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Why More States Should Establish State Defense Forces Jessica Zuckerman, Colonel Martin Hershkowitz, Brigadier General Frederic N

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Why More States Should Establish State Defense Forces Jessica Zuckerman, Colonel Martin Hershkowitz, Brigadier General Frederic N BACKGROUNDER No. 2655 | FEbruarY 28, 2012 Why More States Should Establish State Defense Forces Jessica Zuckerman, Colonel Martin Hershkowitz, Brigadier General Frederic N. Smalkin, and James Jay Carafano, Ph.D. Abstract n July 27, 2011, Arizona’s Senate Twenty-two states currently have OBill 1495 (S.B. 1495) went into Talking Points volunteer state guard units. These effect, authorizing Arizona’s gover- 1 units, formally known as state nor to establish a state guard unit. ■■ In July 2011, Arizona’s Senate Bill defense forces (SDFs), are today’s These units, formally known as state 1495 went into effect, authorizing state militias. Authorized by the defense forces (SDFs), are today’s Arizona’s governor to establish Constitution and built on a strong modern state militias. Authorized a state guard unit. These vol- U.S. militia tradition, today’s SDFs under the Constitution and by state unteer units, formally known as offer a vital, low-cost force multiplier and federal law, and built on a strong state defense forces (SDFs), are today’s modern state militias. and homeland security resource. U.S. militia tradition, today’s volun- They are authorized under the In July 2011, Arizona’s Senate Bill teer state defense forces offer a vital, Constitution and by state and 1495 went into effect, authorizing low-cost force multiplier and home- federal law. Arizona’s governor to establish an land security resource.2 ■■ Historically, SDFs were organized SDF. While SDFs are not necessarily It now stands with Arizona’s gov- along traditional unit lines, usu- required in states with low risk of ernor to establish the force. If estab- ally as light infantry and military natural disasters or terror attacks, lished, Arizona’s state defense force police forces. Today’s threats several states that are at high risk would become the 24th active SDF of require a different mission. Mod- for catastrophes have yet to create the United States (22 in other states, ern SDFs serve as auxiliaries to a modern state defense force. Such one in the Commonwealth of Puerto the National Guard units of their states can no longer afford to place Rico). Obtaining statutory authoriza- states, as well as low-cost force multipliers for state homeland establishment of an SDF on the tion to stand up the force, however, security missions in disaster sidelines. is only the first step. Arizona’s state preparation, response, and leaders must now organize and train recovery. their newly authorized SDF and ■■ SDFs continually reside in their assign to it those missions most criti- respective states and can be This paper, in its entirety, can be found at cal to the state. called up quickly and easily in http://report.heritage.org/bg2655 Historically, state defense forces times of need. Produced by the Douglas and Sarah Allison were organized along traditional ■■ Center for Foreign Policy Studies By building on best practices unit lines, usually as light infantry throughout the nation, Arizona The Heritage Foundation and military police forces.3 This 214 Massachusetts Avenue, NE can establish an SDF that meets Washington, DC 20002–4999 model, however, is largely a relic of the needs of its population—and (202) 546-4400 | heritage.org past homeland security and home- serves as an example for other Nothing written here is to be construed as necessarily land defense needs. Today’s threats states. reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill require a different mission. Modern before Congress. SDFs now serve as auxiliaries to the BACKGROUNDER | NO. 2655 FEbruarY 28, 2012 National Guard units of their states, State Defense Force: With this language, the as well as force multipliers for state The Modern State Militia Constitution granted the federal gov- homeland security missions in disas- State militias have been seen as an ernment the power to call forth the ter preparation, response, and recov- essential component of the defense of militia of the United States, but left ery. This mission portfolio requires a America since the time of its found- the states the freedom to man and different model than has been seen in ing. Building on English and Colonial train their militias as they saw fit. the past, one that centers on building experience, and reflecting their Five years after the Constitution professional units capable of contrib- concerns about maintaining a large was ratified, state militia powers uting substantial value added to the standing federal army, the Founding were more fully addressed by the states and augmenting the National Fathers inscribed their belief that a Militia Act of 1792, which provided Guard’s capabilities. well-regulated militia was “the ulti- that the adjutant