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  #1  
Old 09-21-2009, 11:15 PM
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jinx jinx is offline
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Default National Guard in Kingman & Golden Valley, AZ

Kingman AZ Friday 18th 2009 around 4.45 pm Downtown on Andy Divine

National Guard perfoming "police" duty.

We support our soldiers and troops but we do not support
the unlawful deployement of our soldiers on US soil,
to "police" the Citizens...
A clear violation of the The Posse Comitatus Act

Section 1385 of Title 18, United States Code (USC), states:

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or 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."

Why and Who is permitting this "unamerican" precedent

and violation of the law in Kingman?
Are we living in a Police State City?
please watch this short video



Martial law in Mohave County AZ? Attack Choppers flying in circle over Golden Valley

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Old 09-22-2009, 03:17 AM
ilbegone ilbegone is offline
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http://www.answers.com/topic/posse-comitatus-act

Quote:
The PCA directly applies only to the army and air force, without mentioning the navy, the Marine Corps, the Coast Guard, or the National Guard. The National Guard is subject to Article I, section 8 of the Constitution, "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."

The National Guard is under state control until called into federal service, and is authorized to enforce the laws upon the request of a governor.

Because the Coast Guard has a law enforcement function and is not under the control of the Department of Defense, it is not subject to the PCA. Although the naval service is not mentioned in the PCA, Department of Defense regulations extend the PCA to the navy and Marine Corps.
The guys in the helicopters might have been burning up some required flight time and happened to spot some nudity. It happens, and some women like to be seen.


Quote:
Debate is ongoing as to whether the PCA should be repealed, moderated, or strengthened. Some argue that the act should be repealed because the federal government needs the full force of a flexible military to combat terrorism within the territorial United States. Others suggest the act is obsolete and should be repealed because numerous legislative exemptions have eroded the underlying policy and left the PCA a hollow shell.

Others insist that although there are many exceptions, the act is essential to bar misuse of the military by civilian authorities and to prevent a military dictatorship from assuming control of the nation through use of the armed forces. Still others argue that the act means only that federal military forces may not be commandeered by civilian authorities for use in active and direct law enforcement as a posse comitatus.

If local authorities need military personnel for specialized operations enforcing state laws, it is argued, they may call on the state governor for the assistance of the state National Guard.
What is the accepted legal definition of "special operations" concerning the National Guard?


Origin

Quote:
Posse comitatus means "the power or force of the county." The term refers to a doctrine of ancient English common law authorizing a sheriff to summon the assistance of the able-bodied male population above the age of 15. Appointed special deputies, these men would aid the sheriff in keeping the peace, executing writs, quelling riots, capturing felons, and otherwise enforcing the laws. Unlike the organized militia, a posse was usually gathered as needed. The practice continued in the United States, as the posse became a necessary American colonial and frontier tradition.
History


Quote:
Before 1878, it was common for the United States Army to enforce civilian laws. In frontier territories, the army was often the only source of law enforcement, supplemented by occasional U.S. Marshals. Over time, marshals and county sheriffs regularly called upon the army to assist in enforcing the laws. In 1854, for example, the U.S. attorney general wrote that the posse comitatus includes every male person above the age of 15, including the military:

Whatever may be their occupation, whether civilian or not, and including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a sheriff or marshal. The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus.

Soldiers were called upon to assist in catching fugitive slaves, as well as to guard polling places in federal elections. During the Reconstruction period that followed the Civil War, the army, initially under the command of General Ulysses S. Grant (who was later elected president), occupied the South.

By the time of the 1876 presidential election, Southern states were reconstituted. Many Southerners opposed both Grant, the outgoing Republican president, and Rutherford B. Hayes, the Republican presidential candidate. Federal troops actively assisted U.S. Marshals in patrolling and monitoring polling places in the South, claiming to be enforcing the federal election laws and preventing former Confederate officers from voting (as was the law at that time). Following bitter election contests in four Southern states, Hayes won the presidency by one electoral vote. Many felt that the federal troops, which supported Hayes and the Reconstructionist Republican candidates for Congress, intimidated Southerners who would have voted for Samuel Tilden, the Democratic candidate.

The resulting Democratic Congress was at odds with the Republican President Hayes. In response to what was seen as undue influence over the 1876 election, Congress outlawed the practice of posse comitatus by enacting the Posse Comitatus Act (PCA) (as 20 Stat. 152) as a rider to the Army Appropriation Act for 1880. The act stated: "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."

