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The Militia of The Several States
Guarantee the Second Amendment,
Part 2 of 8
Friday, August 5, 2005
By Dr. Edwin Vieira, Jr.
NewsWithViews.com
Too
many people wrongly assume that the purpose of revitalizing "the Militia
of the several States" (or, for that matter, of forming the kind of
private citizens "militia" that already exist in several States) is
to fight new battles of Lexington and Concord. To the contrary: The
goal must be, if at all possible, to deter usurpation and tyranny,
so as to make actually fighting any battle here in America unnecessary.
Deterrence is always the best defense. And preparedness makes deterrence
credible. Besides, the ultimate purpose of revitalizing "the Militia
of the several States" is to reassert We the People's control over
both the General Government and the States, from the inside and under
the law, by infusing with energy a very important constitutional component
of those governments that has withered to a present-day impotence
and insignificance. Yet nonetheless not to irrelevance--for "the Militia
of the several States" remain not only part of the Constitution, but
also, with the continuing crisis over "homeland security", more relevant
and needed than ever before.
The
problem and the challenge are for Americans to develop--on their own,
because no one from the Establishment will ever help them--the necessary
knowledge, skills, and attitude that can develop preparedness, and
thus provide deterrence.[1] Or, to put into action the principle:
self-help leads to self-defense, which leads to self-government. "Knowledge"
looks to discovery of what the Constitution really means. "Skills"
relates to the ability to organize for effective political action
in order to secure and advance the protection the Constitution offers.
And "attitude" requires taking all of this seriously: recognizing
that the constitutional "right of the people to keep and bear
Arms" is also, and most importantly, the constitutional "duty of the
people to keep and bear Arms", and that no constitutional rights can
possibly be secure unless We the People perform their constitutional
duty to take control of their governments at every level and at all
times. The remaining PARTS of this commentary will focus on these
issues.
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KNOWLEDGE--What
is the true constitutional protection for "the right of
the people to keep and bear Arms"?
As
PART ONE of this commentary pointed out, Alexander Hamilton argued
that all of the Bill of Rights, including the Second Amendment, were
unnecessary and even potentially dangerous. Hamilton, of course, was
not the only Founding Father to advance such an assertion, to which
Time and Experience, too, have given much credence. But if Hamilton
and his co-thinkers were correct, then the original Constitution,
prior to ratification of the Bill of Rights, must have delegated no
power to Congress to disarm the people, and suffered no such power
to remain in the States (if any had ever existed there at all). Instead,
the original Constitution must have recognized an enforceable disability
(an absence of legal power and authority) in both Congress and the
States to interfere with "the right of the people to keep and bear
Arms"--which disability in some superfluous manner and degree the
Second Amendment merely reiterated and confirmed; and which disability
still exists in its full original form and force, even without consideration
of the Second Amendment, because the Constitution has never been amended
in that particular since the Second Amendment was ratified.
1.
The Militia Clauses. So where in the original Constitution
appeared (and now remain) any provisions that, in line with but more
effectively than the Second Amendment, protect "the right of the people
to keep and bear Arms" from infringement? The proper direction in
which to look is indicated by the rule of construction that when the
Framers used a word in more than one clause of the Constitution, they
presumably meant it to have the same meaning in each. See, e.g., Hepburn
& Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 452-53 (1805).
The
key word here, of course, is "Militia", which appears in the original
Constitution in:
Article
I, Section 8, Clause 15--"[Congress shall have Power] To provide for
calling forth the Militia to execute the Laws of the Union, suppress
Insurrections, and repel Invasions".
Article
I, Section 8, Clause 16--"[Congress shall have Power] To provide for
organizing, arming, and disciplining, the Militia, and for governing
such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of Officers,
and the Authority of training the Militia according to the discipline
prescribed by Congress".
Article
II, Section II, Clause 1--"The President shall be Commander in Chief
* * * of the Militia of the several States, when called into the actual
Service of the United States".
And
in the Second Amendment:
A well regulated
Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed.
Self
evidently, the "well regulated Militia" to which the Second Amendment
refers must be "the Militia of the several States" as they existed
in the period from 1787 to 1791 (and for nearly 150 years theretofore)--to
be sure, after 1787 properly "organiz[ed], arm[ed], and disciplin[ed]"
by Congress, "train[ed]" by the States, and led by the President as
"Commander in Chief * * * when in the actual Service of the United
States" for the three particular purposes the Constitution allows,
but otherwise under the command of competent State authorities. For
neither the Second Amendment nor the body of the Constitution mentions
any other "Militia"; and Americans of that era knew of and had participated
in none other than those.
