Always Ready, Always There, Yet Still Misunderstood: Debunking Myths About the National Guard

While the National Guard is at the forefront of the nation’s emergency response and the President’s twitter feed, many are unaware what the National Guard actually is and it’s dual military and domestic roles. This has lead to many myths about the National Guard, this article aims to debunk the various myths about the National Guard and to inform readers about the legal basis and distinctions along with the sacrifices and service of the National Guard.

Photo: North Carolina Army National Guard photo by Spc. Hannah Tarkelly, 382nd Public Affairs Detachment. (Pictured here Pvt. 1st Class Angel Garcia (left), assigned to the 1-130th Attack Reconnaissance Battalion, and North Carolina Army National Guard Pvt. 1st Class Nathan Kurkowski, of the 2-130th Airfield Operations Battalion, work with Team Rubicon, a veteran disaster relief service organization, to distribute food to the local community at the Second Harvest Food Bank Southeast in Fayetteville, N.C., May 15, 2020.)

Since the first muster in Salem, Massachusetts on December 13, 1636, the National Guard has lived up to its motto of being always ready and always there for any and all emergencies and disasters.  The year 2020 is no exception to that.  More National Guard service members have been activated this year than ever before, with nearly 84,0000 National Guard members activated across the country.  The number of activated National Guard service members continues to surpass the previous record high domestic response of 51,000 that were activated in response to Hurricane Katrina.  In addition, nearly 2,500 National Guard members continue to be deployed along the Southwest Mexican border.  There are also “more than 28,000 Guard members deployed overseas.”

The large number of activated National Guard units has kept the National Guard in the news cycle this year due to being called upon to respond to COVID-19, hurricanes, nationwide protests, wildfires, and even assisting at elections polls.  The President has even fired off multiple tweets on twitter politicizing the activation of the National Guard in response to various protests across the country.  The President also recently awarded Distinguished Flying Crosses to members of the California National Guard for rescuing nearly 300 people from the raging Creek Wildfire.

While the National Guard is at the forefront of the nation’s emergency response and the President’s twitter feed, many are unaware what the National Guard actually is and it’s dual military and domestic roles.  This lack of understanding has led to quite a few myths out there about the National Guard.  This article aims to debunk the various myths about the National Guard and to inform readers about the legal basis and distinctions along with the sacrifice and service of the National Guard.

History: Serving Since 1565

The National Guard is the oldest component of the United States Military.  The Massachusetts Bay Colony General Court ordered all able-bodied men between the ages of 16 and 60 to join the colony’s militia on December 13, 1636. This inaugural and official declaration of a military force on American soil on December 13, 1636,  is the recognized birthdate of the modern National Guard “based upon the Department of Defense’s practice of recognizing the dates of initial authorizing legislation for organized units as the birthdates.”

While militias existed in colonial America since the Jamestown colony in 1607, the Massachusetts Colony General Court was the first official governmental body in the colonies to formally establish a colony-wide militia.  However, the Florida National Guard actually traces its roots to before 1607, all the way back to September 16, 1565, when Spanish conquistador and founder of St. Augustine, Pedro Menendez de Aviles, called upon all able-bodied male settlers as part of a militia to defend the settlement.

Legal Basis: Successors of the Militias Outlined in the Constitution

As Professor Anthony Ghiotto of Campbell University Norman Adrian Wiggins School of Law writes in his most recent article, “National Guard units are generally understood to be the successors of the “militias” referred to in the Constitution.” The militia clauses of the Constitution provide that Congress shall have the power:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.[1] 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.[2]

The Supreme Court in Maryland ex rel. Levin v. United States, 381 U.S. 41, 46 (1965), held that the “National Guard is the modern Militia reserved to the States by Art. I, § 8, cl. 15, 16, of the Constitution.”[3]

Congress has since ensured that the National Guard maintains its status as the modern militia. The Militia Act of May 8, 1792, permitted militia units organized before the May 8, 1792, to retain their “customary privileges.”  This provision was perpetuated by the Militia Act of 1903, the National Defense Act of 1916, and by subsequent law.[4]  The organized militia officially became the National Guard in 1903 with the Militia Act of 1903, a.k.a. The Dick Act.  Frederick Bernays Wiener points out that “[e]ssentially, the Dick Act provided for an Organized Militia, to be known as the National Guard, which should conform to the Regular Army organization, be equipped through federal funds, and be trained by Regular Army instructors.”[5]

Today the National Guard is federally governed under Titles 10 and 32 of the United States Code. Each state also has its own statutes governing the National Guard, such as Chapter 127A of the North Carolina General Statutes.

