Closing the Title 32 Gap in Domestic Counter-UAS Authority

At a West Virginia Air National Guard base, Boeing C-17 Globemaster III aircraft sit on a ramp. These high-value assets support global deployment and rapid mobility. Like many National Guard installations, the base is secured by guard personnel operating under Title 32 of the United States Code. If a small unmanned aircraft system (UAS) enters that airspace, the National Guard members on site would be the first to respond. Despite being the first on scene, no statute authorizes these Title 32 personnel to detect, track, or mitigate UAS threats.

Open-source reporting indicates military installations are already experiencing unauthorized drone incursions, which can place installations at risk through surveillance, disruption, or attack. Recently, Barksdale Air Force Base issued shelter-in-place orders in response to repeated drone activity. National Guard installations, often less visible in public reporting compared to federal military installations, are not immune to this threat. Public reporting has documented multiple drone incursions at National Guard facilities, including incidents that prompted temporary operational disruptions at Stewart Air National Guard Base in New York, and confirmed sightings at McGhee Tyson Air National Guard Base and Tennessee armories.

Yet for the personnel tasked with securing these installations, the legality of a response turns on duty status, not the threat itself. Under 10 U.S.C. § 130i, enacted in 2016 and amended several times since, the secretary of defense may authorize “members of the armed forces” to mitigate unmanned aircraft threatening covered facilities and assets in the United States. The authority is well established, but it does not extend to National Guard personnel operating in Title 32 status under state command and control.

This is a defect in the domestic counter-UAS framework. Congress has provided the Department of Defense a carefully bounded set of authorities to detect, identify, track, and mitigate UAS threats. However, § 130i authorities are limited to personnel operating under federal authority pursuant to authorization by the secretary of defense. This leaves National Guard personnel in Title 32 status without a clear statutory basis to respond to UAS threats within the homeland.

Misalignment in the Statutory Framework

The limitation is rooted in the structure of the statute. Under 10 U.S.C. § 101(a)(4), the “armed forces” are defined as the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard. National Guard personnel typically serve under Title 32 for domestic missions and under Title 10 when federalized. When federalized under Title 10, National Guard personnel serve in the Army or Air Force and therefore fall within the statutory definition of the armed forces. When operating under Title 32, however, they remain under state command and outside that definition. As a result, the protections afforded under § 130i attach based on federal status rather than operational responsibility.

The mismatch is most acute at Army National Guard and Air National Guard installations. These sites support federal missions, host Department of Defense equipment, and integrate into the broader defense enterprise. They are also often secured by National Guard personnel operating in Title 32 status. They may be trained, equipped, and positioned to respond to unmanned aircraft threats, but their authority to do so is limited. The same individual, standing in the same place, confronting the same threat may be unable to act based solely on whether or not they’re federalized.

Congressional testimony from the chief of the National Guard Bureau reflects the same concerns. In remarks before the Senate in April 2026, Gen. Steven Nordhaus noted that personnel in Title 32 status do not “have the same protections and benefits as Title 10” and emphasized the need to work with Congress to ensure guard forces have appropriate authorities for counter-UAS missions in the homeland.

The result is a framework in which authority follows status, not the mission or threat. Commanders confronting such threats may attempt a shift to Title 10 status, but that does not resolve the underlying statutory defect. Requiring a status conversion is evidence of the problem. The law should not require the National Guard to navigate around a deficiency that Congress has the power to eliminate. Nor should it require the presence of a separate federal actor when the personnel already on site can respond. This creates a precarious legal environment where a service member may be forced to choose between protecting a high-value defense asset and risking personal liability for violating federal law. Without the statutory “safe harbor” provided by § 130i-like authorities, even a tactical mitigation could be interpreted as unauthorized interference with the National Airspace System. Consequently, this gap effectively cedes the tactical advantage to the adversary.

Federally Bounded, State-Executed Solution

Congress has already provided a clear statutory path. Section 130i is a tightly scoped authority that allows the Department of Defense to detect, identify, monitor, track, disrupt, seize, and, when necessary, destroy UAS threatening “covered facilities and assets” designated by the secretary of defense. The same structure can be extended to the National Guard under Title 32.

Just as current law ties § 130i authorities to the secretary of defense, any Title 32 expansion should vest authorization in the governor. Governors should be able to authorize National Guard personnel in Title 32 status to exercise counter-UAS authorities when defending covered facilities and assets, subject to parameters defined by the secretary of defense. Governors should also be able to designate facilities and assets as “covered,” consistent with federal criteria. This approach preserves federal control over scope and standards while aligning authorities with the personnel responsible for the mission.

Recent legislative developments have reinforced this model. The Safer Skies Act, passed as part of the National Defense Authorization Act for Fiscal Year 2026, expands counter-UAS authorities to state and local law enforcement operating within a federally defined framework that preserves federal standards and oversight. The shift reflects growing recognition that the threat environment requires distributed response authorities.

Against that backdrop, restricting counter-UAS authorities based on Title 10 status appears increasingly anomalous. National Guard personnel in Title 32 status are federally funded, trained to federal standards, and integrated into the joint force. They are not peripheral actors; they are operational assets defending installations critical to national security.

Federalism and Civil Liberties

Title 32, however, is not merely an administrative artifact. It reflects a deliberate division between state-controlled and federally controlled forces, one that preserves clear lines of accountability between state and federal authority when National Guard personnel operate in a state capacity. Accordingly, any extension must preserve robust safeguards.

Extending equivalent counter-UAS authority to Title 32 personnel would not dilute these protections. The same statutory conditions that apply under § 130i—including threat-based mitigation limited to covered facilities and assets, coordination with the Federal Aviation Administration and the secretary of transportation, privacy protections consistent with the First and Fourth Amendments, mandatory reporting, and oversight—would continue to govern. Authorities would be exercised pursuant to gubernatorial authorization, but within federally defined parameters. This structure enables state-level execution while preserving national consistency and the safeguards already embedded in existing law. It follows the approach reflected in the Safer Skies Act.

By adopting this framework, Congress can close a critical homeland security vulnerability without disrupting the traditional balance of state and federal military power. It ensures the operators already entrusted with physically securing high-value defense assets have the explicit legal backing necessary to protect them. This approach aligns statutory authority with operational reality, empowering the National Guard to defeat modern threats the moment they occur.

Conclusion

The current authorities produce a clear result: The person best positioned to act may be the one least authorized to do so. That is not a function of capability, training, or mission assignment. It is a function of a flaw in the statutory framework.

Congress should amend Title 32 of the United States Code to grant National Guard personnel the specific authorities currently codified in 10 U.S.C. § 130i, limited to the defense of covered facilities and assets and subject to the same conditions and oversight. Such an amendment would ensure the operators on site are authorized to respond to UAS threats, rather than leaving that authority contingent on duty status.

Counter-UAS operations are time-sensitive by nature. Where Congress has already defined the mission and authorized the response, it should not allow the outcome to hinge on whether the qualified operator is acting under Title 10 or Title 32. The alternative is a framework that functions as designed right up until the moment it matters, when a drone is in the airspace, the guard is on the ramp, and the authority to act belongs to someone who isn’t there.