by Christian Gomez
Our country is experiencing a period of domestic unrest amid economic uncertainty and deep political divisions. Market volatility, rising consumer prices resulting from the Federal Reserve inflating the money supply, foreign wars affecting energy prices, and renewed debates over tariffs and monetary policy have intensified public anxiety. At the same time, immigration-enforcement raids and protests in major cities have raised difficult questions about public unrest, federal authority, and the proper role of military force relative to domestic law enforcement within a constitutional republic.
In response to widespread, communist-contrived civil unrest and resistance to immigration enforcement, President Donald Trump has deployed National Guard units into various U.S. cities, in some instances over the objections of state governors. The White House justified these domestic deployments as necessary to restoring law and order, protecting federal buildings, and ensuring that immigration laws are enforced.
These actions necessitate careful constitutional scrutiny rather than partisan reflex. Law-enforcement professionals, especially at the local and state levels, should ask a fundamental question: Do these deployments align with the Constitution’s framework of federalism and the Founding Fathers’ understanding of the militia? To answer, one must carefully distinguish between two starkly different institutions: the modern National Guard, and constitutional state militias as intended by the Founders.
Administrative Action
According to the Trump administration, surges in illegal immigration, resistance to deportation operations, vandalism of federal property, and violent protests warrant federal intervention. While delivering a speech commemorating the 250th anniversary of the U.S. Army at Fort Bragg in North Carolina, Trump remarked of his domestic federal deployments:
I want to applaud the courage and the strength of the incredible troops who are right now standing guard to protect federal property and personnel and uphold the supremacy of federal law. That’s what they’re doing. They’re protecting our ICE agents. They’re protecting the police in Los Angeles. The head of the police in Los Angeles, a good man. I hear a good man, but he was actually saying we really did need this help. It had gotten away from them. It had long gotten away, and we gave it to him.
Immigration and Customs Enforcement (ICE) operations have intensified across the country, and federal agents have been deployed in larger numbers to urban areas. Where unrest has followed those enforcement actions, the White House has relied on statutory authority permitting the federalization of National Guard units under certain conditions.
Under 10 U.S.C. § 12406 and related statutes, the U.S. president may call National Guard units into federal service (i.e., “federalize” them) in order to repel an invasion by a foreign nation, suppress rebellion against the U.S. government, or execute federal law when he is unable to do so with regular forces. The administration’s reasoning for federalizing and deploying the National Guard is straightforward: Immigration enforcement is a federal responsibility. Therefore, when local jurisdictions refuse to cooperate with federal immigration enforcement or when unrest threatens federal property and personnel, the executive branch asserts, it has both the authority and obligation to act.
The concern for constitutionalists is not whether immigration laws should be enforced. The Constitution grants Congress authority over naturalization and foreign commerce. Furthermore, Article IV, Section 4 of the Constitution guarantees that the federal government shall protect every state against invasion. Nor is the concern whether violence and vandalism should be stopped. The protection of private property is essential to liberty. The concern is structural: Does the federal deployment of military forces into American cities — particularly when a gubernatorial request is absent — erode federalism and
undermine liberty?
Expanding Federal Law Enforcement
The creation of the Department of Homeland Security (DHS) in 2002 was the largest expansion of the federal bureaucracy since the original Department of War was restructured into the Department of Defense in 1947. And since then, federal law enforcement has grown substantially in size and scope. Agencies such as ICE and Customs and Border Protection (CBP) now operate nationwide with personnel, agents, and budgets that rival — and in some cases exceed — traditional federal investigative bodies.
Despite existing for only a little over 23 years, the CBP is the nation’s largest federal law-enforcement agency, larger than even the FBI. “With more than 60,000 employees, U.S. Customs and Border Protection, CBP, is one of the world’s largest law enforcement organizations,” its website boasts.
This rapid growth of domestic federal law enforcement reflects a broader pattern: the steady accumulation and centralization of law-enforcement authority in Washington, D.C. Over the past century, the federal government has expanded from a republican structure with few and defined powers, to an administrative state with broad regulatory and enforcement powers. For local police officers and county sheriffs, this presents a dilemma. While cooperation between federal and local authorities can be beneficial, increasing the federal footprint risks eclipsing and overstepping local autonomy and jurisdiction.