Congressional debates indicate that the PCA was intended to stop army troops from answering the call of a marshal to perform direct law enforcement duties and aid in execution of the law. Further legislative history indicates that the more immediate objective was to put an end to the use of federal troops to police elections in ex-Confederate states where civil power had been reestablished.

Significantly, President Hayes vetoed the act because it "makes a vital change in the election laws of the country, which is in no way connected to the use of the Army." Congress overrode the veto. Accordingly, the willful use of the army or air force [this has to be a later clarification, there was no air force in1880] as a posse comitatus or otherwise to execute the laws is a felony, unless the use is expressly authorized by the Constitution or an act of Congress. Congress overrode the veto. Accordingly, the willful use of the army or air force as a posse comitatus or otherwise to execute the laws is a felony, unless the use is expressly authorized by the Constitution or an act of Congress.

Last edited by ilbegone : 09-22-2009 at 08:34 AM.
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Old 09-22-2009, 04:50 AM
ilbegone ilbegone is offline
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Text of Posse Comitatus:

Quote:
1385. — *Use of Army and Air Force as posse comitatus.

From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC1385]


TITLE 18--CRIMES AND CRIMINAL PROCEDURE

PART I--CRIMES

CHAPTER 67--MILITARY AND NAVY

Sec. 1385. Use of Army and Air Force as posse comitatus

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.

(Added Aug. 10, 1956, ch. 1041, Sec. 18(a), 70A Stat. 626; amended Pub.
L. 86-70, Sec. 17(d), June 25, 1959, 73 Stat. 144; Pub. L. 103-322,
title XXXIII, Sec. 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

Historical and Revision Note
----------------------------------------------------------------------------------------------------------------
Revised Section Source (U.S. Code) Source (Statutes at Large)
----------------------------------------------------------------------------------------------------------------
1385.................................. 10:15. June 18, 1878, ch. 263, Sec. 15,
20 Stat. 152; Mar. 3, 1899, ch.
429, Sec. 363 (proviso); added
June 6, 1900, ch. 786, Sec. 29
(less last proviso), 31 Stat. 330.
----------------------------------------------------------------------------------------------------------------

This section is revised to conform to the style and terminology used
in title 18. It is not enacted as a part of title 10, United States
Code, since it is more properly allocated to title 18.


Amendments


1994--Pub. L. 103-322 substituted ``fined under this title'' for
``fined not more than $10,000''.
1959--Pub. L. 86-70 struck out provisions which made section
inapplicable in Alaska.

Section Referred to in Other Sections

This section is referred to in section 831 of this title; title 6
section 466.


*
*

Last edited by ilbegone : 09-22-2009 at 06:49 AM.
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Old 09-22-2009, 04:58 AM
ilbegone ilbegone is offline
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Legal Basis of the National Guard: http://www.arng.army.mil/aboutus/his...ftheGuard.aspx

Quote:
Legal Basis of the National Guard

The National Guard's charter is the Constitution of the United States. Article I, Section 8 of the U.S. Constitution contains a series of "militia clauses," vesting distinct authority and responsibilities in the federal government and the state governments. These clauses and follow-on legislation have sculpted the Guard as you see it today. Here are summaries that will help you understand how the Guard came to be what it is today.



Article I, Section 8; Clause 15 tells what the grounds are for calling up the Guard.

Clause 15 provides that the Congress has three constitutional grounds for calling up the militia -- "to execute the laws of the Union, suppress insurrection and repel invasions." All three standards appear to be applicable only to the Territory of the United States.

Article I, Section 8; Clause 16
Congress may "organize, arm and discipline" the militia; the States may "establish… appoint the officers of… and train the militia." Also, limits Congress' power during peacetime.


Clause 16 gives Congress 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." That same clause specifically reserves to the States the authority to establish a state-based militia, to appoint the officers and to train the militia according to the discipline prescribed by the Congress. As written, the clause seeks to limit federal power over State militias during peacetime.

The Armies Clause
"Congress may declare war, raise and support armies…"

The "armies clause" in Article I, Section 8, conferred on Congress the power to provide for the common defense of the United States, declare war, raise and support armies, and make rules for the "government and regulation of the land and naval forces." The Congress also was granted authority to make all laws "necessary and proper" for carrying out such powers. Under this provision, congressional power over the National Guard appears to be far-reaching.