Revealingly,
the noun "Militia" does not appear in Article I, Section 10, Clause
3: "No State shall, without the Consent of Congress, * * * keep Troops,
or Ships of War in time of Peace, * * * or engage in War, unless actually
invaded, or in such imminent Danger as will not admit of delay." Thus,
as this Clause attests, "Troops" are not the same as "Militia". For
the States may--indeed, must--maintain their "Militia" even "without
the Consent of Congress", because the Constitution itself recognizes
"the Militia of the several States" as permanent institutions.
For
the same reason, even "without the Consent of Congress" the States
retain their pre-constitutional powers over their Militia, subject
only to Congress's limited supremacy as allowed in Article I, Section
8, Clauses 15 and 16. See Article VI, Clause 2. And should Congress
neglect, fail, or refuse to exercise its powers properly under those
Clauses, the States on their own authority may--indeed, constitutionally
must--interpose whatever "organizing, arming, and disciplining", "governing",
and "training" of their Militia they consider necessary to maintain
"the Militia of the several States" in existence and readiness. See
Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820).
The
Second Amendment's phrase "the security of a free State" does not
appear in so many words in the original Constitution. Article IV,
Section 4 does provide, however, that
[t]he
United States shall guarantee to every State in this Union a Republican
Form of Government, and shall protect each of them against Invasion;
and on Application of the Legislature, or of the Executive (when
the Legislature cannot be convened) against domestic Violence.
To
the Founding Fathers, the verbal formulas "a free State" and "a Republican
Form of Government" must have been closely connected. Which doubtlessly
is why the Second Amendment recites that "[a] well regulated Militia
[is] necessary to the security of a free State"; while Article IV,
Section 4 "guarantee[s] * * * every State * * * against Invasion *
* * [and] domestic Violence"; and Article I, Section 8, Clause 15
empowers Congress "[t]o call forth the Militia to execute the Laws
of the Union" (including Article IV, Section 4), and to "suppress
Insurrections and repel Invasions". The unity of thought throughout
these provisions could not possibly be just accidental.
So,
the provisions in the original Constitution that deal, directly or
indirectly, with "the Militia of the several States" and their purposes
when "in[ ] the actual service of the United States"
(i)
recognize the prior and present existence of, and make permanent,
"[a] well regulated Militia" in every State;
(ii) guarantee
"the security of a free State" for every State--and, collectively,
for the United States--through "calling forth the[se] Militia" whenever
necessary to secure "a Republican Form of Government" for each State
and "to execute the Laws of the Union, suppress Insurrections, and
repel Invasions" throughout the country; thus,
(iii) empower
"the Militia of the several States" and their members as the ultimate
providers of "homeland security" against all "Insurrections", "Invasions",
"domestic Violence", and violations of "the Laws of the Union"; and,
overall,
(iv) treat
"the Militia of the several States" as parts of both the General Government
and the States, with vitally important public functions to perform.
All
of this became part of "the supreme Law of the Land" well before the
Second Amendment was ever debated in Congress, let alone ratified
by the States. And it would continue to be "supreme Law" were the
Second Amendment grossly misconstrued in the courts or even repealed
altogether.
Perhaps
most importantly, "the Militia of the several States" rank among only
six institutions that the Constitution names and treats as permanent:
to wit, We the People (in their capacity as earthly sovereign), the
Militia, the States, the United States, Congress, the President, and
the Supreme Court. True, Congress is empowered "[t]o raise and support
Armies", "[t]o provide and maintain a Navy", and to "ordain and establish"
"inferior Courts", if it finds them "necessary and proper". Article
I, Section 8, Clauses 12, 13, and 18; and Article III, Section 1.
But neither an "Arm[y]", nor "a Navy", nor any "inferior Court[]"
has or can claim any constitutionally mandated and protected existence
at all, absent affirmative Congressional action. Whereas, the Militia,
the States, the United States, the President, and the Supreme Court
exist perforce of the Constitution itself, notwithstanding anything
that Congress may do or not do. And of these six constitutional institutions,
"the Militia of the several States" are surely the oldest, because
they existed in every one of the Colonies, even before the Colonies
became independent States and formed the United States.
Also,
with respect to the importance of their function, "the Militia of
the several States" rank alongside the President himself. For they
may be "call[ed] forth * * * to execute the Laws of the Union", under
the President as their "Commander in Chief", to assist the President
in performing his duty to "take Care that the Laws be faithfully executed".
