Do States Have The Authority To Use Militias To Protect Their Borders From Intrusions By Illegal Aliens?

by
Robert Greenslade

As published in Sierra Times [http://www.sierratimes.com]

A recent editorial by Chris Simcox, owner and editor of a weekly paper in Tombstone Arizona called the Tombstone Tumbleweed, has ignited a national debate. Simcox's editorial calls for armed citizen militias patrolling the border in an attempt to detour illegal aliens from crossing into the country. Irrespective of whether you agree with Simcox, his proposal raises an interesting question. Do the States have the authority to use militias to protect their borders from intrusions by illegal aliens?

The American people are constantly told that people illegally entering the country are "illegal immigrants" and the federal government has exclusive jurisdiction over all matters concerning immigration. This is not the case. In fact, the word immigration does not appear anywhere in the Constitution. The only general power granted to the federal government concerning aliens is the power to establish a uniform rule of naturalization. This provision was inserted because there was, in the words of James Madison, a "dissimilarity in the rules of naturalization" among the States. By vesting this power in the federal government, as opposed to the individual States, the Founders ensured that the qualifications for becoming a citizen would be uniform throughout the several States.

We are also told that the duty of securing the borders rests solely with the federal government. This is another misconception. The Constitution states that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion...." If aliens entering into a State from a foreign country constitute an "invasion," as some claim, then the federal government is constitutionally mandated by this provision to intervene and protect the State.

The federal government can fulfill this obligation in one of two ways. It can either use the military, or Congress can call forth the states militias to repel the invasion. [See Article 1, Section 8, Clause 15] Once Congress calls forth the militia, the President, as commander in chief, has the power to direct the movement of these forces. Thus, a President could constitutionally send the state militia to curb an "invasion" by illegal aliens.

Even though the power to repel an invasion is vested in the federal government, that power is not exclusive. The Constitution authorizes the States to engage in war when attacked or in eminent danger independent of the federal government. [See Article 1, Section 10, Clause 3] Since the Constitution precludes the States from maintaining a standing army, without the consent of Congress, the state force contemplated in this clause is the state militia. Thus, the States have the constitutional authority to use the militia to protect their borders.

It should be noted that the Constitution only grants the federal government limited powers concerning use of the State militias. Congress has no constitutional authority over these militias unless and until they are called into the actual service of the United States. When not in federal service, the States have exclusive authority over their militias.

This principle was discussed during the debates on the Constitution. In the Virginia Ratifying Convention of 1788, there was a lengthy debate concerning the militia.

Mr. HENRY wished to know what authority the state governments had over the militia.
Mr. MADISON answered, that the state governments might do what they thought proper with the militia, when they were not in the actual service of the United States.
Mr. JOHN MARSHALL The state governments do not derive their powers from the general government.... The state legislatures had the power to command and govern their militia before, and still have it, undeniably, unless there is something in this Constitution that takes it away.... The truth is, that when power is given to the general legislature, if it was in the state legislatures before, both shall exercise it, unless there be an incompatibility in the exercise by one to that of the other, or negative words precluding the state governments from it. But there are no negative words here.... To me it appears, then, unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they could have done before its adoption. All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to the Congress) are contained in the 10th section of the 1st article.... But what excludes every possibility of doubt, is the last part of it "that no state shall engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." When invaded, they can engage in war, as also when in imminent danger. This proves that the states can use the militia when they find it necessary.

Marshall, who would later become Chief Justice of the United States Supreme Court, went on to state:

[T]he power of governing the militia was not vested in the states by implication, because, being possessed of it antecedent to the adoption of the government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been.

As stated by Marshall, since the States were not divested of the power to govern their militia, they have the authority to use their militia in any manner they see fit. If a State wants to send its militia to the border to stop intrusions by illegal aliens, it has the power to do so irrespective of the Constitution or the powers of the federal government.

Opponents of Mr. Simcox argue that Arizona could not actually send the militia to the border because the militia contemplated by the Founders has been replaced by the National Guard. They also claim the only militias in existence are those illegally formed by right wing white guys who watched too many war movies while cleaning their assault weapons. According to Title 26 of the Arizona Revised Statutes, section 121:

The militia of the state of Arizona consists of all able bodied citizens of the state between the ages of eighteen and forty-five years and all residents of the state between such ages who have declared their intention to become citizens of the United States. [Exceptions omitted]

As shown by this section, the militia in Arizona is alive and well. In addition, most of all the critics of Mr. Simcox in the State of Arizona will be, at some point of their life, a member of the militia.

The Arizona Revised Statutes also show that the militia has not been replaced by the National Guard. In fact, the National Guard is a sub-component of the militia.

The militia is divided into the national guard of Arizona, the state guard when organized, and the unorganized militia. [Section 122 (A)].

This section mentions the "unorganized militia." That term is defined in paragraph (E) of the same section:

The unorganized militia consists of members of the militia not members of the national guard or state guard when organized.

Pursuant to this section, anyone who meets the qualifications of section 121 who is not a member of the national or state guard is a member of the unorganized militia. Thus, the average person walking the streets of Arizona, between the ages of 18 to 45, is, by law, a member of the unorganized militia of the State of Arizona.

Since everyone from the 23-year-old UPS driver to the 43-year-old 5th grade teacher in Cochise County is a member of the unorganized militia of Arizona, Simcox's idea for a militia made-up of so-called "ordinary citizens" is not as nutty as his critics claim.

In his editorial, Simcox directs the blame for a failed border policy on the federal government. Since the States have the concurrent power to protect their borders, this charge is only partially correct. Section 172 (A) of the Arizona Revised Statutes states:

When the governor proclaims an emergency, or deems it necessary to protect lives or property, the governor may mobilize all or any part of the national guard or the unorganized militia into service of the state.

While it may not be politically correct, this section grants the governor of Arizona all the power she needs to send the militia to the border. The governor could proclaim an emergency based on the fact that illegals pose a potential health and safety risk to the people of Arizona. If you have ever watched a documentary on legal immigrants entering the country through Ellis Island, you will see that they were screened for any diseases. Thus, Arizona could employ this same standard under its police powers.

In addition, the governor could send the militia to the border to protect property. Other than federal land, where Arizona has no jurisdiction, all the property in southern Arizona belongs to private citizens or the State of Arizona. It is well documented that illegals are trespassing and vandalizing property during their trip north. Thus, the governor could mobilize the militia to protect property.

The only criticism that can be leveled against Simcox, in the author's opinion, is his apparent failure to petition the governor before recruiting citizens of Cochise County to go to the border. Since Arizona law authorizes the governor to send the militia to the border, a media campaign would show the people of Arizona that his idea has merit and is based on law.

In a November 20th newspaper story, the Arizona Republic wrote that Simcox's plan demonstrates a "disregard for law." If Simcox would organize a statewide campaign to petition Governor Jane Dee Hull to mobilize the militia, pursuant to Arizona law, and she fails to act, then who is "disregarding the law?"

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