Article I, Section 10
"No state may keep troops… without the consent of Congress."

Article I, Section 10 provides that no state, without the consent of the Congress, shall keep troops or ships of war in time of peace, or engage in war unless actually invaded. Be sure to see the Second Amendment for more about this.

The Second Amendment
"… a well-regulated militia [is] necessary to the security of a free State," and "…the right of the people to keep and bear arms shall not be infringed."

The Second Amendment qualified Article I, Section 10 by ensuring that the federal government could not disarm the state militias. One part of the Bill of Rights, insisted on by the anti-federalists, states, "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."

Article IV, Section 4 guarantees every State in the Union a republican form of government.

Article IV, Section 4 provides that the federal government " shall guarantee to every State in this Union a republican form of government," and shall protect each of the States against invasion. At State request, the federal government was to protect the States "against domestic violence." Through these provisions, the potential for both cooperative Federalism and for tension between the "militia" and the "army" clauses was built into the constitution.

Article II, Section 2 makes the president Commander-in-Chief of all forces, including the militia when federalized.

Article II, Section 2 places all forces, including the militia when in federal service, under the control of the executive branch by making the president Commander-in-Chief.

Article I, Section 8 gives Congress the ultimate control through its sole power to collect taxes to pay the military, to declare war and employ the militia for security.

Article I, Section 8 gave the ultimate control to the Congress, by granting it the sole power to collect taxes to pay for the military, to declare war and to employ the militia for common purposes of internal security. Existing State militias could be maintained, although troops could be called into national service. But the founding fathers moderated that authority by leaving the individual States with the explicit responsibility for appointing officers and for supervising peacetime training of the citizen-soldiers.

The Militia Act of 1792 clarified the role of the militia; required all able men to serve, be armed, and be equipped at their own expense; also, standardized unit structure.

The Militia Act of 1792 subsequently expanded federal policy and clarified the role of the militia. It required all able bodied men aged 18 to 45 to serve, to be armed, to be equipped at their own expense and to participate in annual musters. The 1792 act established the idea of organizing these militia forces into standard divisions, brigades, regiments, battalions and companies, as directed by the State legislatures.
Continued below

Last edited by ilbegone : 09-22-2009 at 08:39 AM.
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Old 09-22-2009, 05:02 AM
ilbegone ilbegone is offline
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Legal basis of the National Guard continued:

Quote:
The militia concept put to the test in the War of 1812
For the 111 years that the Militia Act of 1792 remained in effect, it defined the position of the militia in relation to the federal government. The War of 1812 tested this unique America defense establishment. To fight the War of 1812, the republic formed a small regular military and trained it to protect the frontiers and coastlines. Although it performed poorly in the offensive against Canada, the small force of regulars backed by a well-armed militia, accomplished its defensive mission well. Generals like Andrew Jackson proved, just as they had in the Revolution, that regulars and militia could be effective when employed as a team.

Posse Comitatus
Congress' suspension of southern states' right to organize a militia resulted in Posse Comitatus, a limiting of the president's use of military forces in peacetime.


In 1867, the Congress suspended the southern states' right to organize their militias until a state was firmly under the control of an acceptable government. The U.S. Army was used to enforce martial law in the South during Reconstruction. Expansion of the military's role in domestic life, however, did not occur without debate or response. Reaction to the use of the Army in suppressing labor unrest in the North and guarding polls in the South during the 1876 election led to congressional enactment of the Posse Comitatus Act in 1878. Designed to limit the president's use of military forces in peacetime, this statute provided that: "...it shall not be lawful to employ any part of the Army of the United States... for the purpose of executing the laws, except on such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by any act of Congress..."

The States revise the military codes - 1881 to 1892
Concern over the militia's new domestic role also led the States to reexamine their need for a well-equipped and trained militia, and between 1881 and 1892, every state revised the military code to provide for an organized force. Most changed the name of their militias to the National Guard, following New York's example.


The Dick Act, 1903 affirmed the National Guard as the primary organized reserve force.

Between 1903 and the 1920's, legislation was enacted that strengthened the Army National Guard as a component of the national defense force. The Dick Act of 1903 replaced the 1792 Militia Act and affirmed the National Guard as the Army's primary organized reserve.

