Constitution of Virginia

Article I - Bill of Rights

Section 13. Militia; standing armies; military subordinate to civil power.

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The Code of Virginia

44-1. Composition of militia.

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

44-2. Composition of National Guard.

A. The National Guard shall consist of the regularly enlisted militia and of commissioned and warrant officers, who shall be residents of the Commonwealth of Virginia and shall fall within the age limits and qualifications as prescribed in existing or subsequently amended National Guard regulations (army and air), organized, armed and equipped as hereinafter provided. Upon original enlistment members of the National Guard shall not be less than seventeen nor more than fifty-five years of age, or, in subsequent enlistments not more than sixty-four years of age. All enlistments in the National Guard of persons under the age of eighteen years made prior to June 27, 1958, shall be held, and the same are hereby declared valid and effective in all respects, if otherwise valid and effective according to the law then in force. B. Notwithstanding the above, persons otherwise qualified but residing outside the Commonwealth of Virginia, may enlist or serve as commissioned or warrant officers in the National Guard.

44-3. Composition of naval militia.

The naval militia shall consist of the regularly enlisted militia between the ages of eighteen and forty-five years, organized, armed, and equipped as hereinafter provided, and commissioned officers between the ages of eighteen and sixty-four years; but enlisted personnel may continue in the service after the age of forty-five years and until the age of sixty-four years, provided the service is continuous.

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, 44-3, and 44-54.6, and except such as may be exempted as hereinafter provided.

44-5. Exemptions from militia duty.

In addition to those exempted by the laws of the United States, the following persons shall be exempt from military duty under a state call: (1) The officers, judicial and executive, of the governments of the United States and the Commonwealth of Virginia. (2) The members of the General Assembly of the Commonwealth of Virginia and of the Congress of the United States. (3) Persons in the active military or naval services of the United States. (4) Customhouse clerks. (5) Persons employed by the United States in the transmission of the mail. (6) The judges and clerks of courts of record. (7) The mayor and councilmen of incorporated cities and towns. (8) Members of the governing bodies of counties. (9) Sheriffs, United States district attorneys, attorneys for the Commonwealth and city attorneys. (10) [Repealed.] (11) Lighthouse keepers. (12) Marine pilots. (13) [Repealed.] (14) All persons who because of religious belief shall claim exemption from military service, if the conscientious holding of such belief by such person shall be established under such regulations as the President of the United States shall prescribe, shall be exempted from militia service in any capacity that the President shall declare to be combatant. (15) Such other persons as may be designated by the Governor in the best interests of the public and of the Commonwealth.

44-52. Dismissal or dishonorable discharge.

No sentence of dismissal from the service or dishonorable discharge, imposed by a National Guard courts-martial not in federal service, shall be executed until approved by the Governor. Any officer convicted by a general courts-martial and dismissed from the service shall be forever disqualified from holding a commission in the militia.

44-75.1. Militia state active duty.

A. The Governor or his designee may call forth the militia or any part thereof to state active duty for service in any of the following circumstances: 1. In the event of invasion or insurrection or imminent threat of either; 2. When any combination of persons becomes so powerful as to obstruct the execution of laws in any part of this Commonwealth; 3. When the Governor determines that a state agency or agencies having law-enforcement responsibilities are in need of assistance to perform particular law-enforcement functions, which functions he shall specify in his call to the militia; 4. In the event of flood, hurricane, fire or other forms of natural or manmade disaster wherein human life, public or private property, or the environment is imperiled; 5. In emergencies of lesser magnitude than those described in subdivision 4, including but not limited to the disruption of vital public services, wherein the use of militia personnel or equipment would be of assistance to one or more departments, agencies, institutions, or political subdivisions of the Commonwealth; 6. When the Governor determines that the National Guard and its assets would be of valuable assistance to state, local or federal agencies having a drug law-enforcement function to combat the flow of or use of illegal drugs in the Commonwealth, he may provide for the National Guard or any part thereof to support drug interdiction, counterdrug and demand reduction activities within the Commonwealth, or outside the Commonwealth under the National Guard Mutual Assistance Counterdrug Activities Compact. In calling forth the National Guard under this section, the Governor shall specify the type of support that the National Guard shall undertake with state, local or federal law-enforcement agencies. Once called forth by the Governor, the National Guard is also specifically authorized to enter into mutual assistance and support agreements with any law-enforcement agencies, state or federal, operating within or outside this Commonwealth so long as those activities are consistent with the Governor's call. All activities undertaken by the National Guard in the areas of drug interdiction, counterdrug and drug demand reduction shall be reported by the Adjutant General's office to the Governor and reviewed by the Governor no less frequently than every three months; and 7. When the Governor or his designee, in consultation with the Adjutant General, determines that the militia or any part thereof is in need of specific training to be prepared for being called forth for any of the circumstances expressed in subdivisions 1 through 6 above. Such training may be conducted with a state or federal agency or agencies having the capability or responsibility to coordinate or assist with any of the circumstances set forth in subdivisions 1 through 6 above. B. The Virginia National Guard shall be designated as a state law-enforcement agency for the sole purpose of receiving property and revenues pursuant to 18 U.S.C. 981(e) (2), 19 U.S.C. 1616a, and 21 U.S.C. 881(e) (1) (A).

