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[Cite as Perpich v. Dept. of Defense, 496 U.S.
334 (1990). NOTE: This decision contains a history of the federalization
of state militias. It affirms an Appeals Court decision (880 F. 2d
11) which itself affirmed a District Court decision (666 F.
Supp. 1319, 1320 (Minn. 1987)) stating "Congress, under its
constitutional authority to 'raise and support armies' has created the National
Guard of the United States" (see Pp. 338-339). It is
worth noting that the legislation discussed in this decision as having altered
the State militias occured in 1903, 1908, 1916 and 1933 (see Pp.
1939 Miller decision devoted half its decision to a history of the
militia as it pertained to the Second Amendment right to arms and was evidently
unaware of these then-recent alterations of the militia and any affect upon the
right to arms. (See Miller, 307 U.S. 174, 179). This also
appears to be true for the drafters of the 1934 NFA being decided. (See
Halbrook, Congress Interprets the Second Amendment: Declarations By a
Co-Equal Branch on the Individual Right to Keep and Bear Arms, 62 Tenn L. Rev. 597, 601 (1985). Finally,
the Perpich decision made no mention of the Second Amendment while in the
same year the Court did mention the Second Amendment in Verdugo-Urquidez
as vested in the same "people" as other rights using that same designation. (See
Verdugo-Urquidez, 494 U.S. 259, 265 (1990).]
PERPICH, GOVERNOR OF MINNESOTA, et al. v.
DEPARTMENT OF DEFENSE et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 89-542. Argued March 27, 1990--Decided June 11,
Since 1933, federal law has provided that persons
enlisting in a State National Guard unit simultaneously enlist in the National
Guard of the United States, a part of the Army. The enlistees retain their
status as State Guard members unless and until ordered to active federal duty
and revert to state status upon being relieved from federal service. The
authority to order the Guard to federal duty was limited to periods of national
emergency until 1952, when Congress broadly authorized orders "to active duty or
active duty for training" without any emergency requirement, but provided that
such orders could not be issued without the consent of the governor of the State
concerned. After two State Governors refused to consent to federal training
missions abroad for their Guard units, the gubernatorial consent requirement was
partially repealed in 1986 by the "Montgomery Amendment," which provides that a
governor cannot withhold consent with regard to active duty outside the United
States because of any objection to the location, purpose, type, or schedule of
such duty. The Governor of Minnesota and the State of Minnesota (hereinafter
collectively referred to as the Governor) filed a complaint for injunctive
relief, alleging, inter alia, that the Montgomery Amendment had prevented
him from withholding his consent to a 1987 federal training mission in Central
America for certain members of the State Guard, and that the Amendment violates
the Militia Clauses of Article I, § 8, of the Constitution,
which authorize Congress to provide for (1) calling forth the militia to execute
federal law, suppress insurrections, and repel invasions, and (2) organizing,
arming, disciplining, and governing such part of the militia as may be employed
in the federal service, reserving to the States the appointment of officers and
the power to train the militia according to the discipline prescribed by
Congress. The District Court rejected the Governor's challenge, holding that the
Federal Guard was created pursuant to Congress' Article I, § 8,
power to raise and support armies; that the fact that Guard units also
have an identity as part of the state militia does not limit Congress' plenary
authority to train the units as it sees fit when the Guard is called to active
federal service; and that, accordingly, the Constitution neither required the
gubernatorial veto nor prohibited its withdrawal. The Court of Appeals
Held: Article I's plain language, read as a
whole, establishes that Congress may authorize members of the National Guard of
the United States to be ordered to active federal duty for purposes of training
outside the United States without either the consent of a State Governor or the
declaration of a national emergency. Pp. 347-355.
(a) The unchallenged validity of the dual enlistment
system means that Guard members lose their state status when called to active
federal duty, and, if that duty is a training mission, the training is performed
by the Army. During such periods, the second Militia Clause is no longer
applicable. Pp. 347-349.
(b) This view of the constitutional issue was
presupposed by the Selective Draft Law Cases, 245 U.S. 366,
375, 377, 381-384, which held that the Militia Clauses do not constrain
Congress' Article I, § 8, powers to provide for the common
defense, raise and support armies, make rules for the governance of the Armed
Forces, and enact necessary and proper laws for such purposes, but in fact
provide additional grants of power to Congress. Pp. 349-351.
(c) This interpretation merely recognizes the
supremacy of federal power in the military affairs area and does not
significantly affect either the State's basic training responsibility or its
ability to rely on its own Guard in state emergency situations. Pp. 351-352.
(d) In light of the exclusivity of federal power
over many aspects of military affairs, see Tarble's Case,
13 Wall. 397, the powers allowed to the States by existing statutes are
significant. Pp. 353-354.
(e) Thus, the Montgomery Amendment is not
inconsistent with the Militia Clauses. Since the original gubernatorial veto was
not constitutionally compelled, its partial repeal by the Amendment is
constitutionally valid. Pp. 354-355.
