From the Heritage Foundation on the need for modern State Defense Forces

http://www.heritage.org/Research/Reports/2010/10/The-21st-Century-Militia-State-Defen

Abstract: State militias have helped to defend the United States since the Revolutionary War. Today, 23 states and territories have organized militias, most commonly known as State Defense Forces (SDFs). SDFs provide governors with a cost-effective, vital force multiplier and resource, especially if state National Guard units are deployed out of state. However, in general, SDFs are underfunded and undersupported. Some states at high risk for a natural or man-made disaster have not even created SDFs. The U.S. and its states can no longer afford to sideline these national security assets.

Since the founding of the United States of America, local militias have played an important role in its defense and security. Bolstered by the Founding Father’s concerns about maintaining a large standing army and preserved within the Constitution, the concept of the citizen soldier has since become ingrained in American culture and government.

Currently, 23 states and territories have modern militias. As of 2005, these militias had a force strength of approximately 14,000 individuals nationwide.[1] Most commonly known as State Defense Forces (SDFs) or state militias, these forces are distinct from the Reserves and the National Guard in that they serve no federal function. In times of both war and peace, SDFs remain solely under the control of their governors, allowing the governors to deploy them easily and readily in the event of a natural or man-made disaster.

Building on a strong U.S. militia tradition, today’s State Defense Forces offer a vital force multiplier and homeland security resource for governors throughout the nation. SDFs can greatly fortify homeland security efforts in the states by serving as emergency response and recovery forces. Consequently, state leaders should make strengthening existing SDFs a priority, while encouraging their creation in states that do not yet have SDFs, especially in states at high risk of a natural or man-made disaster.

This paper is the result of a first attempt by any organization to conduct a comprehensive survey of the nation’s SDFs. The Heritage Foundation sent surveys to the leaders of all 23 of the nation’s SDFs, and 13 responded. This paper analyzes their responses, looks at the history of the SDFs and the issues and challenges that they face, and makes recommendations on expanding the SDF role in homeland security.

From the Founding Through Today

Informed by British history and colonialism, many of the Founding Fathers believed that a large standing army could easily become an instrument of tyranny.[2] Nevertheless, the onset of the Revolutionary War clearly demonstrated the undeniable need to field a unified, professional national defense force to defeat the British. Thus, in 1775, despite the colonies’ long reliance on militias to defend their territories, the Continental Congress created the Continental Army, the nation’s first standing military force.[3]

However, creation of the Continental Army did little to impede the continued existence of militias throughout the nation. While militias were decidedly less effective during the Revolutionary War than the Continental Army, they nevertheless contributed to the war effort. In the early battles and later as auxiliary support to the Continental Army, the militia helped to win the war, securing their continued role in the nation.[4]

Ultimately, despite misgivings about the effectiveness of militias, the Founding Fathers incorporated their belief that a well-regulated militia was “the ultimate guardian of liberty” into the Constitution.[5] Article 1, Section 8 of the U.S. Constitution states:

The Congress shall have the power…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.[6]

The language of the Constitution granted the federal government the power to call forth the militia of the United States, but left the states the ability to appoint officers and to train their militias.

Five years after the Constitution was ratified, state militia powers were more firmly defined by the Militia Act of 1792, which required all free men ages 18 to 45 to serve in the enrolled militia. Further, laying the basis for principles that guide today’s State Defense Forces, the act dictated that the Adjutant General (TAG) of each state would command the militia and that state militias would receive no federal funds. At the same time, however, the Calling Forth Act of 1792 gave the President power to mobilize any and all state militia forces when the nation was under threat of invasion or in times of “insurrections in any State.”[7]

However, the Militia Act and Calling Forth Act did not end the contest between state governors and the federal government for control over militia forces. Within a few decades, this debate reached the Supreme Court. In 1827, the Court ruled in Martin v. Mott that the President had the exclusive right to determine if conditions warranted mobilization of militia forces. However, in 1820, the Court held in Houston v. Moore that states maintained concurrent authority with the President to mobilize the militia in the event of a natural disaster, civil unrest, insurrection, or invasion. This decision helped to set the basis for the modern state-apportioned militias.[8]

By the end of the War of 1812, the militias enrolled under the Militia Act of 1792 had largely declined as population growth made their size unwieldy and ineffective.[9] As states increasingly abolished mandatory militia service, volunteer militias became more prevalent. During the Civil War, the combined force of enrolled and volunteer militias proved more useful than in any previous war. Northern militias acted both independently and in conjunction with the U.S. Army to guard prisoners, man forts, and protect the coast, freeing up federal troops for duty elsewhere.[10]

Despite their utility during the Civil War, volunteer militia forces remained largely disparate and disorganized bodies until the 20th century. In 1903, the latest Militia Act (the Dick Act) transformed all state militia forces into units of the National Guard.[11] While this measure helped to professionalize and organize the U.S. militia, World War I created unforeseen challenges for state governors.

