Caught with the Guard down

Chapter 48.--MILITIA, DEFENSE AND PUBLIC SAFETY

Article 2.--KANSAS ARMY AND AIR NATIONAL GUARD

48-241. Ordering militia into active service. The commander in chief shall have power to order into the active service of the state any or all of the units of the national guard, any active or retired member of the national guard or other militia or military organizations of the state that the commander in chief deems necessary in case of: (1) A request by civil authorities to support federal or state law enforcement agencies in counter-drug and drug interdiction operations when such request is approved by the commander in chief; (2) a need for personnel to support the adjutant general's department during a local, state or federal disaster or other mission; or (3) breaches of the peace, tumult, riot, resistance to process in this state, public disaster or imminent danger thereof. All members of the national guard or other militia or military organization who are ordered out by proper authority for such duty shall not be liable to civil prosecution for any act or acts done by them except for willful misconduct beyond the scope of their official duties.

Under the National Defense Act of 1916, 1587 the militia, which hitherto had been an almost purely state institution, was brought under the control of the National Government. The term ''militia of the United States'' was defined to comprehend ''all able-bodied male citizens of the United States and all other able-bodied males who have . . . declared their intention to become citizens of the United States,'' between the ages of eighteen and forty-five. The act reorganized the National Guard, determined its size in proportion to the population of the several States, required that all enlistments be for ''three years in service and three years in reserve,'' limited the appointment of officers to those who ''shall have successfully passed such tests as to . . . physical, moral and professional fitness as the President shall prescribe,'' and authorized the President in certain emergencies to ''draft into the military service of the United States to serve therein for the period of the war unless sooner discharged, and all members of the National Guard and National Guard Reserve,'' who thereupon should ''stand discharged from the militia.'' 1588

The militia clauses do not constrain Congress in raising and supporting a national army. The Court has approved the system of ''dual enlistment,'' under which persons enlisted in state militia (National Guard) units simultaneously enlist in the National Guard of the United States, and, when called to active duty in the federal service, are relieved of their status in the state militia. Consequently, the restrictions in the first militia clause have no application to the federalized National Guard; there is no constitutional requirement that state governors hold a veto power over federal duty training conducted outside the United States or that a national emergency be declared before such training may take place.

20-5-1. New Mexico state defense force established; not in federal service; definitions.

A. The New Mexico state defense force is established as an element of the militia in the department of military affairs. The members and organizations of the former New Mexico state guard are transferred to the New Mexico state defense force on the effective date of this act.

B. Nothing in Chapter 20 NMSA 1978 shall be construed as authorizing the New Mexico state defense force or any part thereof to be called, ordered or in any manner drafted by federal authorities into the military service of the United States, but no person by reason of his enlistment or appointment in the state defense force shall be exempted from military service under any law of the United States.

C. The following definitions apply to the duty statuses under which members of the state defense force serve:

(1) "militia duty" means the performance of actual military service for the state in time of need when called by the governor or adjutant general following mobilization of the national guard. It may be performed by the standing cadre of the state defense force at any time so ordered following mobilization of the national guard. It may be performed by the unorganized militia following its call by the governor pursuant to Subsection B of Section 20-2-6 NMSA 1978 of this chapter, in which case it shall include the post-call training of the New Mexico state defense force pursuant thereto; and

(2) "cadre duty" means the normal service and training performed by the standing cadre of the state defense force in anticipation and support of militia duty including organization, administration and other pre-call matters.