880 F. 2d 11, affirmed.
Stevens, J., delivered the
opinion for a unanimous Court.
John R. Tunheim, Chief Deputy Attorney
General of Minnesota, argued the cause for petitioners. With him on the briefs
were Hubert H. Humphrey III, Attorney General, and Peter M.
Ackerberg, Special Assistant Attorney General.
Solicitor General Starr argued the cause for respondents. With
him on the brief were Assistant Attorney General Gerson, Deputy
Solicitor General Merrill, James A. Feldman, and Anthony J.
Justice Stevens delivered
the opinion of the Court.
The question presented is whether the Congress may
authorize the President to order members of the National Guard to active duty
for purposes of training outside the United States during peacetime without
either the consent of a State Governor or the declaration of a national
A gubernatorial consent requirement that had been enacted in 1952 was
partially repealed in 1986 by the "Montgomery Amendment," which provides:(p.337)
"The consent of a Governor described in
subsections (b) and (d) may not be withheld (in whole or in part) with regard
to active duty outside the United States, its territories, and its
possessions, because of any objection to the location, purpose, type, or
schedule of such active duty."
In this litigation the Governor of Minnesota and
the State of Minnesota (hereinafter collectively referred to as the Governor),
challenge the constitutionality of that amendment. The Governor contends that it
violates the Militia Clauses of the Constitution.(p.338)
In his complaint the Governor alleged that pursuant to a state
statute the Minnesota National Guard is the organized militia of the State of
Minnesota and that pursuant to a federal statute members of that militia "are
also members of either the Minnesota unit of the Air National Guard of the
United States or the Minnesota unit of the Army National Guard of the United
States (hereinafter collectively referred to as the 'National Guard of the
United States')." App. 5. The complaint further alleged
that the Montgomery Amendment had prevented the Governor from withholding his
consent to a training mission in Central America for certain members of the
Minnesota National Guard in January 1987, and prayed for an injunction against
the implementation of any similar orders without his consent.
The District Judge rejected the Governor's challenge. He explained
that the National Guard consists of "two overlapping, but legally distinct,
organizations. Congress, under its constitutional authority to 'raise and
support armies' has created the National Guard of the United States, a federal
organization comprised of state national guard units and their members." 666 F. Supp. 1319, 1320 (Minn. 1987). The fact
that these units also maintain an identity as (p.339)State National Guards, part of the militia described in
Art. I, § 8, of the Constitution, does not limit Congress'
plenary authority to train the Guard "as it sees fit when the Guard is called to
active federal service." Id., at 1324. He therefore
concluded that "the gubernatorial veto found in §§ 672(b) and
672(d) is not constitutionally required. Having created the gubernatorial
veto as an accommodation to the states, rather than pursuant to a constitutional
mandate, the Congress may withdraw the veto without violating the Constitution."
A divided panel of the Court of Appeals for the Eighth Circuit
reached a contrary conclusion. It read the Militia Clauses as preserving state
authority over the training of the National Guard and its membership unless and
until Congress "determined that there was some sort of exigency or extraordinary
need to exert federal power." App. to Pet. for Cert. A92.
Only in that event could the army power dissipate the authority reserved to the
States under the Militia Clauses.
In response to a petition for rehearing en banc, the Court of
Appeals vacated the panel decision and affirmed the judgment of the District
Court. Over the dissent of two judges, the en banc court agreed with the
District Court's conclusion that "Congress' army power is plenary and exclusive"
and that the State's authority to train the militia did not conflict with
congressional power to raise armies for the common defense and to control the
training of federal reserve forces. 880 F. 2d 11, 17-18
Because of the manifest importance of the issue, we granted the
Governor's petition for certiorari. 493 U.S. 1017 (1990).
In the end, we conclude that the plain language (p.340)of Article I of the Constitution,
read as whole, requires affirmance of the Court of Appeals' judgment. We
believe, however, that a brief description of the evolution of the present
statutory scheme will help to explain that holding.
Two conflicting themes, developed at the
Constitutional Convention and repeated in debates over military policy during
the next century, led to a compromise in the text of the Constitution and in
later statutory enactments. On the one hand, there was a widespread fear that a
national standing Army posed an intolerable threat to individual liberty and to
the sovereignty of the separate States, while, on
the other hand, there was a recognition of the danger of relying on inadequately
trained soldiers as the primary means of providing for the common defense. Thus,
Congress was authorized both to raise and support a national Army and also to
organize "the Militia."(p.341)
In the early years of the Republic, Congress did neither. In 1792, it
did pass a statute that purported to establish "an Uniform Militia throughout
the United States," but its detailed command that every able-bodied male citizen
between the ages of 18 and 45 be enrolled therein and equip himself with
appropriate weaponry was virtually ignored for more than a century, during which
time the militia proved to be a decidedly unreliable fighting force. The statute
was finally repealed in 1901. It was in
that year that President Theodore Roosevelt declared: "Our militia law is
obsolete and worthless." The process of transforming "the National (p.342)Guard of the several States" into an effective fighting
force then began.