Within months of the U.S. entrance into World War I, the entire National Guard Force of more than 300,000 guardsmen was mobilized for active duty.[12] Deprived of their National Guard units and concerned about sabotage and espionage attempts on the mainland, governors began to call for the creation of home defense forces or organized state militias. The Home Defense Act of 1917 permitted the states to raise home defense forces in cases where the National Guard had been federalized.[13] By December 1917, eight months after the U.S. entered the war, 42 states had formed home guards or State Defense Forces with a total force strength of approximately 100,000 men.[14] After World War I, most SDF units were disbanded, but they were revived again during World War II,[15] growing to 150,000 members in 46 states and Puerto Rico.[16]

After World War II, militias again declined, and circumstances did not prompt creation of large State Defense Forces until late in the Cold War. In the 1950s, Congress again passed legislation supporting the formation of state militias.[17] However, the creation and expansion of SDFs throughout the United States remained slow until U.S.–Soviet relations worsened and détente collapsed in the late 1970s.[18]

At the same time that the Cold War was driving the expansion of State Defense Forces, the unpopularity of the Vietnam War led to a drive to end conscription. In 1969, President Richard Nixon established a commission to determine how best to abolish the draft. The Gates Commission concluded that the best alternative to conscription would be an all-volunteer force. However, creating and maintaining this all-volunteer force would rely heavily on the Total Force Concept, which called for complete integration of all Active and Reserve components. Further, the Total Force Concept’s heavy reliance on Reserve forces increased the likelihood that states would be left without their National Guard troops if they were deployed overseas.[19] This realization led many states to revive their SDFs in the 1980s. Ultimately, in 1983, Congress amended the National Defense Act to authorize all states to maintain permanent State Defense Forces.[20]

The Modern Militia: State Defense Forces

At present, 23 states and territories have SDFs, and their estimated force strength totaled 14,000 members as of 2005.[21] Authorized under federal statute Title 32 of the U.S. Code, SDFs are entirely under state control—unlike the National Guard— both in peace and otherwise.[22] Hence, while the National Guard is a dual-apportioned force that can be called to federal service under Title 10 or remain a state force under Title 32, State Defense Forces serve solely as Title 32 forces.

This status gives SDFs two important advantages. First, SDFs are continually stationed within their respective states and can be called up quickly and easily in times of need. Such a capability is particularly important when catastrophic disasters overwhelm local first responders and federal forces can take up to 72 hours to respond.[23] Second, SDFs are exempt from the restrictions of the Posse Comitatus Act, which prohibits federal military forces from engaging in domestic law enforcement activities within the United States.[24] While the Posse Comitatus Act has never proven a major obstacle to deploying federal forces for domestic emergency response, SDFs permit a state military response uninhibited by legal obstacles.[25]

Each SDF is under the control of its respective governor through the state’s military department.[26] The Adjutant General, the state’s senior military commander and a member of the governor’s cabinet, commands the SDF on behalf of the governor. As SDF commander, TAG is responsible for all training, equipment allocation, and decisions regarding the SDF’s strength, activity, and mission. The Adjutant General is also the commander of the state’s National Guard units and often directs state emergency response.[27] Through TAGs, SDFs can easily coordinate with other key components of the state emergency response.

Despite its recognition in federal statute, creation of a State Defense Force remains at the discretion of each state governor, and 28 states have chosen not to create such forces. Creation of SDFs has met resistance from TAGs and the National Guard Bureau due to concerns over turf, costs, and even arming SDF members.[28] However, such objections make little sense given that SDFs are entirely volunteer organizations and offer the states a vital, low-cost force multiplier. Members are not paid for training, only some states compensate them for active duty, and SDFs generally have little equipment.[29] For example, in 2002 alone, the Georgia State Guard reportedly saved the state of Georgia $1.5 million by providing 1,797 days of operational service to the state.[30] In all, the state-apportioned status, organizational structure, and low-cost burden of SDFs make them a vital and practical resource for the states.

