The Dark Side Of The State Militia

A key part of the American constitutional order not contained in the United States Constitution itself is the Posse Comitatus Act, which provides that the United States military may not be used to enforce domestic laws except in rare cases of invasion or insurrection.

The constitutionally preferred way to handle events beyond the resources of the local constabulary is to call out the state militia, the principal component of which, these days, is the Colorado National Guard. The Colorado National Guard, when not in federal service, may be activated by the Governor to suppress riots and enforce the laws, in addition to their more usual role in responding to natural disasters.

Absent activation by the Governor or President, membership in the National Guard is a part-time job, typically involving a weekend a month and two weeks a year of training, for part-time pay.

The theory, basically, is that national guard members, who have more day to day non-military contact with the general population, who live in the state, and who tend to be older (a large share of national guard members are retired military, or experienced public safety workers), are less likely to do something stupid than active duty military soldiers who tend to be in their late teens or early twenties and have little adult experience with civilian American life outside the military and often hail from distant parts of the country. Governors, likewise, are less prone to be rash than Presidents, the theory goes, because their constituency cares more about how people in their state are treated by militia forces, than the larger national constituency of the President.

But, as Kent State in Ohio, and the Ludlow Massacre in Colorado (95 years ago today), this doesn't mean that state militias will never use force excessively.

The same part-time nature of the militia job that keeps those involved more aware of what is normal in life, also means that they spend less time training for high pressure potential riot situations. The same political logic that keeps Governors politically aware of what is going on in their state, also makes it unlikely that they are impartial arbiters of disputes in the state, and voters rarely give much thought to the acumen of their Governors as military commanders.

The basic question is whether military law enforcement is too important a matter to be left to professionals, or just the opposite. Mostly, these days, this is resolved by having the state patrol or local law enforcement, rather than the militia, respond whenever possible. But, for better or worse, there is still a state militia, and it could be called in to deal with "Big Trouble" which very often has a domestic political component.