by Glen Davis
I have been following the formation of the Arizona State Guard since I read that Governor Jan Brewer authorized its formation. I support it fully.
As I read the current submitted legislation—SB 1083—I understand the guard to be part State Defense Force and part law enforcement. However, it is under the umbrella of the militia.
Much of the legislation does comply with a Constitutional militia. On lengthier review, however, I find that it uses too much military and not enough militia. I sent my concerns in this area to the Governor and Senator Sylvia Allen.
One concern I have is the use of the Uniform Code of Military Justice and the Judge Advocate General of the National Guard. It could be that they are trying to avoid the government objections to this project to prevent a law suit similar to that of SB 1070.
It should be remembered that the Second Amendment was added for a very specific reason. 1st, the militia are NOT TROOPS in the sense of Article 1, Section 10, Clause 3 of the Constitution.
In Perpich v. DOD of 1990, Mr. Justice Stevens noted, “It is undisputed that Congress was acting pursuant to the Militia Clauses of the Constitution in passing the Dick Act. Moreover, the legislative history of that Act indicates that Congress contemplated that the services of the organized militia would ‘be rendered only upon the soil of the United States or of its Territories.’ H.R.Rep.No. 1094, 57th Cong., 1st Sess., 22 (1902).”
The Dick Act is the act that formed the National Guard. That act was amended in 1908 to include service within and without the territories of the United States. The National Guard takes a dual oath to the United States and the State. When they are “federalized,” they are relieved of duty in the National Guard and a part of the army. It is a complex system which basically eliminates their character as “militia.” The District court rejected the claim of Governor Perpich, “holding that the federal Guard was created pursuant to Congress’ Article I, § 8, power to raise and support armies.” They are a branch of the standing army.
Continue reading “On further consideration of SB 1083” »
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