The National Defense Act, 1916 guaranteed the State militias as the primary reserve force; gave the President the authority to mobilize the Guard during war or national emergency; made use of the term "National Guard" mandatory; authorized drill pay for the first time.

The National Defense Act of 1916 further expanded the Guard's role and guaranteed the State militias' status as the Army's primary reserve force. Furthermore, the law mandated use of the term "National Guard" for that force. Moreover, the President was given authority, in case of war or national emergency, to mobilize the National Guard for the duration of the emergency. The number of yearly drills increased from 24 to 48 and annual training from five to 15 days. Drill pay was authorized for the first time.

The National Defense Act Amendments, 1920 put the National Guard on the general staff; reorganized the divisions.

The National Defense Act Amendments of 1920 established that the chief of the Militia Bureau (later the National Guard Bureau) would be a National Guard officer, that National Guard officers would be assigned to the general staff and that the divisions, as used by the Guard in World War I, would be reorganized.

The National Guard Mobilization Act, 1933 made the National Guard a component of the Army.

The National Guard Mobilization Act of 1933 made the National Guard of the United States a component of the Army at all times, which could be ordered into active federal service by the President whenever Congress declared a national emergency.

The Total Force Policy, 1973 requires all active and reserve military organizations be treated as a single integrated force; reinforced the original intent of the founding fathers (a small standing army complemented by citizen-soldiers.)

Following the experience of fighting an unpopular war in Vietnam, the 1973 Total Force Policy was designed to involve a large portion of the American public by mobilizing the National Guard from its thousands of locations throughout the United States when needed. The Total Force Policy required that all active and reserve military organizations of the United States be treated as a single integrated force. A related benefit of this approach is to permit elected officials to have a better sense of public support or opposition to any major military operation. This policy echoes the original intentions of the founding fathers for a small standing army complemented by citizen-soldiers.

Last edited by ilbegone : 09-22-2009 at 07:58 AM.
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  #6  
Old 09-22-2009, 06:40 AM
ilbegone ilbegone is offline
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PDF National Guard fact sheet with section on State Mission

Governor can activate to State Active Duty, Posse Comitatus Act doesn't apply.

Under state law, support provides protection to life and property, may be mobilized for peace enforcement missions, counter drug missions, support to civil authorities.

http://www.ng.mil/media/factsheets/A...eet_May_06.pdf

---------------------


PDF Memorandum of Understanding Between The Arizona National Guard and The Department of The Interior

Has section on Arrests, Searches, Seizures, Chain of Custody

Section on weapons

Normally an unarmed support to law enforcement, not authorized to make arrests, etc.

Elevated situation with orders from appropriate authority allow weapons and ammunition.

http://amd.nbc.gov/director/mou/Nati...rd/Arizona.pdf

-----------------------


Major General Peter Alward speech to House Homeland Security Committee, PDF

Cites support to Law Enforcement In Denver Colorado and various other unnamed local law enforcement agencies. Mostly counter drug support. Cites NG personnel along border supporting federal, state, and local law enforcement agencies with mostly counter drug missions which mostly involve aerial and ground observation, communications, case analysis, and engineering.

Cites support of Border Patrol with road building and maintenance, transportation, medical / dental.

Capable of other assistance to civil authority based on situationsl need.

http://homeland.house.gov/SiteDocume...1106-76227.pdf

----------------------


Arizona Army National Guard http://www.absoluteastronomy.com/top...d#encyclopedia

Quote:
Has dual Federal and state missions. State Missions range from from limited actions during non-emergency situations to full scale law enforcement of martial law when local law enforcement officials can no longer maintain civil control.
Quote:
The Governor may call individuals or units of the Arizona National Guard into state service during emergencies or to assist in special situations which lend themselves to use of the National Guard. The state mission assigned to the National Guard is "To provide trained and disciplined forces for domestic emergencies or as otherwise provided by state law."
Quote:
Unlike Army Reserve members, National Guard members cannot be mobilized individually (except through voluntary transfers and Temporary Duty Assignments , or TDY), but only as part of their respective units. However, there has been a significant amount of individual activations to support military operations; the legality of this policy is a major issue within the National Guard.

