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A state governor acts as that state's Commander in Chief and gets full and ultimate control over the state's militia(except when that militia is federalized). In the modern day, "state militia" usually means National Guard, but must it always and only mean National Guard? For example, could the state governor of Texas call upon the Three Percenters or some other border patrol local militia in a time of civil unrest and if so, would that militia be legally compelled to obey? Could members of unofficial state militias who are called upon by the state governor be charged with a crime(desertion, being absent without leave, etc.) if they fail to obey?

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  • Why would a governor be able to call upon a private organization and civilians?
    – Joe W
    Commented May 24 at 15:49
  • @JoeW I'm not sure if he can. From the Virginia Constitution: "§ 44-8. Governor as Commander in Chief. The Governor shall be Commander in Chief of the armed forces of the Commonwealth, and shall have power to employ such forces to repel invasion, suppress insurrection, and enforce the execution of the laws." It is not clear whether this is all armed forces of the state or only those legally registered as part of a larger military. Commented May 24 at 15:52
  • I think that term is always interpreted as meaning the organized military. Just as POTUS is the CiC of the national military forces.
    – Barmar
    Commented May 24 at 17:49
  • I think you missed my point, just because a group calls themselves a militia it doesn’t make them one and not just ordinary citizens.
    – Joe W
    Commented May 24 at 18:32

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A state governor acts as that state's Commander in Chief and gets full and ultimate control over the state's militia(except when that militia is federalized). In the modern day, "state militia" usually means National Guard, but must it always and only mean National Guard?

Many states, including Florida, Texas and Virginia, have a small, organized state militia in addition to the National Guard, sometimes called a state guard or state defense force, but similar in character to it, which the Governor can mobilize. Many of these were created during World War II to provide a force that the Governor could mobilize for disaster response and riot control at a time when the state's National Guard had already been called up and was serving in World War II.

Some state laws and/or constitutions recognize the concept of an unorganized militia, consisting of able bodied men (or sometimes just people) in a designated age range. For example, Virginia defines the unorganized militia as follows:

§ 44-1. Composition of militia.

The militia of the Commonwealth of Virginia shall consist of all able-bodied residents of the Commonwealth who are citizens of the United States and all other able-bodied persons resident in the Commonwealth who have declared their intention to become citizens of the United States, who are at least 16 years of age and, except as hereinafter provided, not more than 55 years of age. The militia shall be divided into three classes: the National Guard, which includes the Army National Guard and the Air National Guard; the Virginia Defense Force; and the unorganized militia.

§ 44-4. Composition of unorganized militia.

The unorganized militia shall consist of all able-bodied persons as set out in § 44-1, except such as may be included in §§ 44-2 [composition of national guard] and 44-54.6 [Virginia defense force] and except such as may be exempted as hereinafter provided.

But an "unorganized" militia is basically the state equivalent of the federal Selective Service System, i.e. a designated group of people who are eligible to be conscripted into military service if a military draft is imposed by the state government with separate legislation. It is not a private military group.

For example, could the state governor of Texas call upon the Three Percenters or some other border patrol local militia in a time of civil unrest and if so, would that militia be legally compelled to obey? Could members of unofficial state militias who are called upon by the state governor be charged with a crime (desertion, being absent without leave, etc.) if they fail to obey?

Private groups that style themselves as militias are not subject to being called up by a state governor, and are not subject to military justice.

All 50 U.S. states make some forms of private paramilitary activity a crime. Federal legislation to this effect has been proposed but not passed.

For example, twenty-nine states have statutes that prohibit groups of people from organizing as private military units without the authorization of the state government.

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Organizing and participating in an unofficial private militia in those states is a crime in the same category as sedition and treason. Similarly, twenty-eight states make private paramilitary activity a crime.

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Organizing or participating in a group like the Three Percenters, to the extent to amounts to a private militia, is a felony in most U.S. states.

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