Army bans political activity by Missouri state senator

[Terran]

Concerning the MO Senator who, in effect, cast the deciding vote in last week's veto override of the concealed gun bill :

Army bans political activity by Missouri state senator
Sat Sep 20, 7:18 AM ET

By TIM HOOVER , The Kansas City Star

JEFFERSON CITY - U.S. Army officials have directed state Sen. Jon Dolan to comply with a military directive forbidding political activity while on active duty, Dolan said Friday.

The directive apparently refers to future political action, however. A military spokesman said Friday that an investigation into Dolan's vote last week in the Missouri legislature continued.

<snip>

Missouri Adjutant Gen. Dennis Shull, a Holden appointee who commands the state's National Guard, advised Dolan before he voted that his doing so might violate military directives.

According to the directive, an officer shall not "exercise the functions of a civil office" while "under a call or for a period in excess of 270 days."

Dolan, a public affairs officer for the Joint Task Force at Guantanamo Bay, Cuba, said he thought the rule did not apply to him because he had not yet served more than 270 days of his active duty. His orders said he was not to serve more than 365 days.

more

[ayeshahaqqiqa]

1. According to KSMU

the local NPR station, at least two of the state Senators who voted for the bill were gun dealers. They didn't think it was conflict of interest, although they admitted that passage of the bill would probably increase their business in gun sales.

[MuseRider]

2. I heard a bunch

of talk about this on some KC station last week. Quite a few people were pretty steamed about this but they knew that nothing would be done. Apparently it was not illegal in Missouri law only it is not allowed by Army rules. They all figured he would get away with it.

[SoFlaJets]

3. DON'T YOU UNDERSTAND!!!!!!!!!!!!!!!!!!!!

the rules apply not to the GOP they are exempt!

[RoeBear]

4. I'd have expected my Democratic...

..legislators to do the same thing. And we'd all be bitching if they didn't stick their neck out and make a vote.

[Terran]

10. No

I would expect that my Dem legislators would obey laws that they were subject too, including military law.

[Superfly]

12. Fuck it, nevermind

blah

[RoeBear]

14. Isn't that kind of similar...

...to what the Democratic Texas legislators did when they drove off to a neighboring state?

[Terran]

15. I don't know

Anyone in Texas know if there's a law requiring state legislators to show up for a vote? If there is, then I would have to agree. If not, then not.

[RoeBear]

16. I didn't keep up with...

...the whole situation, IIRC if they hadn't gone out of state the Rangers would have picked them up and 'forced' them to appear.

[jody]

5. This incident opens Pandora's box because it says no officer in the

Guard or Reserve may hold an elective or appointed office in a state government because "that employment requires him to be separated from his organization, branch, or unit, or interferes with the performance of his military duties."

TITLE 10 > Subtitle A > PART II > CHAPTER 49 > Sec. 973. - Duties: officers on active duty; performance of civil functions restricted

[DoNotRefill]

6. Hmmmm....

given that the Constitution states that officers are to be appointed by State Governors (obviously an appointed position) we have an interesting dilemma.

[jody]

7. Excellent point. I had not considered that, eom

[DoNotRefill]

8. Here's something else....

if those officers can NOT hold an appointed position while on active duty for the National Guard, doesn't that argue eloquently that the National Guard is NOT the so-called state militia?

[jody]

9. Absolutely. The only true state militia is the "unorganized militia". eom

[BullDozer]

11. It would indeed reinforce that

doesn't that argue eloquently that the National Guard is NOT the so-called state militia?

It certainly would add another log to that fire.

Recently to reinforce that same arguement I used the 1990 Supreme Court case Perpich vs. Department of Defense. Then Minnesota Gov. Rudy Perpich claimed the DoD violated the Constitution when it ordered the Minnesota National Guard (which he claimed was the 'state militia') to duty outside the state without his consent or that of the state legislature.

The Supreme Court ruled against Perpich. It held the National Guard is an integral component of the US Army Reserve system (it has been since 1916). It further supported its ruling by specifying the difference between the “special militia” (in this case the Minnesota Guard) instead of the “general militia” (citizens with privately procured and owned arms) as expressed in the 2nd Amendment.

Since 1933 all persons who have enlisted in a State National Guard unit have simultaneously enlisted in the National Guard of the United States. Their National Guard enlistment (Federal) takes priority.

[jody]

13. The Perpich decision contains a caveat statement as follows.

QUOTE
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. 22 The Federal Government provides virtually all of the funding, the material, 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. 23 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. 24 Moreover, <496 U.S. 334, 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. 25 <496 U.S. 334, 353> {emphasis added}
UNQUOTE

The decision seems to acknowledge a governors authority to veto a federal decision if activations "interfere with the State Guard's capacity to respond to local emergencies". In the present activations, some states have almost their entire National Guard units activated leaving those states unable to respond to emergencies.

