The first American militia, which would evolve into today’s National Guard, was established in on December 13, 1636 by the Massachusetts Bay Colony, only six years after its founding in 1630. It was the first organized militia in colonial America.
The Massachusetts General Court based in Salem ordered universal military service for all able-bodied men in the colony between the ages of 16 and 60. All were required to serve in one of the colony’s three regiments – North, South, and East –when called upon to defend the American colonists. Militias were thereafter established in the other colonies for the general defense.
For the Founding Fathers, the militias, which grew out of the British posse comitatus in which the whole armed citizenry was called upon to enforce the law or defend the community, were the ultimate guardians of liberty against enemies of the new United States of America; or against the new central government should it grow over-expansive and oppressive of the people’s natural and constitutional rights.
Patrick Henry addressed these dual concerns in the ratifying convention of Virginia, the last state to ratify the Bill of Rights: “The militia is our ultimate safety. We can have no security without it. The great object is that every man be armed…Every one who is able may have a gun.” In that regard, as noted in the Heritage Guide to the Constitution [at 141]: Both the Pennsylvania and Vermont constitutions asserted that ‘the people have a right to bear arms for the defense of themselves and the state….’.”
The Founding Fathers, therefore, expressly provided in Article I, Section 8, Clause 15 that: “Congress shall have power to…to provide for calling forth the Militia to execute the laws of the union, suppress insurrections and repel invasions [.]
The framers further provided in Article 1, Section 8, Clause 16 that: Congress shall have the power 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 authority of training the militia according to the discipline prescribed by Congress [.]”
The Founding Fathers addressed the concern that transferring the authority for creation, maintenance, and the calling out of the militia from the States to the Federal Government would render the people unable to defend themselves against the central government itself should it be become oppressive, was addressed by establishing an express right of the people to bear arms in the Second Amendment to the Constitution, which provides: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”
As the militia evolved into the National Guard, there there has been a great deal of controversy and litigation over the scope of the federal government’s powers over the Guard, particularly as to the federal government ordering state National Guard units to overseas combat, not involving “invasion” or “insurrection” of the United States, particularly when the governor of a state, who is the titular head of the state’s National Guard, opposes such deployment.
The Supreme Court decided that the President of the U.S. had the exclusive authority to decide when the militia would be called out and deployed in the early case of Martin v. Mott (25 U.S. 19 [1827]). However, State governors retain the authority to call out the Guard in civil or military emergencies. In WWI, Congress effectively put the National Guard under federal control, including for overseas deployment, by legislating that the U.S. regular armed forces included National Guard. The Supreme Court upheld that Act in the case of Cox v. Wood(274 U.S. 3 [1918]).
In Oregon, the first militia was formed by a law of the “provisional government” adopted July 15, 1843. The militia is embodied in the Oregon Constitution and its evolution has been marked by a series of legislative acts through time, culminating in the militia’s reorganization into the Military Department of Oregon in 1961.
The citizen soldiers of the National Guard have served and sacrificed to defend the nation in every American war. At the same time, they have been called out to serve in domestic disasters and emergencies in times beyond counting.
Oregon National Guard units have been called up repeatedly to serve in the war against terrorism in Iraq and in Afghanistan. Today, some 200 members of the 1186th Military Police National Guard Unit are serving in Afghanistan. Another approximately 200 members of the Oregon Air National Guard are serving in Iraq.
As of Dec. 13, 2011, some one hundred and thirty-two (132) Oregonians serving in the National Guard have sacrificed their lives defending American freedom. Short biographies, and photos, of each them are available on the website of the Oregon National Guard.
The roots of the men and women serving in the National Guard run deep, all the way back to the those Americans who served in the first militia created on Dec. 13, 1636. Those serving in the National Guard today are true to that tradition of military service in which all who served gave some, and some gave all:
May God bless and keep each and all members of the National Guard who have served and are serving, especially those who gave their lives in this and all wars, so that we Americans might be free.
[Rees Lloyd is a longtime civil rights lawyer, a veteran, and a member of the Victoria Taft Blogforce.]
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