The Dick Act divided the class of able-bodied male citizens between
18 and 45 years of age into an "organized militia" to be known as the National
Guard of the several States, and the remainder of which was then described as
the "reserve militia," and which later statutes have termed the "unorganized
militia." The statute created a table of organization for the National Guard
conforming to that of the Regular Army, and provided that federal funds and
Regular Army instructors should be used to train its members. It is
undisputed that Congress was acting pursuant to the Militia Clauses of the
Constitution in passing the Dick Act. Moreover, the legislative history of that
Act indicates that Congress contemplated that the services of the organized
militia would "be rendered only upon the soil of the United States or of its
Territories." H.R. Rep. No. 1094, 57th Cong., 1st Sess., 22 (1902).
In 1908, however, the statute was amended to provide (p.343)expressly that the Organized Militia should be available
for service "either within or without the territory of the United States."
When the Army made plans to invoke that authority by using National
Guard units south of the Mexican border, Attorney General Wickersham expressed
the opinion that the Militia Clauses precluded such use outside the Nation's
borders. In response to that opinion and to the widening conflict in
Europe, in 1916 Congress decided to "federalize" the National Guard. In
addition to providing for greater federal control and federal funding of the
Guard, the statute required every guardsman to take a dual oath--to support the
Nation as well as the States and to obey the President as well as the
Governor--and authorized the President to draft members of the Guard into
federal service. The statute expressly provided that the Army of the United
States should include not only "the Regular Army," but also "the National (p.344)Guard while in the service of the United
States," and that when drafted into federal service by the President,
members of the Guard so drafted should "from the date of their draft, stand
discharged from the militia, and shall from said date be subject to" the rules
and regulations governing the Regular Army. § 111, 39 Stat.
During World War I, the President exercised the power to draft
members of the National Guard into the Regular Army. That power, as well as the
power to compel civilians to render military service, was upheld in the Selective Draft Law Cases, 245 U.S. 366 (1918).
Specifically, in those cases, and in Cox v. Wood, 247 U.S.
3 (1918), the Court held that the plenary power to raise armies was "not
qualified or restricted by the provisions of the militia clause."(p.345)
The draft of the individual members of the National Guard into the
Army during World War I virtually destroyed the Guard as an effective
organization. The draft terminated the members' status as militiamen, and the
statute did not provide for a restoration of their prewar status as members of
the Guard when they were mustered out of the Army. This problem was ultimately
remedied by the 1933 amendments to the 1916 Act. Those amendments created the
"two overlapping but distinct organizations" described by the District
Court--the National Guard of the various States and the National Guard of the
Since 1933 all persons who have enlisted in a State National Guard
unit have simultaneously enlisted in the National Guard of the United States. In
the latter capacity they became a part of the Enlisted Reserve Corps of the
Army, but unless and until ordered to active duty in the Army, they retained
their status as members of a separate State Guard unit. Under the 1933 Act, they
could be ordered into active service whenever Congress declared a national
emergency and authorized the use of troops in excess of those in the Regular
Army. The statute plainly described the effect of such an order:
"All persons so ordered into the active military
service of the United States shall from the date of such order stand relieved
from duty in the National Guard of their respective States, Territories, and
the District of Columbia so long as they shall remain in the active military
service of the United States, and during such time shall be subject (p.346)to such laws and regulations for the
government of the Army of the United States as may be applicable to members of
the Army whose permanent retention in active military service is not
contemplated by law. The organization of said units existing at the date of
the order into active Federal service shall be maintained intact insofar as
practicable." § 18, 48 Stat. 160-161.
"Upon being relieved from active duty in the
military service of the United States all individuals and units shall
thereupon revert to their National Guard status." Id., at
Thus, under the "dual enlistment" provisions of
the statute that have been in effect since 1933, a member of the Guard who is
ordered to active duty in the federal service is thereby relieved of his or her
status in the State Guard for the entire period of federal service.
Until 1952 the statutory authority to order National Guard units to
active duty was limited to periods of national emergency. In that year, Congress
broadly authorized orders to "active duty or active duty for training" without
any emergency requirement, but provided that such orders could not be issued
without gubernatorial consent. The National Guard units have under this plan
become a sizable portion of the Nation's military forces; for example, "the Army
National Guard provides 46 percent of the combat units and 28 percent of the
support forces of the Total Army."
Apparently gubernatorial consents to training missions were routinely obtained
until 1985, when the Governor of California refused to consent to a training
mission for 450 members of the California National Guard in Honduras, and the
Governor of Maine shortly thereafter refused to consent to a similar mission.
Those incidents led to the enactment of the Montgomery Amendment and this
The Governor's attack on the Montgomery Amendment
relies in part on the traditional understanding that "the Militia" can only be
called forth for three limited purposes that do not encompass either foreign
service or nonemergency conditions, and in part on the express language in the
second Militia Clause reserving to the States "the Authority of training the
Militia." The Governor does not, however, challenge the authority of Congress to
create a dual enlistment program. Nor does
the Governor claim that membership in a State Guard unit--or any type of state
militia--creates any sort of constitutional immunity from being drafted into the
Federal Armed Forces. Indeed, it would be ironic to claim such immunity when
every member of the Minnesota National Guard has voluntarily enlisted, or
accepted a commission as an officer, in the National Guard of the United States
and thereby become a member of the Reserve Corps of the Army.