In a constitutional republic such as ours, law enforcement is most responsive when it remains closest to those it is charged to serve and protect. The rapid growth of federal law enforcement raises a fundamental question: Does the deployment of federally controlled military units into American cities mark a significant step toward normalizing centralized domestic federal force?
Constitutional Blueprint
To evaluate domestic National Guard deployments, one must begin with the Constitution. Article I, Section 8, Clauses 15 and 16 grant Congress the following powers:
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 Congress.
These clauses clarify how Congress — not the president — is given the power to call up state militias. But the militia belongs fundamentally to the states. Congress may provide structure and discipline, but it can only call up the militia for at least one of three narrow reasons:
1. Executing the laws of the Union;
2. Suppressing insurrections; and
3. Repelling invasions.
Even under those circumstances, the militia was not intended or designed to be a standing federal force. It was a state-based citizen force, temporary in its congressionally authorized activation and local in its composition.
Who Is the Militia?
There is a general misconception about who or what the “militia” is. Some associate it with fringe, militant “anti-government” groups planning to overthrow the federal government. Others take the term to mean the National Guard of each state. Neither interpretation is accurate.
While organized and composed of citizens of a single state, a true constitutional state militia is under the jurisdiction of Congress. For the Founders’ understanding of the term “militia,” one must turn to the Second Amendment, which declares:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Whereas most gun-rights activists focus on the second half of the amendment, the first half is often overlooked: “A well regulated Militia, being necessary to the security of a free State.” The Framers considered the militia to be “crucial to the security of a free State.” In other words, they viewed the militia as necessary for freedom.
Who did the Founders say were the militia? Forgotten Founding Father Tench Coxe, writing under the pseudonym “A Pennsylvanian” in the February 20, 1788 issue of the Pennsylvania Gazette newspaper, provided the following definition:
Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom[?] Congress have [sic] no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…. The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
During the debates at the Virginia Ratifying Convention in June 1788, George Mason, a member of the Virginia House of Delegates who served as a delegate to the Constitutional Convention of 1787, likewise said:
I ask, Who are the militia? They consist now of the whole people, except a few public officers.
Historically, the militia encompassed every able-bodied male citizen of a certain qualifying age as determined by each state who was armed, trained, and organized under his state’s authority. It was not a small, rag-tag volunteer outfit. It was the body of the people capable of bearing arms.
Over time, the militia of the Founders gradually faded. It was ultimately supplanted by the modern National Guard with the passage of the Efficiency in Militia Act of 1903. Prior to the turn of the 20th century, state militias were largely independent forces composed of armed, able-bodied citizens organized and officered by their respective states. The 1903 law, however, reorganized these militias into what became the modern National Guard, establishing a dual state-federal structure in which National Guard units receive federal funding, arms, equipment, and standardized training in exchange for being subject to
federal activation.
While the Militia Act of 1903 may have improved uniformity and readiness, it also significantly increased federal influence over forces that had once been primarily under state control. Subsequent legislation further integrated the National Guard into the regular armed forces. For example, the National Defense Act of 1916 expanded federal authority over the National Guard and further standardized its training and organization under the War Department, making it vastly distinct from the original state militia envisioned by the Founders.
National Guard Versus Constitutional Militia
The modern National Guard fundamentally differs from the Founders’ militia in its composition, control, and purpose. In terms of composition, the National Guard consists of voluntary enlistees and is limited in number, to roughly a few hundred thousand nationwide. A constitutional militia, on the other hand, included virtually the entire able-bodied male population of military age within each state. In terms of manpower, its scale was vastly larger and inherently decentralized.
Despite being under state command, all firearms, ammunition, and other equipment of the National Guard are the sole property of the federal government, specifically the Department of Defense. When not in use, National Guard weapons are stored in government armories and remain under centralized federal control. Under the Founders’ system, militia members were generally expected to supply their own arms and maintain them in their homes so they would be ready when called up to service.
The National Guard functions as a reserve component of the U.S. Army and Air Force, and is routinely deployed overseas to foreign wars. The constitutional militia, by contrast, was solely a domestic force; it was never intended for deployment overseas or in foreign conflicts. Article I, Section 8 restricts use of the militia to executing federal laws, suppressing insurrections, and repelling invasions. This distinction is profoundly important. When National Guard units are federalized and deployed domestically, they operate as extensions of the armed forces of the federal government, not as locally officered citizen militias under state control.
