The United States Military Draft
There has been much discussion in the last decade over a resurrection of the U.S. military draft given the changing world environment. The U.S. military is always said to oppose such an action given the "success" of the volunteer system. Then there is also the discussion over whether women should be subject to the draft given women serve in the Israeli Army and served in the russian Army during World War 2. These arguments however don't even begin to cover what would happen if the United States tried to restart the military draft. To say things would go nuclear would be an understatement.
The selective Service Bureau will argue that there is no legal prohibition against women serving in a draft and that everyone is conscripted as members of the grand body populace as defined in a letter to Congress by James Monroe in 1814. The problem is its all a selective mis-reading of American history and law.
|
The Legal Argument |
|
The Primary issue is legality, of which thanks to Liberal Progressives it is so messed up one couldn't make a reasonable legal argument if they tried.
The military draft gets its legality from the 1918 Supreme Court ruling on the legality of the Selective Service Act of 1917 that was implemented in World War One. Now for those that say if they have a legal argument the issue is closed, its only legal if the parameters are still the same. And to even remotely say that the legal definitions used then are being used today is ridiculous. Worse, the Supreme Court made several statements in their ruling that cannot hold up under present historical scholarship.
But first what was the court ruling on in 1918. The court wasn't just ruling on the 1917 act, but also on provisions of the 1916 National Defense Act and the 1903 Federal Definition for Militia; For without these additional laws the 1917 Selective Service would have been impossible to enact. These aspects of the laws in question can be viewed here.
1916 Nation Defense Act.
The 1903 Militia Definition
the 1917 Selective Service Act.
The military draft gets its legality from the 1918 Supreme Court ruling on the legality of the Selective Service Act of 1917 that was implemented in World War One. Now for those that say if they have a legal argument the issue is closed, its only legal if the parameters are still the same. And to even remotely say that the legal definitions used then are being used today is ridiculous. Worse, the Supreme Court made several statements in their ruling that cannot hold up under present historical scholarship.
But first what was the court ruling on in 1918. The court wasn't just ruling on the 1917 act, but also on provisions of the 1916 National Defense Act and the 1903 Federal Definition for Militia; For without these additional laws the 1917 Selective Service would have been impossible to enact. These aspects of the laws in question can be viewed here.
1916 Nation Defense Act.
The 1903 Militia Definition
the 1917 Selective Service Act.
The fact is, the system that was created in 1917 required that the National Guard be conscripted first into the service of the US Army. This is a requirement of the 1916 National Defense Act and it is replicated in the 1917 Selective Service Act. Now of course the National Guard is then defined in the Dick Act of 1903. The next section of the 1917 Selective Service act then calls for 500,000 men to then be conscripted into the Army. But this section doesn't explain where these men come from as the previous section states the group consecrated comes from the National Guard. Its here that Section 79 of the 1916 National Defense Act comes into play that requires that when the Guard is conscripted the next men conscripted come from the Unorganized Militia as defined by the Dick Act.
And for those who would say the present Selective Service Act has no connection to the 1916 National Defense Act, please read Page one, Sec 451 (d)
And for those who would say the present Selective Service Act has no connection to the 1916 National Defense Act, please read Page one, Sec 451 (d)
By having the men conscripted come from the Unorganized Militia, the 1917 Selective Service Act thus had limits imposed on who could be conscripted and who couldn't. The age of the men conscripted was limited to the age of the men in the militia as defined by the Dick Act. The Selective service could further limit the age of the men conscripted as they did in the first draft of 1917, but as the final draft of World War One showed they could not expand it beyond the ages listed in the definition of militia. Under other acts added to the definition of militia from the previous militia definition of 1792, certain occupations excused men from the militia (clergy, men in the merchant marine, constabulary, members of Congress, etc.). In this last regard, the present selective service still has a list of protected occupations that involve automatic exemption from the draft.
The most obvious limitation is gender since there are no women in the unorganized militia. Females only exist in the definition of militia as members of the National Guard, which was an addition to the definition of militia in 1958 (originally only applying to Female officers). Thus the only females in the militia were in the militia because they choose to join the "volunteer" National Guard.
Catch the point, the men of the country have no choice over whether they are in the militia or not. They have a choice whether they are in the organized militia (AKA National Guard) or not, but not whether they are in the militia. Women however have that privilege, by law. Thus they do not face the risk of conscription until the government amends the definition of militia.