State Defense Forces Post-9/11

Only months before 9/11, the U.S. Commission on National Security/21st Century (the Hart– Rudman Commission) suggested making homeland security the primary mission of the National Guard.[31] However, after September 11, 2001, National Guard deployments reached their highest level since the Korean War.[32] This was understandably troubling to many state leaders given that “[g]overnors have the greatest responsibility for managing consequences of attacks,” but “[t]hey have the fewest resources with which to do it…only the state police and the National Guard to provide for law and order.”[33] In recent years, the high levels of National Guard deployment largely removed this resource from numerous states. Even in the states where National Guard forces remain present, the Guard is maintaining only about 62 percent of its equipment on hand for the states because of overseas deployments.[34] This has left some governors with just state police units to help to maintain security and facilitate emergency response. In addition, an emergency, particularly a catastrophic disaster, could quickly overwhelm state police and other first responders. If National Guard forces are unavailable because they are deployed elsewhere, then the state could rely on its SDF, if it has one, to reinforce police and first responders. While largely underdeveloped and underresourced, SDFs can fill this gap in state homeland security capabilities, giving governors a valuable force multiplier.

In recent years, State Defense Forces have proven vital to homeland security and emergency response efforts. For example, after 9/11, the New York Guard, New York Naval Militia, and New Jersey Naval Militia were activated to assist in response measures, recovery efforts, and critical infrastructure security.[35] An estimated 2,274 SDF personnel participated in support of recovery efforts after Hurricane Katrina. SDF personnel were activated in at least eight states, including Texas, Maryland, Virginia, and Tennessee. They assisted directly with recovery efforts or stayed in their states to fill the roles of the state National Guard units that were deployed to assist in the recovery.[36] SDFs have also offered critical infrastructure protection. In Operation Noble Eagle, the homeland defense and civil support operation after 9/11, the Alaskan SDF aided in the efforts to protect the Alaska oil pipeline.[37]

History suggests that State Defense Forces may be most valuable in assisting the states in emergency response. In the event of a natural or man-made disaster, the first tier of response is state and local first responders. However, Hurricane Katrina exposed a vital difference between a “normal” disaster and a catastrophic disaster.[38] A catastrophic disaster quickly stresses the resources and capabilities of state and local responders. In such cases, the Title 32 National Guard troops can serve as the second tier of response. Yet given the National Guard’s high operational tempo over the past decade, the state Guard units may be unavailable. Likewise, the third tier, federal support in the form of reserve troops or FEMA assistance, may take up to 72 hours to mobilize and arrive at the scene of the disaster.[39] In contrast, State Defense Forces are by their nature located nearby. They also know the area and the resources at hand, giving them the potential to be a key element of emergency response for the states.

Besides being readily available and continually stationed within states, SDFs can carry out state homeland security missions without any major reorganization, which would be required if Congress were to implement the Hart–Rudman Commission’s recommendation to task the National Guard with this role. Furthermore, by assuming greater homeland security responsibility, SDFs would allow the National Guard to focus more on their Title 10 mission in the global war on terrorism. Moreover, unlike the dual-apportioned National Guard, State Defense Forces could focus more completely on homeland security than the National Guard.

Challenges Faced

State Defense Forces offer an important homeland security asset to many states, but several challenges have prevented these forces from reaching their full potential. Existing SDFs are often underfunded and undersupported, and some vulnerable states have not yet formed SDFs.

One of the greatest challenges to the creation and maintenance of State Defense Forces across the nation is ignorance among state and national security leaders. Many of these leaders are fundamentally unaware of the existence and capabilities of SDFs. This is largely a public relations nightmare for the SDFs because this general ignorance greatly impedes SDF leaders’ efforts to make their cause and merits known.

However, lack of awareness is not the SDFs’ only major public relations challenge. Often those who are aware of SDFs confuse them with private militia forces associated with radical organizations. State Defense Forces are the modern state militias. These forces are government-authorized, organized, professional militias, in sharp contrast to their radical “counterparts.”