The unchallenged validity of the dual enlistment system means that
the members of the National Guard of Minnesota who are ordered into federal
service with the National Guard of the United States lose their status as
members of the state militia during their period of active duty. If that duty is
a training mission, the training is performed by the Army in which the trainee
is serving, not by the militia from which the member has been temporarily
disassociated. "Each member of the Army National Guard of the United States or
the Air National Guard of the United States who is ordered to active duty is
relieved from duty in the National Guard of his State or Territory, or of Puerto
Rico or the District of Columbia, as (p.348)the
case may be, from the effective date of his order to active duty until he is
relieved from that duty." 32 U.S.C. § 325(a).
This change in status is unremarkable in light of the traditional
understanding of the militia as a part-time, nonprofessional fighting force. In
Dunne v. People, 94 Ill. 120 (1879), the Illinois Supreme
Court expressed its understanding of the term "militia" as follows:
"Lexicographers and others define militia, and so
the common understanding is, to be 'a body of armed citizens trained to
military duty, who may be called out in certain cases, but may not be kept on
service like standing armies, in time of peace.' That is the case as to the
active militia of this State. The men comprising it come from the body of the
militia, and when not engaged at stated periods in drilling and other
exercises, they return to their usual avocations, as is usual with militia,
and are subject to call when the public exigencies demand it." Id., at 138.
Notwithstanding the brief periods of federal
service, the members of the State Guard unit continue to satisfy this
description of a militia. In a sense, all of them now must keep three hats in
their closets--a civilian hat, a state militia hat, and an army hat--only one of
which is worn at any particular time. When the state militia hat is being worn,
the "drilling and other exercises" referred to by the Illinois Supreme Court are
performed pursuant to "the Authority of training the Militia according to the
discipline prescribed by Congress," but when that hat is replaced by the federal
hat, the second Militia Clause is no longer applicable.
This conclusion is unaffected by the fact that prior to 1952 Guard
members were traditionally not ordered into active service in peacetime or for
duty abroad. That tradition is at least partially the product of political
debate and political (p.349)compromise, but
even if the tradition were compelled by the text of the Constitution, its
constitutional aspect is related only to service by State Guard personnel who
retain their state affiliation during their periods of service. There now exists
a wholly different situation, in which the state affiliation is suspended in
favor of an entirely federal affiliation during the period of active duty.
This view of the constitutional issue was presupposed by our decision
in the Selective Draft Law Cases, 245 U. S. 366
(1918). Although the Governor is correct in pointing out that those cases
were decided in the context of an actual war, the reasoning in our opinion was
not so limited. After expressly noting that the 1916 Act had incorporated
members of the National Guard into the National Army, the Court held that the
Militia Clauses do not constrain the powers of Congress "to provide for the
common Defence," to "raise and support Armies," to "make Rules for the
Government and Regulation of the land and naval Forces," or to enact such laws
as "shall be necessary and proper" for executing those powers. Id., at 375, 377, 381-384. The Court instead held that,
far from being a limitation on those powers, the Militia Clauses are--as the
constitutional text plainly indicates--additional grants of power to
The first empowers Congress to call forth the militia "to execute the
Laws of the Union, suppress Insurrections and repel Invasions." We may assume
that Attorney General Wickersham was entirely correct in reasoning that when a
National Guard unit retains its status as a state militia, Congress could not
"impress" the entire unit for any other purpose. Congress did, however,
authorize the President to call forth the entire membership of the Guard into
federal service during World War I, even though the soldiers who fought in
France were not engaged in any of the three specified purposes. Membership in
the militia did not exempt (p.350)them from a
valid order to perform federal service, whether that service took the form of
combat duty or training for such duty. The
congressional power to call forth the militia may in appropriate cases
supplement its broader power to raise armies and provide for the common defense
and general welfare, but it does not limit those powers.
