Do States Have The Authority To Use Militias To Protect Their Borders?

The Sierra Times ^ | 11 December 2002 | Robert Greenslade

[Spiff]

Do States Have The Authority To Use Militias
To Protect Their Borders from
Intrusions By Illegal Aliens?
By Robert Greenslade
Published 12. 11. 02 at 0:11 Sierra Time

A recent editorial by Chris Simcox, owner and editor of a weekly paper in Tombstone Arizona called the Tombstone Tumbleweed, has ignited a national debate. Simcox's editorial calls for armed citizen militias patrolling the border in an attempt to detour illegal aliens from crossing into the country. Irrespective of whether you agree with Simcox, his proposal raises an interesting question. Do the States have the authority to use militias to protect their borders from intrusions by illegal aliens?

The American people are constantly told that people illegally entering the country are "illegal immigrants" and the federal government has exclusive jurisdiction over all matters concerning immigration. This is not the case. In fact, the word immigration does not appear anywhere in the Constitution. The only general power granted to the federal government concerning aliens is the power to establish a uniform rule of naturalization. This provision was inserted because there was, in the words of James Madison, a "dissimilarity in the rules of naturalization" among the States. By vesting this power in the federal government, as opposed to the individual States, the Founders ensured that the qualifications for becoming a citizen would be uniform throughout the several States.

We are also told that the duty of securing the borders rests solely with the federal government. This is another misconception. The Constitution states that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion..." If aliens entering into a State from a foreign country constitute an "invasion," as some claim, then the federal government is constitutionally mandated by this provision to intervene and protect the State.

The federal government can fulfill this obligation in one of two ways. It can either use the military, or Congress can call forth the states militias to repel the invasion. [See Article 1, Section 8, Clause 15] Once Congress calls forth the militia, the President, as commander in chief, has the power to direct the movement of these forces. Thus, a President could constitutionally send the state militia to curb an "invasion" by illegal aliens.

Even though the power to repel an invasion is vested in the federal government, that power is not exclusive. The Constitution authorizes the States to engage in war when attacked or in eminent danger independent of the federal government. [See Article 1, Section 10, Clause 3] Since the Constitution precludes the States from maintaining a standing army, without the consent of Congress, the state force contemplated in this clause is the state militia. Thus, the States have the constitutional authority to use the militia to protect their borders.

It should be noted that the Constitution only grants the federal government limited powers concerning use of the State militias. Congress has no constitutional authority over these militias unless and until they are called into the actual service of the United States. When not in federal service, the States have exclusive authority over their militias.

This principle was discussed during the debates on the Constitution. In the Virginia Ratifying Convention of 1788, there was a lengthy debate concerning the militia.

"Mr. HENRY wished to know what authority the state governments had over the militia."

"Mr. MADISON answered, that the state governments might do what they thought proper with the militia, when they were not in the actual service of the United States."

"Mr. JOHN MARSHALL The state governments do not derive their powers from the general government... The state legislatures had the power to command and govern their militia before, and still have it, undeniably, unless there is something in this Constitution that takes it away... The truth is, that when power is given to the general legislature, if it was in the state legislatures before, both shall exercise it, unless there be an incompatibility in the exercise by one to that of the other, or negative words precluding the state governments from it. But there are no negative words here... To me it appears, then, unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they could have done before its adoption". All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to the Congress) are contained in the 10th section of the 1st article... But what excludes every possibility of doubt, is the last part of it "that no state shall engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.' When invaded, they can engage in war, as also when in imminent danger. This proves that the states can use the militia when they find it necessary."

Marshall, who would later become Chief Justice of the United States Supreme Court, went on to state:

"[T]he power of governing the militia was not vested in the states by implication, because, being possessed of it antecedent to the adoption of the government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been."

As stated by Marshall, since the States were not divested of the power to govern their militia, they have the authority to use their militia in any manner they see fit. If a State wants to send its militia to the border to stop intrusions by illegal aliens, it has the power to do so irrespective of the Constitution or the powers of the federal government.

Opponents of Mr. Simcox argue that Arizona could not actually send the militia to the border because the militia contemplated by the Founders has been replaced by the National Guard. They also claim the only militias in existence are those illegally formed by right wing white guys who watched too many war movies while cleaning their assault weapons. According to Title 26 of the Arizona Revised Statutes, section 121:

"The militia of the state of Arizona consists of all able bodied citizens of the state between the ages of eighteen and forty-five years and all residents of the state between such ages who have declared their intention to become citizens of the United States." [Exceptions omitted]

As shown by this section, the militia in Arizona is alive and well. In addition, most of all the critics of Mr. Simcox in the State of Arizona will be, at some point of their life, a member of the militia.