Force and Federalism
Historically, U.S. presidents have relied on the Insurrection Act of 1807 (particularly 10 U.S.C. §253) to deploy federal troops or federalized National Guard units within the United States. The law permits such deployment when states are “unable, fail, or refuse” to safeguard the people’s inherent rights, privileges, or immunities protected by the Constitution or to suppress insurrection.
From a constitutionalist perspective, this authority should be interpreted narrowly. The Founders feared centralized military power or a “standing army” because of how it could be used against the states and the people. Federal armies seldom exceeded a fraction of the population. Therefore, constitutional state militias — composed of all armed, able-bodied men — could easily serve as a bulwark against such a potential tyrannical standing army.
James Madison, in The Federalist, No. 46, made the very same point. He argued that the states, supported by armed citizens, would provide a formidable barrier against federal overreach, writing:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms…. To these would be opposed a militia … officered by men chosen from among themselves, fighting for their common liberties.
The balance between state militias and a small standing army was meant to deter tyranny. However, when the federal government unilaterally deploys military forces into cities, the structural safeguard envisioned by Madison is weakened.
The American system rests on dual sovereignty. The states are not mere administrative subdivisions of Washington; they retain the powers inherently reserved to them under the 10th Amendment. Traditionally, National Guard deployments within a state fall under one of three statuses:
• State Active Duty (under the governor’s control);
• Title 32 status (federally funded but controlled by the governor); or
• Title 10 “federalization” (under presidential control).
The constitutional concern intensifies when National Guard units shift from state control under the governor to federal control under the president and operate in local communities without local or state consent.
For county sheriffs and local police chiefs, this shift represents more than just administrative procedure. It fundamentally alters accountability. A federally commanded National Guard unit answers to Washington, not to local elected officials or the community in which they are deployed. Centralization may promise efficiency — hence the temptation to employ it — but it does not guarantee constitutional fidelity.
None of this denies the reality of social unrest or the legitimacy of enforcing federal immigration laws. The vandalization or destruction of federal property, assaults on agents, and obstruction of lawful operations must be addressed. But the cure must not be worse than the disease; it must not erode the constitutional framework designed to preserve liberty.
Utilizing federal military forces for ordinary domestic law enforcement risks eroding federalism and local autonomy, and in their place normalizing a new relationship between the federal government, the states, and the people that is incongruent with the Constitution and the principles of republican self-government.
Passed in 1878, the Posse Comitatus Act reflects the long-standing American suspicion of using federal military forces in routine domestic law enforcement. Even when such domestic military and National Guard deployments are lawful under statute, they should be rare, temporary, and clearly tied to a constitutional necessity, lest they set a precedent for normalizing the military as a federal police force.
The Constitution Is the Solution
When it comes to immigration enforcement, the long-term solution lies not in militarization, but in restoring constitutional fidelity. This can be achieved by:
• Securing our nation’s borders to prevent further unauthorized entry, thereby reducing the need for future domestic raids and deportations;
• Ending federal and state programs that incentivize illegal entry;
• Respecting state sovereignty;
• Supporting local law enforcement and keeping them independent from the federal government; and
• Reducing state and local dependency on federal funds that often come with strings attached, resulting in expanded federal influence, oversight, training, standards, or control over local police departments and sheriff’s offices.
Echoing the Second Amendment’s recognition that a “well regulated Militia [is] necessary to the security of a free State,” it would behoove our Republic to restore the Founders’ understanding of constitutional state militias. The Founders did not trust concentrated power, even when it was wielded by leaders whom they admired. Instead, they decentralized authority, dispersing it across federal and state entities. They entrusted the responsibility of domestic defense in the hands of the people, who, as Madison pointed out in The Federalist, No. 46, would be “fighting for their common liberties.” And most of all, they limited the circumstances during which the military could be used domestically.
The modern National Guard is not the constitutional militia of 1787. It is a hybrid force — partially controlled by the states, but ultimately an extension of the federal military. Domestically deploying it into cities without consideration of the constitutional and long-term implications risks further accelerating a century-long trend toward increased centralization of power in the federal government, namely the executive branch.
We do not have to choose between open borders and a federal police state, nor between chaos and militarization. The prudent path is the one envisioned by the Founders: constitutional fidelity, state sovereignty, local control, and an active and educated
citizenry. Only by restoring the Founders’ framework can we ensure that law enforcement remains local and in service of the people, rather than a federal force for tyranny.