U.S. Constitution, Article 1, Section 10, third clause:
“Section 10, Clause 3 (Compact Clause): 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.”
Along with the rest of Section 10 as well as other provisions of the Constitution, the broad principle is established that the Federal government is to have a monopoly of foreign relations. Most especially, a monopoly on whether we are in a state of armed conflict with a foreign power. The states are not to have their own state armies or state navies (without the consent of Congress).
Ok, fine. The question then is, what constitutes “troops”? At the time the Constitution was written professional police forces hadn’t been developed yet. One the one hand you could claim that most police are neither trained nor armed for open combat. But on the other hand, police are professionals employed and armed by the State to use deadly force when necessary. That might effectively be what the Framers had in mind by the term “troops”.
Not that there’s a snowball in Hell’s chance that Congress would ever want to ban local law enforcement, but could they, if for example somehow the Federal government ever wanted to make states and localities dependent upon (and therefore obedient to) the Federal government for protection?
Except that 1. is simply a flat assertion; whaddya do if someone says “yes they are”? You and I might not think police are troops, but it could be argued that they qualify under A1S10C3. And as for 2. the whole of section 10 is devoted to what powers the states DON"T have, so that’s no defense either.
You won’t find much in the constitution about what powers states do have.
I think the Supreme Court would be the ultimate deciding factor on whether police are troops. I can’t imagine that they would say they are.
Also, the clause prevents states from having troops, but doesn’t necessarily prevent cities and towns from doing it. So even if the Supreme Court went nuts and ruled that Congress had the right to ban state law enforcement organizations, there’s nothing that prevents the city (which probably has most of the law enforcement officers) from keeping a police force.
I’d say it’s a very long stretch to call police “troops” - especially given the precedent of Posse Comitatus. If the military is prohibited from performing the duties of law enforcement, that sets a pretty solid standard that troops != police.
Except that towns and cities can only be incorporated by charters issued by the state government, so they can’t claim to be independent governments the states have no control over. Put it another way: incorporation delegates police power to the municpal government, and the state couldn’t delegate a power the SC ruled it didn’t have.
The term Posse Comitatus is used in a couple of different ways. If you’re referring to The Posse Comitatus Act of 1878, that’s a self-imposed limitation of federal authority which in principle could be overturned by federal legislation again.
Police forces are not used as soldiers in foreign wars.
The Bill of Rights was written to prevent this kind of thing. Specifically, the Second Amendment prevents Congress from disarming “the people,” because the populace need to have some responsible local body (whether themselves or a professional police force) carry arms in the interest of local security. Sadly, there were no professional police forces in the English-speaking world, or the Second would have specifically mentioned them. So it might be “constitutional” in a future age both less federalist & madder than ours. But it’s clearly against the intent of the Bill of Rights.
And state college football teams are groups of highly-trained young people who are organized and uniformed by the state and sent on expeditionary maneuvers to capture territory held by the uniformed representatives of another state.
Focusing on the points of commonality only takes one’s analysis so far. The differences can be crucial as well.
Well this gets to the heart of the reason I raised the question to begin with; I just didn’t want to mention it up front because all 2nd Amendment threads get derailed at the drop of a pin. What I was leading towards was a two-part question: (1). Does Article 1 Section 10 Clause 3 mean that states and local governments could be forbidden from possessing any standing, professional armed forces? and (2). Does this therefore mean that the Second Amendment guarantees a private right to keep and bear arms, so that local governments will have available privately armed citizen posses and militias to keep order (given that professional constabularies didn’t exist at the time)?
However your response shows me that that argument doesn’t address the real philosophical divide over the interpretation of the 2nd. Apparently the question is whether “the people” means individuals, or collectively as embodied in a republican government. I personally believe that the collectivist theory is a modern construct of the people as “the masses”; but that’s another debate entirely. I’ll reframe my question more directly then: for purposes of reconciling A1S10C3 with the 2nd Amendment, what exactly is the difference between a “militia” and “troops”?
The OP is well taken. Local and state government have SWAT teams with full auto weapons, tear gas, etc. not at all unlike what the troops in Iraq would have.
Now just because they’ve divided them into groups that will/won’t fight in foreign wars rings pretty hollow to me as far as original intent of the framers.
That’s perfectly true, but what then other than intent makes them different? The impression I get is that the Framers envisioned that for projection of force outward the federal government alone would have a professional standing army. And that for maintenance of security within, the states would rely on the decidely non-professional institution of civilian posses and militias: adequate for keeping order but deliberately NOT suited for long-term or long-range projection of power.
Actually, the State Guards are legally distinct from the militia (which for purposes of the draft is every able-bodied man). They are state troops which cannot be federalized, and exist “by consent of Congress”; they’d be the first to go if Congress ever decided to exercise Clause 3.
And yet, they’re still not armies. They are deployed in situations where their firepower and tactics are needed in policing actions because they are found to be effective and criminals can be very well armed these days.
I don’t think their equipment is a requirement for a military force. Look at some of the armies in some African wars - they’re armed with AK-47s, machetes, and Toyota pick up trucks. No one doubts they are an army, but they don’t have the level of equipment that a big city SWAT team.
Can I get a cite on this? The government was certainly issuing warrants and arresting people for crimes. How did they do this without law enforcement personnel?
Ah, ok. So, I guess you’re asking whether the Feds could ban modern police forces, rather than whether the Feds could ban state/local law enforcement? Is that correct?