Last edited by ilbegone : 09-22-2009 at 08:44 AM.
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Old 09-22-2009, 07:06 AM
ilbegone ilbegone is offline
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U.S. Constitution - Article 1 Section 8

Article 1 - The Legislative Branch
Section 8 - Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

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;


To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
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Old 09-22-2009, 07:09 AM
ilbegone ilbegone is offline
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It seems the National Guard is the Constitutional militia, subject to dual missions to both state and federal jurisdiction.

The Governor can call out the guard on federal money, but there seems to have been some dispute over federal funding in the past.

Posse Comitatus applies for federal missions, Posse Comitatus does not apply for state missions.

Militia Act of 1792: http://www.constitution.org/mil/mil_act_1792.htm

It is my belief that state mobilization of the National Guard has been generally unarmed since Kent State. http://history1900s.about.com/od/1970s/qt/kentstate.htm

Quote:
Katrina: Governor Orders Troops to Shoot and Kill Looters
http://www.outsidethebeltway.com/arc..._troops_will_/

Despair is also affecting those in New Orleans charged with protecting the city, said State Police Superintendent Col. H.L. Whitehorn. Some New Orleans police officers have resigned rather than face the violence in the city. “It’s my understanding those who have resigned said they have lost everything and it’s not worth being shot at and losing their lives,” Whitehorn said. Whitehorn said he did not know the specific number of police officers who have quit their jobs.

******

Under riot conditions, shooting armed perpetrators in the midst of violence may be a necessary evil. Shooting unarmed television thieves, though, is hard to justify. And, of course, without benefit of a trial we may wind up shooting people “stealing” their own possessions.
Quote:
While on patrol in a mostly vacant part of New Orleans about 1 a.m. on March 9, National Guard troops spotted Terry Burton riding a bicycle and carrying a hacksaw. A National Guard spokesman later told reporters that the guardsmen followed the 53-year-old Burton, who National Public Radio described as "mentally ill", because there had been many thefts of copper pipe in the area. When the soldiers approached Burton he reportedly threatened them with a knife, and then threw broken glass at them, injuring a sergeant.

The guardsmen then followed Burton into an empty house, where he pointed what appeared to be a rifle at them. After one soldier shot Burton several times, killing him at the scene, they learned that he was only holding a BB gun.
The guardsman was removed from patrol duty, the spokesman said.
http://www.inclusiondaily.com/archiv...7lakatrina.htm

Not taking any sides -

Legal discussion concerning right to bear arms, some legal confusion as to what second amendment really means concerning armed state government militia under ultimate federal control vs individual right to posses:

http://www.gpoaccess.gov/constitution/html/amdt2.html

Last edited by ilbegone : 09-22-2009 at 02:25 PM.
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Old 09-22-2009, 08:11 AM
ilbegone ilbegone is offline
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http://www.answers.com/topic/united-...national-guard

Quote:
The guard's original units were organized in December 1636 as the North, South, and East Regiments of the Massachusetts Bay Colony Artillery.
Quote:
From the Militia Act of 1792 to the Dick Act of 1903, the United States lacked a uniformly enforced militia policy. The modern National Guard began with the Dick Act, which divided the militia into the organized militia, or National Guard, and the unorganized militia. Units were to conform to the standards of the regular army and receive increased state and federal aid, but they were separate from the army. A 1908 amendment authorized the president to send guard units outside the country. The National Defense Act of 1916 made the guard a component of the army while in federal service and provided for regular training. The National Defense Act of 1920 established a three-component army: the regular army, the National Guard, and the organized reserves. Although the guard was considered the first-line reserve, it still was not a full-time component of the army. An amendment in 1933 created the National Guard of the United States (NGUS) as a full-time reserve component of the army. Although the composition of this force was identical to that of the state National Guard, it was subject to a call to active duty by the president without his having to go through the governor. In 1940, just prior to the outbreak of World War II, nineteen guard divisions along with their air "observation squadrons" were activated. They served in all theaters of war, garnering campaign credits and honors. After the cessation of hostilities in 1945, the War Department established the guard as a twenty-seven-division force, available for immediate service in the event of war. Under terms of the Reserve Forces Act of 1955, the army became responsible for training guard recruits for at least six months.

Last edited by ilbegone : 09-22-2009 at 08:15 AM.
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Old 09-22-2009, 08:26 AM
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Quote:
to the Dick Act of 1903
Thank god that names already been taken. I shudder to to think about any new legislation initiated in the San Francisco area should it have been available
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