Common Myth: National Guard soldiers and airmen don’t have the same training as an active-duty service member.

This is incorrect, at least as it pertains to service members’ initial military training. Service members attend the same basic training and military occupation specialty training regardless of whether they join Active Duty, National Guard, or the Reserves. There is no separate basic training for National Guard or Reserve service members.  The only real difference between active duty and national guard initial military training is that once completed, active-duty members get assigned to an active duty base while National Guard troops go home to their assigned state unit(s).

Common Myth: National Guard troops don’t deploy to combat zones.

Nothing could be further from the truth.  National Guard and Reserve units made up about 45 percent of the total force sent to Iraq and Afghanistan since 2001.  National Guard and Reserve troops accounted for roughly 18.4 percent of the total casualties since 2001.  During the height of the war in Iraq, in 2005, “more than half of the combat forces in Iraq were members of the National Guard.”

Following 9/11, the National Guard has, again and again, deployed to Afghanistan, Iraq, Kuwait, Syria, and other nations in the ongoing war on terrorism.  National Guard troops actually made up a bulk of American forces during the 2007 troop surge in the Iraq War.

Just recently, the North Carolina Army National Guard’s 30th Brigade Combat Team returned from a deployment to Kuwait.  While in theater in Kuwait, the 30th Brigade played a pivotal role in the ongoing fight against ISIS.  In October 2019, during the international crisis following Turkey’s invasion of Syria, North and South Carolina Army National Guard units rolled their Bradly fighting vehicles into eastern Syria where they served as the only American forces standing between ISIS, Russian, and Turkish forces that threatened the essential oil fields of the Syrian town of Deir al-Zour.

Common Myth: National Guard troops are just ‘weekend warriors’

Generally, National Guard service members are required at a minimum to attend monthly drills and annual training.  The monthly drill often occurs at a local National Guard Armory, National Guard training facility, or active-duty installations.  Drill traditionally is two-days, usually on a Saturday and Sunday.  However, it is not abnormal to have drill scheduled during the week and for more than two-days (especially four-day drills, occurring Thursday – Sunday).

The annual training (AT) at a minimum consists of two weeks of training.  Generally, it is scheduled during the summer months.  It usually takes place at National Guard training facilities,  active-duty installations, and even overseas embedded with multi-national forces, such as Albania, France, Germany, Italy, Kosovo, Kuwait, Moldova, Poland, Ukraine, United Kingdom, etc.  For example, the Wisconsin Army National Guard’s 829th Engineer Company has served in seven countries at 21 bases ranging from Afghanistan and Iraq to Syria, Jordan, Saudi Arabia, and Kuwait since deploying last October. The soldiers of Wisconsin’s 829th Engineer Company have improvised, adapted, and overcome being deployed during the COVID-19 epidemic, even constructing a hospital for COVID response in Afghanistan.

In addition to sustaining a constant deployment schedule on top of the mandatory training, many National Guard service members serve full-time.  These National Guard troops are employed full-time in the military, just like active duty service personnel.  This is what is referred to as Active Guard Reserve (AGR).  As an AGR service member, one receives the same pay and benefits as an active duty member, they just are not stationed at an active duty base.  Rather, AGR service members are assigned to various National Guard and Reserve armories and stations within their local communities.  AGR soldiers and airmen are required to attend all drills and annual training.  In many cases, AGR personnel are the ones tasked with planning and coordinating all the drills and annual training.  However, while they must attend drill after working all week long, they do not receive payment for the drill duty because they are getting paid on active-duty status.