The second Militia Clause enhances federal power in three additional
ways. First, it authorizes Congress to provide for "organizing, arming and
disciplining the Militia." It is by congressional choice that the available pool
of citizens has been formed into organized units. Over the years, Congress has
exercised this power in various ways, but its current choice of a dual
enlistment system is just as permissible as the 1792 choice to have the members
of the militia arm themselves. Second, the Clause authorizes Congress to provide
for governing such part of the militia as may be employed in the service of the
United States. Surely this authority encompasses continued training while on
active duty. Finally, although the appointment of officers "and the Authority of
training the Militia" is reserved to the States respectively, that limitation
is, in turn, limited by the words "according to the discipline prescribed by
Congress." If the discipline required for effective service in the Armed Forces
of a global power requires training in distant lands, or distant skies, Congress
has the authority to provide it. The subordinate (p.351)authority to perform the actual training prior to active
duty in the federal service does not include the right to edit the discipline
that Congress may prescribe for Guard members after they are ordered into
The Governor argues that this interpretation of the Militia Clauses
has the practical effect of nullifying an important state power that is
expressly reserved in the Constitution. We disagree. It merely recognizes the
supremacy of federal power in the area of military affairs. The
Federal Government provides virtually all of the funding, the materiel, and the
leadership for the State Guard units. The Minnesota unit, which includes about
13,000 members, is affected only slightly when a few dozen, or at most a few
hundred, soldiers are ordered into active service for brief periods of time. Neither
the State's basic training responsibility, nor its ability to rely on its own
Guard in state emergency situations, is significantly affected. Indeed, if the
federal training mission were to interfere with the State Guard's capacity to
respond to local emergencies, the Montgomery Amendment would permit the Governor
to veto the proposed mission.
Moreover, (p.352)Congress has provided by
statute that in addition to its National Guard, a State may provide and maintain
at its own expense a defense force that is exempt from being drafted into the
Armed Forces of the United States. See 32 U.S.C. § 109(c).
As long as that provision remains in effect, there is no basis for an argument
that the federal statutory scheme deprives Minnesota of any constitutional
entitlement to a separate militia of its own.(p.353)
In light of the Constitution's more general plan for providing for
the common defense, the powers allowed to the States by existing statutes are
significant. As has already been mentioned, several constitutional provisions
commit matters of foreign policy and military affairs to the exclusive control
of the National Government. This
Court in Tarble's Case, 13 Wall. 397 (1872), had
occasion to observe that the constitutional allocation of powers in this realm
gave rise to a presumption that federal control over the Armed Forces was
exclusive. Were it not for the Militia Clauses, it might be (p.354)possible to argue on like grounds that the
constitutional allocation of powers precluded the formation of organized state
militia. The Militia Clauses, however, subordinate any such
structural inferences to an express permission while also subjecting state
militia to express federal limitations.
We thus conclude that the Montgomery Amendment is not inconsistent
with the Militia Clauses. In so doing, we of course do not pass upon the
relative virtues of the various political choices that have frequently altered
the relationship between the Federal Government and the States in the field of
military affairs. This case does not raise any question concerning the wisdom of
the gubernatorial veto established (p.355)in
1952 or of its partial repeal in 1986. We merely hold that because the former
was not constitutionally compelled, the Montgomery Amendment is constitutionally
The judgment of the Court of Appeals is affirmed.
It is so ordered.
[*] James M. Shannon, Attorney General of Massachusetts, and
Douglas H. Wilkins and Eric Mogilnicki, Assistant Attorneys
General, Thomas J. Miller, Attorney General of Iowa, James E.
Tierney, Attorney General of Maine, Anthony J. Celebrezze, Jr.,
Attorney General of Ohio, and Jeffrey Amestoy, Attorney General of
Vermont, filed a brief for the State of Iowa et al. as amici curiae
Briefs of amici curiae urging affirmance were filed for the
National Guard Association of the United States et al. by Stephen M.
Shapiro and Michael K. Kellogg, and by the Attorneys General for
their respective States as follows: Don Siegelman of Alabama, Douglas
B. Baily of Alaska, Charles M. Oberly III of Delaware, Robert A.
Butterworth of Florida, Michael J. Bowers of Georgia, Jim
Jones of Idaho, Linley E. Pearson of Indiana, Robert T.
Stephan of Kansas, William J. Guste, Jr., of Louisiana, J. Joseph
Curran, Jr., of Maryland, Mike Moore of Mississippi, William L.
Webster of Missouri, Brian McKay of Nevada, Hal Stratton of
New Mexico, Lacy H. Thornburg of North Carolina, Robert H. Henry
of Oklahoma, T. Travis Medlock of South Carolina, Roger A.
Tellinghuisen of South Dakota, Charles W. Burson of Tennessee, R.
Paul Van Dam of Utah, Mary Sue Terry of Virginia, Donald J.
Hanaway of Wisconsin, and Joseph B. Meyer of Wyoming; for the
Firearms Civil Rights Legal Defense Fund by Stephen P. Halbrook and
Robert Dowlut; and for the Washington Legal Foundation et al. by
Daniel J. Popeo, Paul D. Kamenar, and John C. Scully.