SDFs are also limited by the restriction forbidding them from receiving in-kind support from the U.S. Department of Defense (DOD). While SDFs should remain funded solely by the states, in-kind support in the form of equipment and facilities would enhance SDF training and capabilities. However, because the DOD does not directly support SDFs, they cannot use federal resources, even surplus federal equipment and supplies. This is particularly challenging given that many SDFs work closely with their state National Guards. Nevertheless, SDFs are not permitted to use Guard facilities, trucks, or equipment, even when state National Guard troops are deployed elsewhere and SDFs are filling in during their absence.

The Current State of SDFs

The State Defense Forces offer the states a much needed force multiplier for homeland security operations and provide critical support as an auxiliary to the National Guard. While the potential roles of SDFs received heightened attention immediately after 9/11, that attention has faded in recent years.

To assess current SDF resources and capabilities, The Heritage Foundation sent a survey to the leaders of the 23 existing SDFs. Thirteen states—Alabama, Georgia, Indiana, Maryland, Michigan, Mississippi, New Mexico, Ohio, Oregon, Tennessee, Texas, Vermont, and Virginia—responded, providing a sampling of SDFs from across the United States. While the data received are limited and cannot draw a national picture of State Defense Forces, much can still be learned from the information gathered.

Mission. First, 11 of the 13 respondents indicated that their State Defense Forces have a defined mission under state law, but the identified missions varied greatly from state to state. Some forces focused more on a National Guard auxiliary mission. Other SDFs emphasize homeland security and civil support. The SDFs of Alabama, Georgia, Maryland, New Mexico, Oregon, Tennessee, Vermont, and Virginia identified their mission as acting largely to support the state National Guard. Other states defined their mission as providing communication backup and support, serving as a direct resource of the governor, operating search and rescue efforts, assisting in disaster response, and/or supporting emergency operating agencies and law enforcement as key components.

In emergency response, 10 of the 13 SDFs play a designated role in their state or local emergency operation centers. Several of the SDFs participate in planning disaster mitigation tactics, either at the direction of the state National Guard, the governor, and/or the Adjutant General, rather than following a predetermined plan for disaster mitigation. Others simply encourage greater training and education among their members. Virginia and Georgia have gone so far as to incorporate their SDFs into their state all-hazards or disaster mitigation plans.

Funding. Survey results also support the notion that State Defense Forces provide a cost-effective solution to the problem of maintaining sufficient homeland security manpower at the state level. Only four of the 13 responding SDFs indicated that they pay their members when on active duty. The rest rely solely on volunteer service. Nevertheless, while SDFs are considered a low-cost asset, they still require adequate state funding to ensure that they have the resources necessary to carry out their assigned missions. In this regard, only nine of the 13 SDFs indicated that they receive state-appropriated funds. Yet despite inadequate funding, 10 of the 13 respondents plan to expand their SDFs, clearly reflecting the importance of these forces.

Force Strength. In force strength and composition, 10 of the 13 SDFs had active force strengths above 100 personnel as of January 2010. Vermont, Maryland, Virginia, Tennessee, Indiana, Georgia, and Alabama reported forces of more than 200 members each, and Texas indicated an active force strength of 1,750—the largest of the SDFs.

Yet many high-risk states do not have SDFs. Judging from more than 50 years of actuarial data on natural disasters, certain states face a predictable, high risk of experiencing a natural disaster.[40] Further, an analysis of funding of cities through the Department of Homeland Security’s Urban Areas Security Initiative (UASI) program has identified the 37 “highest risk” jurisdictions as indicated by the federal government. Of these high-risk states, Arizona, Florida, Hawaii, Illinois, Missouri, North Carolina, and Pennsylvania lack SDFs.

Additionally, SDF personnel tend to be retired military personnel and other professionals. In all but one of the 13 SDFs, the average age of SDF personnel is 42 years or older. While some point to the higher age of SDF members as a disadvantage, in fact this is a great strength because it often reflects the members’ extensive experience. “In many cases it is not uncommon in a group of four or five SDF officers to find 100 plus years of military experience.”[41] According to survey results, responding SDFs primarily draw on such experience and professional backgrounds in offering medical, financial, and legal aid within the SDF and to the National Guard.

Only Texas, Virginia, and Indiana reported having an SDF naval or marine arm. The Texas, Virginia, and Vermont SDFs have air arms.