Common Myth: The National Guard and the Reserves are one in the same.

This is not true.  The Guard and Reserves are similar when it comes to the training schedule.  Both require a minimum training of monthly drills and two-weeks of annual training.  That is where the similarities end.

The National Guard takes orders from the state Governor first and foremost.  Each state governor is the Commander-In-Chief of the National Guard forces within its state.  The Guard also takes orders from the federal government.  Thus, the Guard has two commanders-in-chief, both state governors and the President.  While reservists only have one commander-in-chief, the President.

Professor Anthony Ghiotto, a former active duty Air Force officer who continues to serve in the Air National Guard,  explains the National Guard structure well in his most recent article published in the Harvard Law School National Security Journal.  Professor Ghiotto writes  that “Guard members generally wear three hats—a civilian hat, a state militia hat, and an army hat—only one of which is worn at any particular time.’”[6] There are distinctions between each hat.  Professor Ghiotto explains that National Guard units “wear their ‘army hat’ only when called to federal service, at which point they fall under the authority of the federal military and ultimately the President.  In contrast, the ‘state militia hat’ is worn when performing state service under the authority of the state governor.”  The ‘civilian hat’ is worn when National Guard service members are not on duty–i.e., not on drill or federal pay status.

Generally, the ‘state militia’ hat is the hat that National Guard service members are wearing during regular monthly drills and annual training. Outside of drills and annual training, the distinction between the National Guard ‘state militia hat’ and ‘army hat’ comes down to which commander-in-chief has ordered them into service.  Under the laws of all of the states, the Governor is commander-in-chief when the Guard is not in federal service and may call out the Guard to deal with internal disorders, such as floods and riots. When not in national service, the Guard is trained by the state.  However, detailed federal regulations govern the kinds of training and equipment to be employed.

Whether National Guard troops are mobilized pursuant to Title 10 and 32 of the United States Code is critical to determining which commander-in-chief is in charge and, thus, what hat is being worn. This difference is summarized in a Military Times article here.

The President may activate National Guard troops to report for federal active-duty military service pursuant to Title 10 U.S.C.  This is commonly what is referred to as ‘Title 10 Orders’.  Title 10 Orders are used to activate National Guard troops for national defense, such as overseas deployments.  All pay and benefits under Title 10 Orders are paid by the federal government. When mobilized with Title 10 orders National Guard troops wear the ‘army hat.’

State governors can and do activate and mobilize National Guard troops to active-duty status pursuant to Title 32.  Activation under Title 32 authority means that National Guard troops are on active-duty status but under command and authority of the state governor.  Title 32 Orders can be authorized and directed by the President, as has been done with a large majority of deployed National Guard troops responding to COVID-19 with 86% percent of National Guard troops being activated under Title 32 orders.  Title 32 Orders can also be used solely by state governors to order the National Guard to active-duty status.  Title 32 Orders normally are to activate the National Guard for natural disaster response efforts.  When mobilized pursuant to Title 32 orders, troops are wearing the ‘state militia hat’.

While the National Guard wears many hats, sometimes more than one at a time, the Reserves only has two hats: a federal hat and a civilian hat.  Essentially the National Guard is like Cam Newton and his collection of hats, while the Reserves is like the fictional western outlaw Billy Two Hats.  The federal hat of the Reserves comes in many colors: Air Force blue and white, Army black and gold, Coast Guard ocean blue, Marine Corps dress blue, or Navy blue and gold.  Unlike the Reserves, the National Guard only consists of two military branches: the Air Force and the Army.  There are no Coast Guard, Marines, or Navy service members in the National Guard.

Pursuant to federal law, all fifty states (and territories, Puerto Rico, the Canal Zone, and the District of Columbia) maintain National Guards.  The Reserves is entirely a federal entity, because “a reservist at weekend drill or weeknight training is functioning under the direct control and authority of the federal government, that he is being trained for federal service and that he is being paid by the federal government.[7]

Common  Myth: Deploying National Guard to Protests Violates the Posse Comitatus Act

The Posse Comitatus Act (PCA) statute is located under 18 U.S.C.  § 1385.  The language of the PCA states the following: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

Recent protests across the nation have led to the National Guard being activated to guard their local city streets.  This has sparked much debate about how the military is and should be utilized if at all in these types of domestic situations occurring on Main Streets across America.  Many activists and commentators have argued that the presence of these National Guard troops violates the PCA.  This is not true.

