The Nitch for State Defense Forces
by Professor Barry M Stentiford
The National Defense Act of 1916 (NDA 1916) was a watershed in the evolution of militia in the United States. Building on the reforms of the Militia Act of 19031, NDA 1916 established the National Guard in its modern form, and unintentionally set the conditions for the eventual creation of State Defense Forces. NDA 1916 was in part the culmination of decades of efforts by the National Guard Association to give the National Guard official recognition as the nation’s second line of defense and allow it to augment the Regular Army in war. Under NDA 1916, all members of the National Guard were required to take a dual oath to support the federal constitution and well as their state constitution, as is still done today. The president was required to call the entire National Guard to federal service before raising any other forces for war, which was generally assumed to be Volunteer regiments.
One part of NDA 1916 had unanticipated repercussions. Section 61 gave the National Guard in unambiguous language a virtual monopoly as organized militia of the states2:
Sec. 61. Maintenance of other troops by the states. No state shall maintain troops in time of peace other than as authorized in accordance with the organization prescribed under this act: Provide, that nothing contained in the Act shall be construed as limiting the rights of the states and territories in their use of the National Guard within their respective borders in time of peace: Provided further, that noting contained in this Act shall prevent the organization and maintenance of state police or constabulary3.
With these words, the Act created a dilemma for the states—during wartime, states would be left without an organized militia. President Woodrow Wilson brought the entire National Guard onto federal active service a few days before the declaration of war against Germany in April 1917. On 5 August 1917, the National Guard was drafted en masse into the Army.
World War I:
With the National Guard in federal service, only state adjutants general and their immediate staff remained with the states. Even in the adjutant general’s office, mobilization of the National Guard often resulted in a turnover, as some adjutants general held positions of command in the National Guard, and upon mobilization, either resigned or took leave from their position of state adjutant general, necessitating the appointment of a new, or temporary adjutant general right at the start of the United States involvement in a war. Added to the burdens, the adjutants general had a large role in the functioning of Selective Service within their states. With state military departments extremely busy, and often in turmoil, the urgent question of what would fulfill the state missions of the National Guard while the National Guard was in federal service had to compete with myriad other urgent issues.
At the time, only Pennsylvania had what could be called a state police. Most states regularly relied on the National Guard to handle larger law enforcement issues and to respond to disasters that a host of state agencies respond to today. The loss of the entire National Guard during the war was a very real problem. In many states, political leaders and the general public assumed that federal soldiers would be used to respond to floods, strikes, or riots. The War Department, however, was focused on raising, training, and deploying an army to Europe and fighting a war. It actively opposed any diversion of soldiers for responding to what it saw as state responsibilities.
States reacted to the loss of their National Guard—their sole organized militia—in myriad ways. Section 61 of the NDA 1916 did state that “No state shall maintain troops in time of peace.…” Since the US had declared war, it was not longer a “time of peace,” and thus the prohibition against raising other organized militia forces no longer applied. The Army encouraged this interpretation and urged states to create new organized militia forces for state missions, which about half of the states did.
Because of the prohibition against maintaining other organized militia in peacetime, the wartime replacement for the National Guard had to be created from scratch. As a general rule, wealthier and more urbanized states in the northeast such as Massachusetts, Connecticut, New York, and Pennsylvania, created organizations that in many ways resembled the departed National Guard. Indeed, much of the leadership for the new home guard or State Guard units, and they were often called, came from former National Guardsmen who were too old for the National Guard, or who did not pass their induction physicals and were sent home. The willingness of these men to continue their service was key to a states’ ability to quickly raise a new organized militia.
The real test of these State Guards came not during the war, when full employment and the induction of so many young men into the armed forces greatly diminished unrest, but in the years immediately after. The Attorney General had ruled that when President Wilson drafted the entire National Guard into the Army in August 1917, he had severed all its connections to the states. That meant that following the war, the former National Guardsmen in the Army were discharged as individuals rather than as units. Former Guardsmen had no obligation to resume their membership in the National Guard. After seeing war firsthand, many former National Guardsmen had little desire for further service in the National Guard. Consequently, state military departments had to recruit a new National Guard once Congress authorized it, which it did not do until 1920, meaning that for most states, they had no National Guard capable of state service until well into 1921.
The years 1919 and 1920 saw great labor violence, racial violence, and the first Red Scare. States with a uniformed, armed, and trained State Guard were better equipped to deal with the problems, while states that had not created a replacement militia could do little but urge Congress to re-establish the National Guard. Once the new National Guard units started functioning, the temporary State Guard units were disbanded.
World War II
The rapid fall of France in May 1940, and the poor showing of the Regular Army and even more so the National Guard in the summer of 1940 led President Franklin D. Roosevelt to implement the Emergency Protective Posture. As part of it, the entire National Guard was brought on active federal service, and conscription began. By the end of February, 1941, the entire National Guard was federally mobilized and unavailable to the states. Since the nation was not technically at war, Congress temporarily suspended Sec. 61on 21 October 1940 so that states could create new organized militia forces. The War Department encouraged states to replace the National Guard. About half did so before the attack on Pearl Harbor and entrance of the country into the war. Once the United States entered the war, all states except four4 created State Guard forces. Additionally, the territories of Hawaii, Puerto Rico, and Alaska also created Territorial Guard forces. These forces performed most of the normal state missions of the National Guard during the war years such as responding to hurricanes and riots, with State Guards of some states and territories more geared to opposing raids or an invasion from Japan.