The most obvious limitation is gender since there are no women in the unorganized militia. Females only exist in the definition of militia as members of the National Guard, which was an addition to the definition of militia in 1958 (originally only applying to Female officers). Thus the only females in the militia were in the militia because they choose to join the "volunteer" National Guard.
Catch the point, the men of the country have no choice over whether they are in the militia or not. They have a choice whether they are in the organized militia (AKA National Guard) or not, but not whether they are in the militia. Women however have that privilege, by law. Thus they do not face the risk of conscription until the government amends the definition of militia.
Amending the Definition of Militia: The Gun Control Issue
So why won't the government amend the definition: because the gun control movement would prefer that the definition not be expanded, but extensively reduced. If gun-controlists could prohibit women from buying guns because they are women, and thus not in the definition of militia, they would do it in a minute. If the government was to then amend the definition they would literally remove the unorganized militia definition and restrict the definition to only those in the volunteer National Guard.
Consider this point about the gun control movement. In 2005 they produced a plan to end all small arms production in the United States and have the Army use what ever the government could buy on the world market. The gun control movement is fully aware that the present selective service act has shutdown controls in it.
Sec 454, (a) Paragraph 6
No persons shall be inducted for such training and service until adequate provision shall have been made for such shelter, sanitary facilities, water supplies, heating and lighting arrangements, medical care, and hospital accommodations for such persons as may be determined by the Secretary of Defense or the Secretary of Transportation to be essential to the public and personal health.
Consider the situation that the base closure legislation implemented during the Clinton Administration has had on a future draft. In the late 80s we had plenty of old bases (many built in World War two) were we could house and train conscripts. Today if we were to implement a draft the question comes where would we house (shelter) and care for these men during their training. If these requirements cannot be met the draft shuts down of its own accord. You don't even need a legal challenge, it shuts down. But if it shuts down, you can be sure a legal challenge would then be forth coming that someone in government did something wrong and thus the new draft was illegal.
At the same time there is no requirement for proper arms, or even any arms, to be provided. In Europe however there is a rule that you can't conscript men if the arms to be supplied are inferior to those previously issued. Thus if you make sure there are no equivalent arms to those previous issued the Army, the argument can be made that the draft is unconstitutional and shut it down because it isn't being uniformly applied. Granted, its a european rule: but in America today we have quite a number of people who feel we should be following European concepts in law.
For gun-controlists who also expect to claim conscientious objector for they views against firearms and firearm use, making the draft illegal is all part of the policy. Making the draft illegal is just their way of making their conscientious objector view universal. Men could still volunteer, but they would be volunteering to serve in an Army that would be devoid of arms and all other means of supporting the men in the field.
Consider this point about the gun control movement. In 2005 they produced a plan to end all small arms production in the United States and have the Army use what ever the government could buy on the world market. The gun control movement is fully aware that the present selective service act has shutdown controls in it.
Sec 454, (a) Paragraph 6
No persons shall be inducted for such training and service until adequate provision shall have been made for such shelter, sanitary facilities, water supplies, heating and lighting arrangements, medical care, and hospital accommodations for such persons as may be determined by the Secretary of Defense or the Secretary of Transportation to be essential to the public and personal health.
Consider the situation that the base closure legislation implemented during the Clinton Administration has had on a future draft. In the late 80s we had plenty of old bases (many built in World War two) were we could house and train conscripts. Today if we were to implement a draft the question comes where would we house (shelter) and care for these men during their training. If these requirements cannot be met the draft shuts down of its own accord. You don't even need a legal challenge, it shuts down. But if it shuts down, you can be sure a legal challenge would then be forth coming that someone in government did something wrong and thus the new draft was illegal.
At the same time there is no requirement for proper arms, or even any arms, to be provided. In Europe however there is a rule that you can't conscript men if the arms to be supplied are inferior to those previously issued. Thus if you make sure there are no equivalent arms to those previous issued the Army, the argument can be made that the draft is unconstitutional and shut it down because it isn't being uniformly applied. Granted, its a european rule: but in America today we have quite a number of people who feel we should be following European concepts in law.
For gun-controlists who also expect to claim conscientious objector for they views against firearms and firearm use, making the draft illegal is all part of the policy. Making the draft illegal is just their way of making their conscientious objector view universal. Men could still volunteer, but they would be volunteering to serve in an Army that would be devoid of arms and all other means of supporting the men in the field.