While National Guard troops wear the same uniform and appear identical to active-duty troops, they are not wearing the active-duty ‘army hat’ when responding to protests.  Deploying active-duty troops, i.e. troops wearing the ‘army hat’, for law enforcement purposes violates the PCA.  Meanwhile, deploying the National Guard wearing the ‘militia hat’ to respond to domestic incidents does not violate the PCA.  This is due to the distinctions between National Guard troops and federal active-duty troops explained previously.  As Professor Ghiotto explains in his article, when National Guard troops are responding to domestic events, they are wearing the ‘militia hat’, not the ‘army hat’, and, thus, do not violate the PCA.

Conclusion

Overall the National Guard is responsible for a wide range of operations, both foreign and domestic.  The National Guard lives up to its motto of “Always Ready, Always There” as its duties have ranged from responding to COVID-19 relief efforts, providing security at protests, and conducting combat operations in Afghanistan.  More National Guard troops have been activated in 2020 than ever before.  Thus, it certainly is about time people started understanding the National Guard.  Hopefully, this article will provide a better understanding and debunk some of the myths out there about the National Guard.

[1] U.S. CONST. art. I, § 8, cl. 15.

[2] U.S. CONST. art. I, § 8, cl. 16.

[3] Maryland ex rel. Levin v. United States, 381 U.S. 41, 46 (1965).

[4] Militia Act of May 8, 1792, ch. 33, § 1, 1 Stat. 271 (repealed by Act of Feb. 28, 1795, ch.39, 1 Stat. 424); Militia Act  of Jan. 21, 1903, ch. 196, § 1, 32 Stat. 775.

[5] Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181, 195 (1940).

[6] Perpich v. U.S. Dep’t of Def., 496 U.S. 334, 348 (1990).

[7] Major Clarence I. Meeks III, USMC, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act, 70 Mil. L. Rev. 83, 96 (1975).

Wyatt Bland
About Wyatt Bland (6 Articles)
Wyatt is a third-year student at the Campbell University School of Law and currently serves as the Editor-in-Chief of the Campbell Law Observer. Originally from Goldsboro, North Carolina, Wyatt enlisted in the North Carolina Army National Guard as a Supply Specialist while in high school. He went on to graduate at the top of his class from the U.S. Army Quartermaster School. Despite being a first-generation college student, Wyatt earned not only one, but two Bachelor’s degrees in both Political Science and History at East Carolina University. Before starting law school, Wyatt’s passion for public service grew as he worked full-time at North Carolina's 3rd Congressional District Office for the late Congressman Walter B. Jones. Wyatt is active on campus and currently serves as the Managing Partner for the Veterans Pro Bono Project, a 3rd Year Student Bar Association Representative, a North Carolina Bar Association Student Representative, Community Outreach Chair for the National Security and Military Law Student Association, and a Student Ambassador. Wyatt has previously served Campbell Law as the Vice President and 1st Year Representative of the Student Bar Association. Additionally, he is an active participant on Campbell Law’s softball team as well as in the Wake County Bar Association’s Basketball league. During the summer after his 1L year, Wyatt externed with the Office of the District Attorney for New Hanover and Pender Counties. During the Fall semester of his 2nd year, Wyatt served as a Legal Extern in the Office of the Staff Judge Advocate for the U.S. Air Force’s 4th Fighter Wing at Seymour Johnson Air Force Base. This past summer Wyatt prosecuted cases under the Third Year Practice Rule with the Wake County District Attorney’s Office, completing 15 trials. Wyatt currently is interning with the United States Attorney's Office for the Eastern District of North Carolina. Wyatt's interests are in criminal law as well as national security law.