Reports from the Empire State indicate that the National Guard is assisting local law enforcement in Albany, that state’s capital city, to search and seize weapons from citizens — an apparent violation of the Fourth Amendment and the Posse Comitatus Act.
The unique charter of the National Guard creates a force that is a “joint reserve component of the United States Army” and therefore it is proscribed from exercising police power (the exclusive province of the state and the municipalities thereof) except under the very limited circumstances set forth in the Constitution and the Posse Comitatus Act.
As with any act of Congress, the Posse Comitatus Act may be repealed by subsequent act of Congress. In the case of the Posse Comitatus Act, the John Warner National Defense Authorization Act of 2007, signed into law by President George W. Bush on October 17, 2006, amended the law by adding the following language: “The President may employ the armed forces to restore public order in any State of the United States the President determines hinders the execution of laws or deprives the people of a right, privilege, immunity, or protection named in the Constitution and secured by law or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”
Fortunately for our Republic and the rule of law that has kept us free, the sweeping changes made by the Warner Act were completely repealed by passage of the National Defense Authorization Act for Fiscal Year 2008. Accordingly, the present state of the applicable law governing the use of federal troops in matters of domestic law enforcement is the Insurrection Act of 1807.
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