The CMP and SDF
The Civilian Marksmanship program, which is constantly attacked by gun-conrolists and anti-militarists has as its requirements that it exists to insure a pool of trained marksmen for possible Federal service. In short it exists to support the needs of the selective service act since the voluntary joining of the CMP doesn't automatically place you in the volunteer Army. In the late 1990s the Clinton Administration changed the program to require a new military grade AR-15 rifle for use in the shooting competitions. Thus this program essentially became an unofficial pool of both trained marksmen, and militarily serviceable arms. This is important since the CMP has no age requirements and many men who are competitors at the events are too old for the draft. Thus, they can at least be called on to donate their arms in a national emergency, to arm conscripts. This would all go away if gun-controlists have their way and both end the CMP or prohibit the now required AR-15 rifle.
As for the SDF, which are the State run organized militia of several States, these men are generally either too old for Federal service or otherwise disabled and unable to perform field service. This however doesn't change the fact that they have extensive military experience. They become operational when the National Guard is federalized, to perform the functions of the Guard while it is away on federal duty. They also serve as a cadre of officers and non-coms around which a State can build a larger militia if an emergency required the forming of a larger force. Until such situation occurs however they simply exist, though many serve as teachers and instructors for JROTC programs within the States.
Under federal law the United States government is required to supply the arms and equipment needed by a force half the size of the State's regular National Guard unit. In the last two decades these arms have been expected to be the previous CMP competition gun, the M1A. This because the rifle uses a different round then the AR-15/M-16 and looks distinctly different. But if these arms are prohibited by gun laws, the federal government will be unable to supply anything to these State forces. This in turn would endanger the Selective Service since the States will require the return of their National Guard units because the government is in breach of its own law and thus prohibiting the State having a militia. Again, where the gun-conrolists may only define the militia as the National Guard no State is going to hold to that when they are the ones being restricted. Its easy for States to ban assault weapons when they expect the Federal government to meet completely the SDF requirements. It becomes something completely different when they suddenly are told they are out of luck. This actually happened to California during both the second World War and during the Korean Conflict where the members of the California SDF (called the State Military Reserve today) had to arm themselves.
As for the SDF, which are the State run organized militia of several States, these men are generally either too old for Federal service or otherwise disabled and unable to perform field service. This however doesn't change the fact that they have extensive military experience. They become operational when the National Guard is federalized, to perform the functions of the Guard while it is away on federal duty. They also serve as a cadre of officers and non-coms around which a State can build a larger militia if an emergency required the forming of a larger force. Until such situation occurs however they simply exist, though many serve as teachers and instructors for JROTC programs within the States.
Under federal law the United States government is required to supply the arms and equipment needed by a force half the size of the State's regular National Guard unit. In the last two decades these arms have been expected to be the previous CMP competition gun, the M1A. This because the rifle uses a different round then the AR-15/M-16 and looks distinctly different. But if these arms are prohibited by gun laws, the federal government will be unable to supply anything to these State forces. This in turn would endanger the Selective Service since the States will require the return of their National Guard units because the government is in breach of its own law and thus prohibiting the State having a militia. Again, where the gun-conrolists may only define the militia as the National Guard no State is going to hold to that when they are the ones being restricted. Its easy for States to ban assault weapons when they expect the Federal government to meet completely the SDF requirements. It becomes something completely different when they suddenly are told they are out of luck. This actually happened to California during both the second World War and during the Korean Conflict where the members of the California SDF (called the State Military Reserve today) had to arm themselves.
Back to the Draft
Of course the National Guard was not conscripted for the Vietnam war, and wasn't in federal service during the peacetime draft period between the Korean war and Vietnam. Thus one would ask why the destruction of the SDF would cause any trouble at all. The problem is that the lack of service of the NG in Vietnam proved to be a major political issue during the Vietnam war. Men would be ridiculed for decades after Vietnam for serving in the Guard instead of the regular Army. George Bush had it used against him during his run for the Presidency. The result is a general, though unofficial, policy that before we draft men into service the Guard will be federalized. And this policy was seen in the Afghanistan and Iraq wars that the United States has been involved in, in the last two decades.
