the homeland-security mission avoids the serious constitutional threats presented by the stationing of regular military forces in America's communities. However, because the Bush administration has not undertaken to train and equip -- let alone formally task -- the National Guard for the homeland mission, operational relationships between the Guard and local law-enforcement and emergency-response organizations can only be surmised.

One of the great perplexities of post-9-11 America is this administration's lack of urgency about homeland security generally and preparation of the National Guard particularly. This lack of urgency is made even more inexplicable by a statement made by President George W. Bush to a National Guard unit less than 30 days after he took office. "As threats to America change," he said, "your role will continue to change. The National Guard and reservists will be more involved in homeland security, confronting acts of terror and the disorder our enemies may try to create. I welcome the important part you will play in protecting our nation and its people."

Nevertheless, very little in fact changed. More than a year after the first major terrorist attack (almost all experts agree there will be others), a task-force report by the Council on Foreign Relations titled "America -- Still Unprepared, Still at Risk," following the recommendations of the U.S. Commission on National Security/21st Century, urged the president and Congress to take all actions necessary to train and equip the National Guard for the homeland-security task. "A year after September 11, 2001," the report read, "America remains dangerously unprepared to prevent and respond to a catastrophic terrorist attack on U.S. soil. ... An aggressive approach to revamping the capabilities of National Guard units designated to respond to domestic terrorist attacks can in the short term provide a more robust response capability while states and localities work to bring their individual response mechanisms up to par."

To date, that has not been done. Indeed, now that we seem bogged down in Iraq for the foreseeable future, probably for a number of years, it will be even more difficult to assign this mission to the National Guard. Guard units are currently deployed, in some cases for many months, for reconstruction, peacemaking and peacekeeping chores in Iraq, Bosnia and Afghanistan (and very soon quite probably in Liberia). This will prevent preparing the citizen-soldiers, now quasi-permanent expeditionary forces, for the more crucial and urgent task of defending America's home shores. Further, a disproportionate share of National Guard members double as "first responders" -- local police officers, firefighters and emergency health workers -- thus making America's communities doubly vulnerable to attack. Jefferson, and possibly even Hamilton, would be dismayed.

Were we to heed the sage of the Revolution, Benjamin Franklin, on this basic issue, we might appreciate both his foresight and his wisdom. When asked by a concerned citizen outside the Constitutional Convention in 1787 about the nature of the new nation, he described it as "a republic, if you can keep it." Almost 20 years earlier, he'd acknowledged the difficulty of keeping it intact. "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety," he wrote. Franklin would no doubt conclude today that by seeking domestic security through the deployment of a professional army on America's homeland and in its neighborhoods, we are giving up essential liberty to obtain safety and are taking a giant step toward losing the republic.