Article I, Section 8, Clause 15; Article II, Section 2, Clause 1,
and Section 3.
Interestingly,
"the Militia of the several States" rank ahead of the Supreme Court,
because to function at all the Court needs the President to appoint,
and the Senate to confirm, its Justices; whereas, being composed of
the body of the people of each State (as discussed below), the Militia
exist as long as any of the people do.
Arguably,
too, the Militia rank ahead of even the States and the United States,
because whether a State retains "a Republican Form of Government"
at all the Constitution itself foresees as possibly depending upon
her "protect[ion] against Invasion * * * [and] domestic Violence"
by the Militia; and whether the United States can "execute the Laws
of the Union, suppress Insurrections, and repel Invasions" may depend
upon the Militia as well. Article IV, Section 4; Article I, Section
8, Clause 15.
Finally,
"The Militia of the several States" rank alongside We the People
themselves, because the Militia are composed of the people, and, in
the final analysis, We the People's sovereignty depends on their control
of the Power of the Sword through their Militia.
2.
"The Militia of the several States". The Constitution employs
the noun "Militia" only in the plural: It designates the President
as "Commander in Chief * * * of the Militia of the several States",
not of some single, unified militia; and it empowers Congress "[t]o
provide * * * for governing such Part of them as may be employed in
the Service of the United States", not "for governing" some single,
unified entity. Article II, Section 2, Clause 1; Article I, Section
8, Clause 16.
Moreover,
the Constitution did not create from whole cloth "the Militia of the
several States". Instead, it
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recognized
"the Militia of the several States" as institutions that already
existed (and, indeed, had existed for some 150 years in every
one of the Colonies and independent States);
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incorporated
them all into the plan for a federal government;
-
made
them all a permanent part of that plan (subject only to constitutional
amendment); and
-
empowered
them all to perform certain vital governmental functions, all
according to the Militia's historic purposes, principles, structures,
functions, and operations.
The
last-mentioned point is of fundamental importance. When the Constitution
incorporated "the Militia of the several States" into its federal
system, it did so without defining them in any of those particulars.
This was because--as with many constitutional terms perfectly familiar
to the Founding Fathers and We the People at the time--no definitions
were necessary. In the late 1700s, everyone knew what the attributes
of "the Militia of the several States" were. And because no definitions
were then considered necessary, the conclusion is inescapable that
the Constitution must intend "the Militia of the several States" permanently
to have and exercise their well-documented historic purposes, principles,
structures, functions, and operations.
This
is apparent with respect to the three specific purposes for which
the Constitution empowers Congress "[t]o provide for calling forth
the Militia": namely, "to execute the Laws of the Union, suppress
Insurrections and repel Invasions". Article I, Section 8, Clause 15.
The Constitution needed to enumerate these purposes in order to define
(and thereby limit) the authority of Congress to "employ[ the Militia]
in the Service of the United States". Article I, Section 8, Clause
16. Historically, though, these were among the primary functions of
all the Colonial and State Militia from the beginning. Had the Constitution
empowered Congress simply "[t]o provide for calling forth the Militia",
these three purposes would have been authorized by reference to the
historic definition of the term "Militia". The Framers explicitly
listed them because they intended that only these purposes (and not
any of the others the Militia may have served in pre-constitutional
times) would justify Congress in "calling forth the Militia" "in the
Service of the United States."
To
my readers:
I
am now working on a constitutional program of "homeland security"
based on "the Militia of the several States". This is probably the
most important project on which I have ever embarked. It will also
be the most difficult to fund, because next to no one among the powers
that be, "conservative" or "liberal", wants to see the Militia revitalized.
Therefore,
I appeal to common Americans for whatever financial support they can
offer to advance this work. Contributions should be made out to me,
marked "Militia Project", and mailed to 13877 Napa Drive, Manassas,
Virginia 20112. All contributions will be hypothecated to this work
only.
Even
if you cannot contribute, please drop me a line to let me know that
you believe this effort is important.
Thank
you in advance.
Edwin Vieira, Jr.
Footnotes:
1,
Anyone who has ever attended a firearms-training course conducted
by NRA-certified instructors can appreciate why "knowledge", "skills",
and "attitude" are central to everything concerning the lawful and
competent use of firearms.
NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed prior interest in receiving this information for non-profit research and educational purposes only. For further information please refer to: http://www.law.cornell.edu/uscode/17/107.shtml
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