Was the SDF activated when the Guard went over seas in 2002, NO. Under the Federal law the SDF forces can't be activated until the Congress declares war. All the military actions of the last 60 years were USE OF FORCE resolutions (even Vietnam and Korea). You can argue they had a draft in Vietnam and Korea without a declaration of war, but as noted this action caused nothing but long term political problems and controversy. Furthermore, in Vietnam the Guard was never federalized and thus stripped from their states. With the ending of the peacetime draft in the 70s it only made it more difficult to implement a draft without a declaration of war. And if the government implements a draft it most certainly will have to have conscripted the Guard first (as per the old system). Once the guard is conscripted, and a declaration of war also made, the government must meet the requirements for supporting the SDF forces for those States requiring it. This at the same time as to find housing, shelter, etc as required under the MSSA.
The major point in this is if a Draft were to be implemented the American Civil Liberties Union have so much legal ammunition that the government is not meeting its own responsibilities to get a court to declare the action unconstitutional. The government will have an extremely difficult time defending it with the number of obvious attempts to remove built in protections originally within the Selective Service Acts. The ACLU will show the government support for gun control policies restricted the arms of the Army in an emergency and denied the States a functional militia in violation of the 2nd amendment. They will invoke the original Selective Service act and its connection to the unorganized militia and how the government in its gun laws have invoked an unwritten definition. If in fact the government writes a different definition of militia into one of its future gun laws or acts, that new definition can be argued overrides the earlier 1903 Act and thus invalidates the draft. In short the government will have to show that they haven't rewritten so many of the sub-laws to allow the government all the privileges and the people getting nothing but the shaft.
In short, its not whether we can call for a draft, but whether we can actually support a draft. Too many people view the matter as being one of just legality. But legality also resides on physical capability. One can't conscript a million men if one only has 100,000 people. If you don't have the means to support a draft, whether its arms, uniforms, or shelter- the draft can't be physically done. And too much has been done in the last 30 years to insure the means for a uniform draft can't be met. Adding women to the mix only makes the issues of uniforms, sanitation, medical care and even shelter even more difficult to meet. In order to allow women into combat units we are having to reduce the training to compensate for female capabilities. And once you have physical problems, the legal challenges will be right behind them.
Was the SDF activated when the Guard went over seas in 2002, NO. Under the Federal law the SDF forces can't be activated until the Congress declares war. All the military actions of the last 60 years were USE OF FORCE resolutions (even Vietnam and Korea). You can argue they had a draft in Vietnam and Korea without a declaration of war, but as noted this action caused nothing but long term political problems and controversy. Furthermore, in Vietnam the Guard was never federalized and thus stripped from their states. With the ending of the peacetime draft in the 70s it only made it more difficult to implement a draft without a declaration of war. And if the government implements a draft it most certainly will have to have conscripted the Guard first (as per the old system). Once the guard is conscripted, and a declaration of war also made, the government must meet the requirements for supporting the SDF forces for those States requiring it. This at the same time as to find housing, shelter, etc as required under the MSSA.
The major point in this is if a Draft were to be implemented the American Civil Liberties Union have so much legal ammunition that the government is not meeting its own responsibilities to get a court to declare the action unconstitutional. The government will have an extremely difficult time defending it with the number of obvious attempts to remove built in protections originally within the Selective Service Acts. The ACLU will show the government support for gun control policies restricted the arms of the Army in an emergency and denied the States a functional militia in violation of the 2nd amendment. They will invoke the original Selective Service act and its connection to the unorganized militia and how the government in its gun laws have invoked an unwritten definition. If in fact the government writes a different definition of militia into one of its future gun laws or acts, that new definition can be argued overrides the earlier 1903 Act and thus invalidates the draft. In short the government will have to show that they haven't rewritten so many of the sub-laws to allow the government all the privileges and the people getting nothing but the shaft.
In short, its not whether we can call for a draft, but whether we can actually support a draft. Too many people view the matter as being one of just legality. But legality also resides on physical capability. One can't conscript a million men if one only has 100,000 people. If you don't have the means to support a draft, whether its arms, uniforms, or shelter- the draft can't be physically done. And too much has been done in the last 30 years to insure the means for a uniform draft can't be met. Adding women to the mix only makes the issues of uniforms, sanitation, medical care and even shelter even more difficult to meet. In order to allow women into combat units we are having to reduce the training to compensate for female capabilities. And once you have physical problems, the legal challenges will be right behind them.