 The Armed Forces Reserve Act of 1952, provided in part:
"Sec. 101. When used in this Act--
"(c) 'Active duty for training' means full-time duty in the active
military service of the United States for training purposes." 66
"[Section 233] (c) At any time, any unit and the members thereof,
or any member not assigned to a unit organized for the purpose of serving as
such, in an active status in any reserve component may, by competent
authority, be ordered to and required to perform active duty or active duty
for training, without his consent, for not to exceed fifteen days annually:
Provided, That units and members of the National Guard of the United
States or the Air National Guard of the United States shall not be ordered to
or required to serve on active duty in the service of the United States
pursuant to this subsection without the consent of the Governor of the State
or Territory concerned, or the Commanding General of the District of Columbia
"(d) A member of a reserve component may, by competent authority,
be ordered to active duty or active duty for training at any time with his
consent: Provided, That no member of the National Guard of the United
States or Air National Guard of the United States shall be so ordered without
the consent of the Governor or other appropriate authority of the State,
Territory, or District of Columbia concerned." Id., at
These provisions, as amended, are now codified at
10 U.S.C. §§ 672(b) and 672(d).
 The Montgomery Amendment was enacted as § 522 of
the National Defense Authorization Act for Fiscal Year 1987, Pub. L. 99-661, §
522, 100 Stat. 3871.
 Two clauses of Article I--clauses 15 and 16 of §
8--are commonly described as "the Militia Clause" or "the Militia
Clauses." They provide:
"The Congress shall have Power ...
"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
 In addition to the powers granted by the Militia Clauses, n.3,
supra, Congress possesses the following powers conferred by Art. I, § 8:
"The Congress shall have Power ... to pay the
Debts and provide for the common Defence and general Welfare of the United
"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 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."
Moreover, Art. IV, § 4,
"The United States shall guarantee to every State
in this Union a Republican Form of Government, and shall protect each of them
against Invasion; and on Application of the Legislature, or of the Executive
(when the Legislature cannot be convened) against domestic
 At the Virginia ratification convention, Edmund Randolph stated
that "there was not a member in the federal Convention, who did not feel
indignation" at the idea of a standing Army. 3 J. Elliot, Debates on the
Federal Constitution 401 (1863).
 As Alexander Hamilton argued in the Federalist Papers:
"Here I expect we shall be told that the militia
of the country is its natural bulwark, and would be at all times equal to the
national defence. This doctrine, in substance, had like to have lost us our
independence. It cost millions to the United States that might have been
saved. The facts which, from our own experience, forbid a reliance of this
kind, are too recent to permit us to be the dupes of such a suggestion. The
steady operations of war against a regular and disciplined army can only be
successfully conducted by a force of the same kind. Considerations of economy,
not less than of stability and vigor, confirm this position. The American
militia, in the course of the late war, have, by their valor on numerous
occasions, erected eternal monuments to their fame; but the bravest of them
feel and know that the liberty of their country could not have been
established by their efforts alone, however great and valuable they were. War,
like most other things, is a science to be acquired and perfected by
diligence, by perseverance, by time, and by practice." The Federalist
No. 25, pp. 156-157 (E. Earle ed. 1938).
"That every citizen so enrolled and notified, shall, within six
months thereafter, provide himself with a good musket or firelock, a
sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a
box therein to contain not less than twenty-four cartridges, suited to the
bore of his musket or firelock, each cartridge to contain a proper quantity of
powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn,
twenty balls suited to the bore of his rifle, and a quarter of a pound of
powder; and shall appear, so armed, accoutred and provided, when called out to
exercise, or into service, except, that when called out on company days to
exercise only, he may appear without a knapsack." 1 Stat.
 Wiener, The Militia Clause of the Constitution, 54 Harv.
L. Rev. 181, 187-194 (1940).
 See 31 Stat. 748, 758.
"Action should be taken in reference to the militia and to the
raising of volunteer forces. Our militia law is obsolete and worthless. The
organization and armament of the National Guard of the several States, which
are treated as militia in the appropriations by the Congress, should be made
identical with those provided for the regular forces. The obligations and
duties of the Guard in time of war should be carefully defined, and a system
established by law under which the method of procedure of raising volunteer
forces should be prescribed in advance. It is utterly impossible in the
excitement and haste of impending war to do this satisfactorily if the
arrangements have not been made long beforehand. Provision should be made for
utilizing in the first volunteer organizations called out the training of
those citizens who have already had experience under arms, and especially for
the selection in advance of the officers of any force which may be raised; for
careful selection of the kind necessary is impossible after the outbreak of
war." First Annual Message to Congress, Dec. 3, 1901, 14 Messages and
Papers of the Presidents 6672.
 The Act of January 21, 1903, 32 Stat.
775, provided in part:
"That the militia shall consist of every
able-bodied male citizen of the respective States, Territories, and the
District of Columbia, and every able-bodied male of foreign birth who has
declared his intention to become a citizen, who is more than eighteen and less
than forty-five years of age, and shall be divided into two classes--the
organized militia, to be known as the National Guard of the State, Territory,
or District of Columbia, or by such other designations as may be given them by
the laws of the respective States or Territories, and the remainder to be
known as the Reserve Militia."
Section 3 of the 1903 Act
provided in part:
"That the regularly enlisted, organized, and
uniformed active militia in the several States and Territories and the
District of Columbia who have heretofore participated or shall hereafter
participate in the apportionment of the annual appropriation provided by
section sixteen hundred and sixty-one of the Revised Statutes of the United
States, as amended, whether known and designated as National Guard, militia,
or otherwise, shall constitute the organized militia."