general (TAG) Once Arizona’s governor formally mate guardian of liberty” within the of each state would command the authorizes the establishment of the Constitution, proclaiming among the militia and that state militias would state defense force, determining how enumerated powers of Congress the receive no federal funding.5 By 1820, to design and build the force will following: the Supreme Court would further be the next challenge. In building solidify the powers of the states a professional SDF, Arizona could The Congress shall have the in commanding militia units. In learn from the experiences of other power…to provide for calling Houston v. Moore, the Court ruled SDFs, and, in turn, serve as a model forth the Militia to execute that states maintained concur- for other states. SDFs are not neces- the Law of the Union, sup- rent authority with the President to sarily required in states with low risk press Insurrections and repeal mobilize the militia in the event of a of natural disasters or terror attacks. Invasions; natural disaster, civil unrest, insur- But several states that are at high risk rection, or invasion.6 This decision for catastrophes have yet to create a To provide for organizing, arm- helped to set the basis for the modern modern state defense force, despite ing, and disciplining, the Militia, state-apportioned militia. the SDFs’ role as cost-effective force and for governing such Part of Today, 22 states and one terri- multipliers and resources, especially them as may be employed in tory have a state defense force, with when a state’s National Guard units the Service of the United States, the force strength of these units are depleted by combat deployment, reserving to the states respec- totaling around 14,000 members in peacekeeping, or homeland defense tively, the Appointment of the 2005.7 Authorized by Congress in missions. Such states can no longer Officers, and the Authority of Title 32 of the U.S. Code, SDFs are afford to place the valuable national training the Militia according entirely under state control—unlike security asset that an SDF embodies to the discipline prescribed by the National Guard, which can serve on the sidelines. Congress.4 the state under Title 32 or the federal government under Title 108—both in 1. State of Arizona, Senate, “Arizona State Guard; Establishment,” S.B. 1495, 2011, at http://www.azleg.gov/legtext/50leg/1r/bills/sb1495p.pdf (February 7, 2012). 2. 32 U.S. Code § 109, “National Guard, Maintenance of Other Troops,” August 11, 1955, as amended. Congressional statutory approval of state defense forces is mandated by U.S. Constitution, Art. I, sec. 10, cl. 3. 3. Col. Martin Hershkowitz (Ret.), Col. Robert Paterson (Ret.), and Maj. Gen. James McCoskey (Ret.), “A Proposed Structure for Today’s State Defense Force,” State Defense Force Monograph Series, Fall 2009, at http://www.sdfpubcntr.net/MissionSDFColdwarV42009.pdf (September 22, 2011). 4. U.S. Constitution, Art. 1, § 8. 5. Michael D. Doubler, Civilian in Peace, Soldier in War: The Army National Guard, 1636–2000 (Lawrence, Kan.: University Press of Kansas, 2003), p. 68, at http:// www.kansaspress.ku.edu/douciv.html (February 7, 2012). 6. Houston v. Moore, 18 U.S. 1 (1820). 7. U.S. Department of Defense, “Homeland Defense Forces for Homeland Defense and Homeland Security Missions,” No. 3898, November 2005, at http://www. gasdf.net/documents/DoDReportonSDFNov.20051.pdf (February 7, 2012). 8. 10 U.S. Code § 13. 2 BACKGROUNDER | NO. 2655 FEbruarY 28, 2012 peacetime and otherwise.9 (National Guard while serving solely in state easily coordinate with other key Guard troops serve both in their status under Title 32, SDFs may components of the state emergency state’s militia and concurrently as enforce civilian criminal law unin- response. reserve personnel of the Army or the hibited by legal obstacles, if given In recent years, SDFs have proved Air Force, the Navy and the Marine that power under state law.12 their value as vital force providers to Corps having no National Guard Typically, SDFs are under the homeland security and emergency components.) Hence, while the control of the state’s governor, in his responses. After 9/11, for instance, National Guard is a dually appointed or her role as militia commander in the New York State Guard, the New force that can be called to federal chief; operational control and the York Naval Militia, and the New service under Title 10, or remain a chain-of-command typically run Jersey Naval Militia were activated state force under Title 32, SDFs serve from the state’s adjutant general, to assist in response, recovery, and solely as Title 32 forces. through the state’s military depart- critical infrastructure security.15 This status gives SDFs two impor- ment, to the commanding general of An estimated 2,274 SDF personnel tant advantages. First, SDFs are the SDF. 13 That is, the adjutant gen- participated in recovery efforts after continually resident within their eral, who is the state’s senior military Hurricane Katrina.
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