The Korean War and Cold War
The years immediately after World War II were not as violent as the immediate post-World War I years, but were still a time of adjustment. By 1947, a new National Guard had been formed and State Guard units were mustered out. Sec 61 was restored, and states were again forbidden to maintain an organized militia outside of the National Guard. That said, several states did maintain some State Guard-type force in cadre form—a skeleton force really—to be fleshed out during war. The World Wars had seemingly set a paradigm in which, during war, the entire National Guard of a state would leave for its federal war-fighting mission, and the states would create a State Guard to take its place. The outbreak of war in Korea in the summer of 1950 seemed to repeat the pattern, as National Guard units were again called to federal service. The uncertainty over the scope of the Korean War, however, left states with plans ill-suited to limited wars. While large amounts of the National Guard did enter federal service, all states retained sizable amounts of their National Guard. Several states began creating a State Guard when the war broke out, but balked at creating fully fleshed out units. Still, the Cold War did not bode well for the continued presence of the National Guard in the states, and many states wanted to retain some cadre of their State Guard in peacetime as a hedge. Federal law still did not allow for other organized militia outside of the National Guard during peacetime, but several states continued to maintain a State Guard in cadres form anyway. The federal government never challenged any state for doing this, and if it did, a federal ban on a state creating other organized militia might not have held up in federal court. In 1956, Congress amended Title 32 of US Code specifically to allow, but not require, states to create separate organized militia forces, which really just legitimized what several states were already doing5.
The National Guard itself was ambivalent about states maintaining any other organized militia. The National Guard sought to keep its monopoly state missions during peacetime, but at the same time, did not want the need of the states for an organized militia during wartime to prevent the National Guard from fulfilling its federal warfighting mission. The idea of maintaining a State Guard as a cadre force, unable to perform missions during peacetime but providing a base for the creation of an expanded wartime force, was an agreeable compromise. Through the end of the Cold War, that was the model for most state organized militia outside of the National Guard—too small to provide much service during peacetime, but ready to expand should the National Guard leave the state.
Total Force
The next boost for SDFs came in the early 1980s, when the implications of the Department of Defense’s Total Force Policy again created a potential need for an organized militia to replace the National Guard during war. Under Total Force, the National Guard, rather than conscription, would again be the primary means to augment the Regular Army during war. The National Guard became concerned that state governments might pressure the federal government to keep part or all of the National Guard with the states in the event of war. Seeking to protect its federal warfighting role, the National Guard Bureau began to encourage states to maintain cadre State Guard forces to assume the state missions of the National Guard during war. The end of the Cold War, along with the collapse of the Warsaw Pact and the breakup of the Soviet Union, meant the likelihood of World War III and a large-scale mobilization of the National Guard greatly diminished. The 1990-1991 war with Iraq for the liberation of Kuwait6 involved the National Guard, but most states kept more than half of their National Guard units. A decade later, the attacks of 9 September 2001 and subsequent Global War on Terrorism was on a larger scale and much longer timeframe, but the pattern was clear—states retained much of the National Guard during war. The idea of the State Guard, or State Defense Force (SDF), as they were increasingly called, as a cadre hedge against the federal mobilization of the National Guard, was no longer viable. SDFs had to adapt to the new realities if they were to survive.
Adjusting to Limited War
Rather than a cadre force ready to expand and assume the National Guard’s domestic missions during war, SDFs began aligning themselves to augment and compliment National Guard capabilities for state missions, usually those in responding to natural disasters. Working with State Military Departments, SDFs increasingly began to develop capabilities that the state’s National Guard lacked. Several states found that local medical personnel—doctors, nurses, Emergency Medical Technicians, and such—wanted to be able to serve their states during a crisis yet did not want the federal liabilities that came with joining the National Guard. Other professions such as legal and cyber security specialists brought much needed capabilities to a state’s emergency response capabilities. The COVID pandemic that hit the United States in 2020 showed the benefits of a well-run SDF in the states that had them. States such as Tennessee found they could swear in new SDF members in the morning and have them where needed in the afternoon, an agility not possible in the National Guard.
SDFs have evolved over the last century from a replacement for the National Guard during wartime, to a force multiplier in a state’s Emergency Response System. At last count, about twenty-one states and Puerto Rico have a State Defense Force7. Rather than replace the National Guard, these forces augment the National Guard, giving their states a more robust response force during floods, earthquakes, pandemics, cyber-attacks, and other natural or man-made disasters. The ability of SDFs to rapidly adjust to changing conditions remains a key to their success.
- Militia Act of 1903: An Act to Promote the efficiency of the militia and for other purposes, ch. 196, sec. I, Statutes at Large of the United States of America 32:774–80 (1904). ↩︎
- The sole exception explicitly allowed under the Act were the naval militia some states maintained, which were not included in the National Guard. Despite the unambiguous wording of Sec. 61, some states maintained old militia units such as the Ancient and Honorable Artillery Company of Massachusetts, the Governors Horse and Foot Guard of Connecticut, and the Chartered and Unchartered Military Companies of Rhode Island. While technically organized militia, these units were mostly ceremonial, and the federal government offered no opposition to their existence. ↩︎
- National Defense Act of 1916: An Act for making further and more effectual provisions for the National Defense, and for other purposes, ch. 134, sec. 2, Statutes at Large of the United States of America 39:166–217 (1917). ↩︎
- Oklahoma, Montana, Nevada, and New Mexico did not create a State Guard during World War II. ↩︎
- Title 32, sec. 109, US Code. ↩︎
- Operation Desert Shield and Operation Desert Storm. ↩︎
- “State Guard,” in National Guard (June 2022), 14. ↩︎