Comments please.

[happyslug]

17. First the US Government can call up the Militia.

The problem you have is that the Constitution mention three types of soldiers "Troops" "State Troops" and "Militia" and than does NOT define those terms.

Of the three terms, "State Troops" is the only one NOT used today. I have pointed out before that the National Guard better reflects "State Troops" than Militia but Congress has preferred to Call the National Guard "Militia" instead of "State Troops".

When I read the case, the phase that caught my Attention was the Courts mention of "Dual Enlistments" and that such "Dual Enlistments" were NOT being challenged. In fact BOTH sides seems to have stipulated to the constitutionality of such Dual Enlistments.

For the people who do not know what I am talking about, since 1933 when someone enlists into the National Guard he joins TWO forces at the same time, first his state National Guard, and second, the "National Guard of the United States" (When I was in it was referred to the Army Reserve National Guard i.e. ARNG but in the opinion written by Judge Stevens he calls it the "National Guard of the United States, NGUS).

The two enlistment are as follows, the first enlistment is into the "militia" of the state, while the second enlistment is into the US Army.

The problem with this is the Constitution is clear on one thing about the Militia, ALL Militia officers are to be appointed SOLELY by the States. The dual enlistment system permits the Federal Government to have a say in the Officers of the National Guard and thus on its face UNCONSTITUTIONAL. The problem for the Governor of Minnesota he still wanted the Federal Funding that came with the Dual enlistment system, but wanted to be able to veto the use of the National Guard outside his state.

The Dual Enlistment system is the price for Federal Aid to all of the States's National Guards. To challenged it would have meant the lost of Federal Funding for the Minnesota National Guard, and for the rest of the State's National Guards. Thus the Governor Stipulated that he was NOT challenging the Dual Enlistment system.

My question is why did the COURT bring up the Dual Enlistment system and why stress that this case did not address the issue of the Dual Enlistment system? Could it be that the members of the Court decided that the National Guard can NOT be militia because of the Dual Enlistment problem? If the National Guard is NOT the Militia what is it? Remember ALL NINE MEMBERS OF THE COURT Agreed to this decision thus all nine agreed to the language involving the Dual Enlistment system, why?

I think I know, the Court is ready to rule that the National Guard is NOT the Militia but a branch of the US Army (Probably even to the extent to rule that the National Guard are the "State Troops" mentioned in the Constitution). In the Constitution the States can have "Troops" but only with permission of Congress and by implication Congress can impose any restriction or requirement on those State Troops as part of Congress's grant of Permission. That would have been a better way to decide the Case, but the Governor stipulated that he was NOT challenging the Dual Enlistment system. With that Stipualtion the Court than could do the same ruling based on the Dual Enlistment system. i.e. When a person enlists he enlists into his state militia AND the US Army (as a reservist). Under the Dual Enlistment system Congress can call up ANY National Guard member or unit Congress wants. Given that power Congress can order those troops out of the Country for training and the Governor of the State where the National Guard unit is from can NOT object.

Now I use the term Congress, for Congress sets the Statute. The President will order the actual training, but such training orders is based on the Power of Congress to authorize such training. Thus I used the term "Congress" above instead of the term "Federal Government" or the "President".

Please note another way to look at this case is that the Court, once both sides stipulated that there was no challege to the Dual Enlistment system, just went by the clear langauge of the Statute. The Court has a long history of perferring statutory intepetation that upholds a law, than consitutional intepetation regarding a statute. Once the only real consitutional question was agreed by all sides NOT to be in question, the consitution permits the Federal Government to train the Militia as Congress sees fit and thus the same result as if the Court had found the National Guard was State Troops instead of Militia.

My comment is why not say that upfront i.e. "The Consitution says Congress can train and organze the Militia as it sees fit (Except for naming of the Militia's officers which is reserved to the States) and given that broad power the Governor has no standing to challege HOW the Militia is being trained or organized". Short to the point, settles the issue, why bring up the Dual enlistment system? Something was going on among the Justices that indicate some concern that the National Guard is NOT the "Militia" named in the Consitution.

For the actual wording I cam citing see the following:

"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 non-emergency conditions, and in part on the express language in the 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. n19 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.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n19 "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 Petitioner 9 (footnote omitted)."

[leetrisck]

18. Separate from the Dolan problem is the part

of the new Missouri law that says anyone 23 yrs & up can carry a loaded gun in the glove box without meeting any of the other criteria of the law - no background, training, etc. This was not in the original bill that Holden vetoed (have a copy). Does anyone know who got that put into the law. Even sheriff and police depts were unaware that provision was in there and very, very unhappy about it.