Section 4 of the 1903 Act authorized the
President to call forth the militia for a period not exceeding nine months.
Id., at 776.
 Section 4, 35 Stat. 400.
"It is certain that it is only upon one or more of these three
occasions--when it is necessary to suppress insurrections, repel invasions, or
to execute the laws of the United States--that even Congress can call this
militia into the service of the United States, or authorize it to be done."
29 Op. Atty. Gen. 322, 323-324 (1912).
"The plain and certain meaning and effect of this constitutional
provision is to confer upon Congress the power to call out the militia 'to
execute the laws of the Union' within our own borders where, and where only,
they exist, have any force, or can be executed by any one. This confers no
power to send the militia into a foreign country to execute our laws which
have no existence or force there and can not be there executed."
Id., at 327.
Under Attorney General Wickersham's analysis, it would apparently be
unconstitutional to call forth the militia for training duty outside the United
States, even with the consent of the appropriate Governor. Of course, his
opinion assumed that the militia units so called forth would retain their
separate status in the state militia during their period of federal service.
 See Wiener, 54 Harv. L. Rev., at 199-203.
 The National Defense Act of June 3, 1916, 39
Stat. 166, provided in part:
"That the Army of the United States shall consist
of the Regular Army, the Volunteer Army, the Officers' Reserve Corps, the
Enlisted Reserve Corps, the National Guard while in the service of the United
States, and such other land forces as are now or may hereafter be authorized
"The possession of authority to enact the statute must be found in
the clauses of the Constitution giving Congress power 'to declare war; ... to
raise and support armies, but no appropriation of money to that use shall be
for a longer term than two years; ... to make rules for the government and
regulation of the land and naval forces.' Article I, § 8.
And of course the powers conferred by these provisions like all other powers
given carry with them as provided by the Constitution the authority 'to make
all laws which shall be necessary and proper for carrying into execution the
foregoing powers.' Article I, § 8." 245
U.S., at 377.
"This result is apparent since on the face of the opinion
delivered in those cases the constitutional power of Congress to compel the
military service which the assailed law commanded was based on the following
propositions: (a) That the power of Congress to compel military service and
the duty of the citizen to render it when called for were derived from the
authority given to Congress by the Constitution to declare war and to raise
armies. (b) That those powers were not qualified or restricted by the
provisions of the militia clause, and hence the authority in the exercise of
the war power to raise armies and use them when raised was not subject to
limitations as to use of the militia, if any, deduced from the militia clause.
And (c) that from these principles it also follows that the power to call for
military duty under the authority to declare war and raise armies and the duty
of the citizen to serve when called were coterminous with the constitutional
grant from which the authority was derived and knew no limit deduced from a
separate, and for the purpose of the war power, wholly incidental, if not
irrelevant and subordinate, provision concerning the militia, found in the
Constitution. Our duty to affirm is therefore made clear." 247
U.S., at 6.
 App. 12 (testimony of James H. Webb,
Assistant Secretary of Defense for Reserve Affairs, before a subcommittee of the
Senate Armed Services Committee on July 15, 1986).
"The dual enlistment system requires state National Guard members
to simultaneously enroll in the National Guard of the United States (NGUS), a
reserve component of the national armed forces. 10 U.S.C. §§
101(11) and (13), 591(a), 3261, 8261; 32 U.S.C. §§ 101(5)
and (7). It is an essential aspect of traditional military policy of
the United States. 32 U. S. C. § 102. The State of
Minnesota fully supports dual enlistment and has not challenged the concept in
any respect." Reply Brief for Petitioners 9 (footnote
 See Selective Draft Law Cases, 245 U.S.
366, 382-389 (1918); Cox v. Wood, 247 U.S. 3, 6
 Congress has by distinct statutes provided for activating the
National Guard of the United States and for calling forth the militia, including
the National Guards of the various States. See 10 U.S.C. §§
672-675 (authorizing executive officials to order reserve forces,
including the National Guard of the United States and the Air National Guard of
the United States, to active duty); 10 U.S.C. §§ 331-333
(authorizing executive officials to call forth the militia of the States); 10 U.S.C. §§ 3500, 8500 (authorizing executive officials to call
forth the National Guards of the various States). When the National Guard units
of the States are called forth, the orders "shall be issued through the
governors of the States." § 3500.
 This supremacy is evidenced by several constitutional
provisions, especially the prohibition in Art. I, § 10, of
the Constitution, which states:
"No State shall, without the Consent of Congress,
lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter
into any Agreement or Compact with another State, or with a foreign Power, or
engage in War, unless actually invaded, or in such imminent Danger as will not
admit of delay."
 According to the Governor, at most "only several hundred" of
Minnesota's National Guard members "will be in federal training at any one
time." Brief for Petitioners 41.
