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I've read that Oregon's governor called up the
unorganized militia (at least on a volunteer basis) at the beginning of
World War II for costal patrol, and I think I've
read that at least some East Coast governors did something similar.
I know that a number of states still have legal
authority for the governor to call up the unorganized militia under certain
extraordinary circumstances. California
Military & Veterans Code sec. 122 defines the militia as "all
able-bodied male
citizens and all other able-bodied males who have declared their intention to become citizens of the United States, who are between the ages of eighteen and forty-five, and who are residents of the State, and of such other persons as may upon their own application be enlisted or commissioned therein pursuant to the provisions of this division, subject, however, to such exemptions as now exist or may be hereafter created by the laws of the United States or of this State." Sec. 121 defines the unorganized militia as "all persons
liable to
service in the militia, but not members of the National Guard or the Naval Militia." Sec. 128 provides that, "The unorganized militia may be
called for active duty in case
of war, rebellion, insurrection, invasion, tumult, riot, breach of the peace, public calamity or catastrophe, or other emergency, or imminent danger thereof, or may be called forth for service under the Constitution and laws of the United States. Whenever it is necessary to call out any portion of the unorganized militia, the Governor may call for and accept as many volunteers as are required for such service, under regulations provided by this division." Sec. 129 decrees that any member of the
unorganized militia who does not show when
ordered to be "a deserter
and shall be dealt with as prescribed in the Articles of War of the United
States, or by this
division." Idaho laws are somewhat similar:
Idaho Code sections 46-102 and 46-103 provides the broad
definition of
militia that are in California
M&V Code 121 & 122. I.C. 46-104 provides for
mandatory registration of all militia
members. There doesn't seem to be anything equivalent
to Cal. M&V sec. 128 granting the Governor of
Idaho the same broad authority to order
the unorganized militia into service.
I would expect that most states have unorganized
militia provisions similar to those of
Idaho and California.
Could the President, either directly,
or by making a request to the governors, order up the
unorganized militia for service within
the United States, without Congress changing the
existing militia law? If so
ordered into service, would the President have authority to use
the unorganized militia for internal
security measures, such as guarding railroad lines,
sealing the border, inspecting each
and every cargo container entering the United States?
(I phrase the question thusly because
of the disputes concerning authority to send militias
overseas that came up in the aftermath
of the Spanish-American War.)
Yes, I'm thinking big thoughts at the
moment.
Clayton E. Cramer
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