The Arizona Revised Statutes also show that the militia has not been replaced by the National Guard. In fact, the National Guard is a sub-component of the militia.

"The militia is divided into the national guard of Arizona, the state guard when organized, and the unorganized militia." [Section 122 (A)].
This section mentions the "unorganized militia." That term is defined in paragraph (E) of the same section:

"The unorganized militia consists of members of the militia not members of the national guard or state guard when organized."

Pursuant to this section, anyone who meets the qualifications of section 121 who is not a member of the national or state guard is a member of the unorganized militia. Thus, the average person walking the streets of Arizona, between the ages of 18 to 45, is, by law, a member of the unorganized militia of the State of Arizona.

Since everyone from the 23-year-old UPS driver to the 43-year-old 5th grade teacher in Cochise County is a member of the unorganized militia of Arizona, Simcox's idea for a militia made-up of so-called "ordinary citizens" is not as nutty as his critics claim.

In his editorial, Simcox directs the blame for a failed border policy on the federal government. Since the States have the concurrent power to protect their borders, this charge is only partially correct. Section 172 (A) of the Arizona Revised Statutes states:

"When the governor proclaims an emergency, or deems it necessary to protect lives or property, the governor may mobilize all or any part of the national guard or the unorganized militia into service of the state."

While it may not be politically correct, this section grants the governor of Arizona all the power she needs to send the militia to the border. The governor could proclaim an emergency based on the fact that illegals pose a potential health and safety risk to the people of Arizona. If you have ever watched a documentary on legal immigrants entering the country through Ellis Island, you will see that they were screened for any diseases. Thus, Arizona could employ this same standard under its police powers.

In addition, the governor could send the militia to the border to protect property. Other than federal land, where Arizona has no jurisdiction, all the property in southern Arizona belongs to private citizens or the State of Arizona. It is well documented that illegals are trespassing and vandalizing property during their trip north. Thus, the governor could mobilize the militia to protect property.

The only criticism that can be leveled against Simcox, in the author's opinion, is his apparent failure to petition the governor before recruiting citizens of Cochise County to go to the border. Since Arizona law authorizes the governor to send the militia to the border, a media campaign would show the people of Arizona that his idea has merit and is based on law.

In a November 20th newspaper story, the Arizona Republic wrote that Simcox's plan demonstrates a "disregard for law." If Simcox would organize a statewide campaign to petition Governor Jane Dee Hull to mobilize the militia, pursuant to Arizona law, and she fails to act, then who is "disregarding the law?"

© 2002 SierraTimes.com (unless otherwise noted)

[Spiff]

Several excellent points made here in this article. Arizona statute provides for the unorganized militia and defines who the members are. It is Jane Hull and soon to be Janet 'Reno' Napolitano who are disregarding the law in this matter.

[Spiff]

Ping

[Tailgunner Joe]

bump

[grania]

This article is better than most concerning the issue.

It's surreal that we are even discussing the right of citizens to defend the border and their property when their federal and state governments have a different agenda.

Duhhhhh.....we wouldn't have a country or a civilization if people couldn't defend what is theirs. It's time for "our" elected officials to wake up and do their job.

[Willie Green]

Arizona statute provides for the unorganized militia and defines who the members are.

Of course Arizona has the right to call forth the militia to defend itself from invasion.
The concept of a "militia" is really quite simple: it's similar to a "Neighborhood Watch".
When the need is evident, neighbors gather their individual arms and defend their community.
It's really pretty straightforward.
I imagine even the lowliest mayor of the state's smallest village has the right to call out the local militia, if the need arises. And if the people in the local militia think he's bonkers, they won't come. If they agree with him, they will.

[Spiff]

I imagine even the lowliest mayor of the state's smallest village has the right to call out the local militia, if the need arises. And if the people in the local militia think he's bonkers, they won't come. If they agree with him, they will.

Instead the malfeasant fools representing Cochise County and the mayors of the various towns and cities here have signed resolutions against any sort of militia activity. The are all pleading with the Federal Government to do something and are refusing to do anything themselves.

[Regulator]

That's great. Jihad Janet the Bull Dyke gobernador de Arizona is responsible for "calling forth the militia". That'll happen the day she decides she likes guys.

Look forward to Napolitano going out of her way to arrest Simcox. As the United States Attorney for Arizona, she hounded the "Vipers" into federal prison sentences when they were nothing but a bunch of clueless loudmouths; she did that while ignoring the 9/11 terrorists who were doing flight training in the state.