Seven of the 13 SDFs reported that they trained and served side by side with the state National Guard on a regular basis. All 13 respondents responded that they conducted regular assessments of their SDFs.

In all, the survey data show that too many SDFs receive insufficient recognition and support. Because they are predominantly volunteer organizations, their capabilities tend to be overlooked. Yet the states with SDFs should seek to expand the size, scope, and utility of their SDFs to provide themselves with a dynamic resource at a low cost. High-risk states without SDFs should seriously consider forming them. In addition to receiving greater federal recognition and in-kind support as well as state resources, SDFs should be given the opportunity to train side by side with their National Guard counterparts. SDFs will be a significantly greater asset to their states if they are more professionally trained and equipped.

Expanding the Role of SDFs in Homeland Security

In 2009, the State Defense Force Improvement Act (H.R. 206) was introduced in the U.S. House of Representatives. The bill would have amended Title 32 of the U.S. Code to enhance the nation’s SDFs.[42] The bill sought to clarify federal regulation of SDFs and to improve standardization and coordination with the DOD and the U.S. Department of Homeland Security (DHS). However, since its introduction, H.R. 206 has been on hold.

Expansion and enhancement of SDFs remains vital to homeland security. To further such efforts, state leaders, Congress, the DOD, and the DHS should:

• Promote the creation of SDFs in high-risk states. Only 23 states and territories have SDFs. The hesitation of many governors makes little sense given that SDFs offer a low-cost force multiplier for homeland security efforts. In particular, the high-risk states without SDFs would greatly benefit from creating SDFs for disaster recovery and response efforts.
• Create state standards and clarify federal regulation. Clarifying federal regulation would provide a clearer picture on SDFs’ powers and mission. At the same time, creating state standards for tactics, techniques, and organization based on the needs of each individual state would strengthen and enhance SDF performance. State standards should be communicated to the Council of Governors and the State Guard Association of the United States to facilitate sharing of best practices among the states.
• Incorporate SDFs into state and national emergency management plans. Expanding SDFs while clarifying regulation and setting standards is only the first step. The states, the DOD, and the DHS should ensure that SDFs are incorporated into existing and future emergency management plans and exercises. Including SDFs will help to ensure that all state and national actors in emergency response know their respective roles. Further, emergency management plans and exercises will provide SDFs with greater guidance on what is expected of them in the event of a man-made or natural disaster.
• Permit SDFs to train side by side with the National Guard. While SDFs and the National Guard differ in their overall missions, they share emergency management responsibilities in their respective states. In each state, they also have a common commander, the state’s Adjutant General. Having the SDFs train alongside the state National Guards would be an effective use of resources and provide the specialized training needed to strengthen the SDFs. State Defense Forces will be a significantly greater asset to their states if they are more professionally trained and equipped. Accordingly, Congress should amend the law to allow the National Guard to provide assistance to all auxiliary forces, including SDFs and Coast Guard Auxiliaries.[43] This assistance could include technical training, administrative support, and use of National Guard facilities and equipment.
• Encourage greater state support and resource allocation, and federal in-kind support. Four of the 13 SDFs do not receive state funding. While SDFs are a low-cost resource, the size and scope of their functionality is hindered by insufficient support and resources. To increase the quality and capability of SDFs, states need to provide adequate support and resources. Additionally, while SDFs should remain solely funded by the states, these forces would greatly benefit from receiving federal in-kind support from the Department of Defense. Allowing SDF members to train at military facilities and to receive excess federal equipment and supplies would greatly benefit the SDFs with minimal burden on the DOD.

The Future of the Modern Militia

There are clear historical, legal, and practical justifications for strengthening the State Defense Forces. Since the founding of this country, militias have played a vital role in fulfilling the constitutional duty of providing for the common defense. Today, as strictly state forces, SDFs continue to provide critical manpower at minimal cost.

Despite the undeniable benefits from having an effective SDF, many SDFs lack the resources and the operational standards needed to make them more effective. Some states at high risk of natural or man-made disasters have not even formed SDFs. The U.S. and its states can no longer afford to sideline these national security assets.

—James Jay Carafano, Ph.D., is Deputy Director of the Kathryn and Shelby Cullom Davis Institute for International Studies and Director of the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Davis Institute, at The Heritage Foundation. Jessica Zuckerman is a Research Assistant in the Allison Center.