“The Militia Of The Several States” Guarantee The Right To Keep And Bear Arms
Part 6

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Concluding the analysis of the Militia in the Constitution begun in the previous parts of this commentary, we turn to…

SKILLS– What has appeared in the foregoing five PARTS of this commentary should convince any fair-minded person that revitalized “Militia of the several States”, fulfilling a crucial role in “homeland security”, can provide an unique capability for preserving, protecting, and especially promoting “the right of the people to keep and bear Arms”. This is vitally important to keep in mind, because Americans’ ability skillfully to defend their rights depends in large measure on the tools they choose to employ.

“[T]he right of the people to keep and bear Arms” is under constant and coordinated attack, aimed at no less than its complete elimination. Advocates of radical “gun control” are particularly numerous, active, and strategically located among the intelligentsia, the major media, the educational establishment, and (perhaps most ominously) what Supreme Court Associate Justice Antonin Scalia has called the “law-profession culture” which dominates the Judiciary throughout the country. See Lawrence v. Texas, 539 U.S. 558, 602-03 (2003) (dissenting opinion). To advance their agenda of political, legislative, and judicial activism, they incessantly demonize private possession of firearms as

    * a major cause of violent crime;
    * a danger to public safety (especially among youth); and
    * a manifestation of firearms owners’ pathologically anti-social and especially anti-government attitudes.

The propagandistic and political power these people wield is not overwhelming, however–as evidenced by the ability of defenders of “the right of the people to keep and bear Arms” to achieve significant legislative gains at the State and local levels. See, e.g., Victory Report from the States, The American Rifleman (August 2004), at 14-16. Presumably, just as they have been defeated in the past, the partisans of radical “gun control” can be defeated in the future by We the People’s efforts in State legislatures.

For maximum effect, though, any program of State legislation must provide inter alia:

    * a clearly perceptible public benefit (not just a benefit to firearms owners as a special-interest group);
    * an opportunity for wide-ranging public participation in the program; and
    * extensive favorable public education about “the right of the people to keep and bear Arms”.

Notwithstanding its other strengths, the Second Amendment is not the sharpest “sword” for promoting such legislation. The Amendment sets out neither a power nor a duty for any legislature to enact anything. Rather, it states a disability, or absence of authority, that limits exercises of all governmental powers that infringe upon “the right of the people to keep and bears Arms”–that is, the Amendment is prohibitory, not promotive. To be sure, the Amendment does not preclude legislation aimed at securing or advancing that right (and by implication encourages it). But the Amendment is not the source of authority for such legislation. No legislature–National, State, or local–is empowered to pass any legislation perforce of the Second Amendment.

Primarily, the Second Amendment functions as a “shield”, promising (although not always delivering) judicial protection against legislative and executive encroachments on “the right of the people to keep and bear Arms”. Its operation is basically reactive. At best, its effect is to hold the constitutional line against infringements, but not proactively to advance the right. Problematically these days, even that limited result can arise only out of complex, expensive, and protracted litigation the outcome of which is not necessarily dispositive even of the issues raised–and always depends upon judges and lawyers largely drawn from the law-profession culture, who typically harbor a distinct animus against firearms and the private citizens who possess them.

In addition, the contemporary “individual rights” theory most popular among defenders of the Second Amendment does not easily lend itself to a legislative program that ought to appeal to patriotism, civic duty, and “homeland security”. Doubtlessly (as explained before), “the right of the people to keep and bear Arms” encompasses the private possession of firearms for personal protection. Individual self-defense, however, large segments of the public wrongly perceive as a purely private concern, without an overarching positive social consequence. Too many people unthinkingly accept the radical “gun controllers'” argument that police can provide sufficient protection for almost everyone, and that in any event widespread private possession of firearms is ineffective or futile against violent crime, and is actually counterproductive because it enables criminals to obtain firearms with little difficulty.

Unlike the Second Amendment, the Militia Powers of the General Government and the States constitute sharp “swords” for promoting “the right of the people to keep and bear Arms”, because:

    * The Militia Powers are proactive. Advocates of “the right of the people to keep and bear Arms” can design proposed legislation to advance that right in numerous ways, thereby seizing the initiative from the “gun controllers”.
    * The Militia Powers authorize the passage of any legislation that is in any reasonable way consistent with the legal heritage of “the Militia of the several States”.
    * The Militia Powers enable government to fulfill not only a general constitutional duty to protect society, but also at the present time to address the immediate and pressing special needs of “homeland security” in a way that no other powers adequately can. And,
    * The Militia Powers combine patriotism and public service with concerns for individual security–thereby encouraging people to become supporters of “the right… to keep and bear Arms” who would never have considered doing so on any other basis.

So, effective exercise of the Militia Powers can provide the “skills” Americans need to secure and advance “the right to keep and bear Arms”.

ATTITUDE– As optimistic as all this sounds, it depends in the final analysis on common Americans themselves–in great numbers–and the frame of mind with which they approach this problem, or with which they default on the job and “let George do it”. To protect and advance “the right of the people to keep and bear Arms”, and with it all the other rights it protects, common Americans will have to take the bit in their own teeth, and fulfill their own constitutional duties. That, however, is easier to advise than to foresee happening.

Writing of “the liberties of Englishmen” (including the “auxiliary right” “of having arms for their defence”) in the mid-1700s, Blackstone warned that they were

    liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man… lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. Commentaries on the Laws of England, Volume 1, at 144.

To Blackstone, the “attitude” with which the English people approached their most important rights was all-important–but all too often the wrong one.

Not surprisingly, nothing changed after We the People substituted their own Constitution for the laws of England. As Justice Joseph Story observed in 1833,

    [t]he right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised that, among the American people, there is a growing indifference to any system of military discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization it is difficult to see. There is certainly no small danger that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by [the Second Amendment]. Commentaries on the Constitution of the United States (5th edition, 1891), Volume II, Section 1897, at 646 (footnote omitted).

And surely today, too, “there is no small danger” that “contempt” for arms, under the urging of demagogues, may turn to outright opposition, and then lend critical support to further “gun control”.

The most hopeful sign is that at least 80 million gun owners live in this country. That, moreover, is surely an understatement of their potential influence–because, for each actual gun owner, many others in his family and among his friends and associates must also be counted as supporters of or sympathizers with “the right of the people to keep and bear Arms”. Yet, if so, how can at least 80 million people allow the travesties of contemporary “gun control” to continue? Is something amiss with their “attitude”?

A faulty “attitude” is more likely the culprit than a serious lack of “knowledge” or “skills”. Even if these commentaries have provided the vast majority of their readers with their first in-depth survey of the place of “the Militia of the several States” in the Founding Fathers’ plan, the subject is not so alien or complex that they cannot quickly master it, and pass it on to others. And most everyone to whom these commentaries appeal was probably familiar with many of the other fundamentals of “the right of the people to keep and bear Arms” already. So, for every patriot who reads these commentaries, the question should not be “So what?” but “Now what?” What are we all going to do–NOW, while there is still time?

Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School). His latest book is: How To Dethrone the Imperial Judiciary.