 The Montgomery Amendment deprives the Governors of the power
to veto participation in a National Guard of the United States training mission
on the basis of any objection to "the location, purpose, type, or schedule of
such active duty." 10 U.S.C. § 672(f). Governors may
withhold their consent on other grounds. The Governor and the United States
agree that if the federalization of the Guard would interfere with the State
Guard's ability to address a local emergency, that circumstance would be a valid
basis for a gubernatorial veto. Brief for Petitioners 41;
Brief for Respondents 9.
The Governor contends that the residual veto power is of little use.
He predicates this argument, however, on a claim that the federal training
program has so minimal an impact upon the State Guard that the veto is never
"Minnesota has approximately 13,000 members of
the National Guard. At most, only several hundred will be in federal training
at any one time. To suggest that a governor will ever be able to withhold
consent under the Montgomery Amendment assumes (1) local emergencies can be
adequately predicted in advance, and (2) a governor can persuade federal
authorities that National Guard members designated for training are needed for
state purposes when the overwhelming majority of the National Guard remains at
home." Brief for Petitioners 41.
Under the interpretation of the Montgomery
Amendment advanced by the federal parties, it seems that a governor might also
properly withhold consent to an active duty order if the order were so intrusive
that it deprived the State of the power to train its forces effectively for
"Under the current statutory scheme, the States
are assured of the use of their National Guard units for any legitimate state
purpose. They are simply forbidden to use their control over the state
National Guard to thwart federal use of the NGUS for national security and
foreign policy objectives with which they disagree." Brief for
 The Governor contends that the state defense forces are
irrelevant to this case because they are not subject to being called forth by
the National Government and therefore cannot be militia within the meaning of
the Constitution. We are not, however, satisfied that this argument is
persuasive. First, the immunity of those forces from impressment into the
national service appears--if indeed they have any such immunity--to be the
consequence of a purely statutory choice, and it is not obvious why that choice
should alter the constitutional status of the forces allowed the States. Second,
although we do not believe it necessary to resolve the issue, the Governor's
construction of the relevant statute is subject to question. It is true that the
state defense forces "may not be called, ordered, or drafted into the armed
forces." 32 U.S.C. § 109(c). It is nonetheless possible
that they are subject to call under 10 U.S.C. §§ 331-333,
which distinguish the "militia" from the "armed forces," and which appear to
subject all portions of the "militia"--organized or not--to call if needed for
the purposes specified in the Militia Clauses. See n.21,
 See, e.g., Art. I, § 8, cl. 11
(Congress' power to declare war); Art. I, § 10, cl. 1
(States forbidden to enter into treaties); Art. I, § 10, cl.
3 (States forbidden to keep troops in time of peace, enter into
agreements with foreign powers, or engage in war absent imminent invasion);
Art. II, § 3 (President shall receive ambassadors).
 In the course of holding that a Wisconsin court had no
jurisdiction to issue a writ of habeas corpus to inquire into the validity of a
soldier's enlistment in the United States Army, we observed:
"Now, among the powers assigned to the National government, is the
power 'to raise and support armies,' and the power 'to provide for the
government and regulation of the land and naval forces.' The execution of
these powers falls within the line of its duties; and its control over the
subject is plenary and exclusive. It can determine, without question from any
State authority, how the armies shall be raised, whether by voluntary
enlistment or forced draft, the age at which the soldier shall be received,
and the period for which he shall be taken, the compensation he shall be
allowed, and the service to which he shall be assigned. And it can provide the
rules for the government and regulation of the forces after they are raised,
define what shall constitute military offences, and prescribe their
punishment. No interference with the execution of this power of the National
government in the formation, organization, and government of its armies by any
State officials could be permitted without greatly impairing the efficiency,
if it did not utterly destroy, this branch of the public service." 13 Wall., at 408.
 See United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 318 (1936) ("The powers to declare and wage war,
to conclude peace, to make treaties, to maintain diplomatic relations with other
sovereignties, if they had never been mentioned in the Constitution, would have
vested in the federal government as necessary concomitants of nationality");
The Federalist No. 23, p. 143 (E. Earle ed. 1938) ("[I]t must be
admitted ... that there can be no limitation of that authority which is to
provide for the defense and protection of the community, in any matter essential
to its efficacy--that is, in any matter essential to the formation,
direction, or support of the NATIONAL FORCES"); L.
Henkin, Foreign Affairs and the Constitution 234-244 (1972) (discussing
implied constitutional restrictions upon state policies related to foreign
affairs); Comment, The Legality of Nuclear Free Zones, 55 U. Chi. L. Rev.
965, 991-997 (1988) (discussing implied constitutional restrictions upon
state policies related to foreign affairs or the military).
 The powers allowed by statute to the States make it
unnecessary for us to examine that portion of the Selective
Draft Law Cases, 245 U.S. 366 (1918), in which we stated:
"[The Constitution left] under the sway of the States undelegated
the control of the militia to the extent that such control was not taken away
by the exercise by Congress of its power to raise armies. This did not
diminish the military power or curb the full potentiality of the right to
exert it but left an area of authority requiring to be provided for (the
militia area) unless and until by the exertion of the military power of
Congress that area had been circumscribed or totally disappeared." Id., at 383.