Napolitano is ethnophobic and xenocentric: she hates Americans and loves all foreign aliens. Mario Diaz, her campaign manager - and the guy who sits in the Arizona statehouse now, in charge of hiring - grew up in East L.A., the son of a Mexican mother and a Costa Rican father. Wanna guess where his sympathies lie?

The voters of Arizona blew it big time when they elected this nutcase. She is the most extremist governor of Arizona, and she will go out of her way to open the border. Guaranteed.

[B4Ranch]

with the Feds failing in their Constitutional duty to protect us, it's clearly time to draw upon that typical American trait of self-reliance. If there's a problem with no apparent solution from outside, we figure out a way to solve it ourselves.

And that, of course, is where the citizens' militia comes in.

Can You Change America? Part 2

[robertpaulsen]

"The Constitution authorizes the States to engage in war when attacked or..."

I hate to be picky, but Article 1, Section 10, Clause 3 states in part, "No State shall...engage in War, unless actually invaded, ..."

I wonder why the author used "attacked" instead of "invaded"? I can only guess.

Also, I'm getting fed up with this "illegal immigrant" PC. An immigrant is one who takes up permanent residence. Since some illegals don't, it would be correct to classify this group as "illegal aliens".

[Spiff]

I hate to be picky, but Article 1, Section 10, Clause 3 states in part, "No State shall...engage in War, unless actually invaded, ..." I wonder why the author used "attacked" instead of "invaded"? I can only guess.

Engaging in "war" when invaded would mean sending troops OVER the border to engage the enemy to stop the invasion. The state is "repeling invasion", not engaging in war, if the militia is deployed on the U.S. side of the border to stop the invasion. I think that is the distinction here.

[justshutupandtakeit]

This article is filled with misconceptions and falsehoods.

Illegal immigrants are not an invasion. Only by Clintonian definition could this be an invasion.

Article 1, Section 10 does not speak to allowing states to guard their borders or fight wars except against a REAL invasion or imminent REAL invasion. The imminent danger spoken of in the constitution was Indians on the warpath.

There are no militias which are not lead by State appointed Officers. Any group of streetwalkers does not constitute a Militia. Or do you consider the Crips a militia or the Bloods? Once the governor calls out the militia then any resident is a member but not before. If you recall American history the militia was trained and organized for action. No one believed it was self-declared or could operate outside of government declarations. Its military performance was bad enough even with training without it would be a joke.

Now I do believe the author has a good point when he says the governor could call out militia to protect property from the destruction of illegals. But ad hoc, untrained, and unorganized patrols would not be a good idea.

What state laws allow arrests of illegals? None that I know of. Thus, it appears that this activity would be extra-legal. Without the Rule of Law we descend into the jungle. That descent can be lead by states acting without legal authority.

[Travis McGee]

Ping.

[sonofatpatcher2]

Good News: It is my understanding the Gov of any state can call out its National Guard (or State Guard) to protect the state and its citizens. I assume this would include the borders, but the Bad News: the state would have to foot the bill on their own.

[JackelopeBreeder]

There's a joke here in Arizona. Since we don't do daylight savings time, instead of changing our clocks we change governors.

The Phoenix area is no longer Barry Goldwater country; it looks and feels like LA. Tucson has always been liberal. That's how you get goofs like McCain and Napolitano in office.

Cochise County is overwhelmingly conservative -- Republican and Independent. Most of our (very few) Democrats are more conservative than most Republicans on either coast.

And we here in Cochise County have had a gut full of this situation. I see no reason to wait for the butt-sniffing, vote-sucking political parasites to hold another round of interminable, do nothing hearings just so they can practice their sound bites and posture like monkeys for the media.

[El Gato]

The militia of the state of Arizona consists of all able bodied citizens of the state between the ages of eighteen and forty-five years

The Texas definition is the same, except the upper age limit is 60. I'm still a member of the Texas militia.

[Poohbah]

If aliens entering into a State from a foreign country constitute an "invasion," as some claim, then the federal government is constitutionally mandated by this provision to intervene and protect the State.

Problem: merely calling "illegal immigration" an invasion does not make it an actual invasion.

However, if it IS an invasion, then merely calling out the troops to man the border is a manifestly inadequate response. Once you opt for the logic and grammar of a warfighting response, you either fight an honest-to-God war, or you admit that you've lost and surrender.

So, if it's not an invasion, then put law enforcement to work arresting illegal immigrants and giving them a manifestly unpleasant life for a few years.

If it is an invasion, then fight a war with the invading nation, defeat that nation, occupy that nation, and then refashion their government into something more in keeping with our national interests.

Half measures do not interest me.

[Gritty]

BTTT

[junta]

bttt