44-76. Transportation, equipment and support of militia.

Whenever the Governor shall call forth the militia, whether by virtue of the Constitution or of 44-75.1, he shall issue such orders and take such measures for procuring and transporting the elements thereof as to him shall seem best; and for their accommodation, equipment and support, he shall appoint such a staff as to him shall seem proper.

44-78.1. Request for assistance by localities.

In the event of the circumstances described in subdivision A 2, 4 or 5 of 44-75.1 arise within a county, city or town of the Commonwealth, either the governing body or the chief law-enforcement officer of the county, city or town may call upon the Governor for assistance from the militia. The Governor may call forth the militia or any part thereof to provide such assistance as he may deem proper in responding to such circumstances, but in all instances the militia shall remain subject to military command and not to civilian authorities of the county, city or town receiving assistance.

44-80. Order in which classes of militia called into service.

The National Guard, the Virginia State Defense Force, the naval militia and the unorganized militia or any part thereof may be ordered into service by the Governor in such order as he determines.

44-81. Length of service when called out.

The National Guard, the Virginia State Defense Force, the naval militia or the unorganized militia, when called into service by the Governor, shall serve for sixty days after their arrival at the place of rendezvous, unless sooner discharged. But the Governor shall, at all times, have power to retain them in service for such time as, in his judgment, may be necessary; however, except when the whole National Guard or the whole Virginia State Defense Force is not required, no individual shall be retained for a longer period than sixty days except in instances where an individual soldier or airman of the National Guard voluntarily consents to service beyond sixty days.

44-84. Regulations enforced on actual service.

Whenever any portion of the militia shall be called into service to execute the law, suppress riot or insurrection, or to repel invasion, the military justice opinions as set forth in Article 4 ( 44-42 et seq.) of this chapter, and the regulations prescribed for the National Guard of the United States, and the regulations issued thereunder, shall be enforced and regarded as a part of this chapter until such forces shall be duly relieved from such duty.

44-85. Regulations and penalties.

Whenever any part of the unorganized militia is ordered out, it shall be governed by the same rules and regulations and be subject to the same penalties as the National Guard or naval militia.

44-86. When ordered out for service.

The commander in chief may at any time, in order to execute the law, suppress riots or insurrections, or repel invasion, or aid in any form of disaster wherein the lives or property of citizens are imperiled or may be imperiled, order out the National Guard and the inactive National Guard or any parts thereof, or the whole or any part of the unorganized militia. When the militia of this Commonwealth, or a part thereof, is called forth under the Constitution and laws of the United States, the Governor shall order out for service the National Guard, or such part thereof as may be necessary; and he may likewise order out such a part of the unorganized militia as he may deem necessary. During the absence of organizations of the National Guard in the service of the United States, their state designations shall not be given to new organizations.

44-87. Manner of ordering out for service.

The Governor shall, when ordering out the unorganized militia, designate the number to be so called. He may order them out either by calling for volunteers or by draft.

44-88. Incorporation into the Virginia State Defense Force.

Whenever the Governor orders out the unorganized militia or any part thereof, it shall be incorporated into the Virginia State Defense Force until relieved from service.

44-89. Draft of unorganized militia.

If the unorganized militia is ordered out by draft, the Governor shall designate the persons in each county and city to make the draft, and prescribe rules and regulations for conducting the same.

44-90. Punishment for failure to appear.

Every member of the militia ordered out for duty, or who shall volunteer or be drafted, who does not appear at the time and place ordered, shall be liable to such punishment as a court-martial may direct.

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