Are You Doing Your Constitutional Duty For “Homeland Security”? Part I

Part 1

What is the fundamental constitutional institution for “homeland security”? On the answer to this question may depend the continued independence and freedom of the United States.

Obviously, such an institution must exist, because, as the Preamble states, one important goal of the Constitution is to “provide for the common defence”. Just as obviously, however, this institution is not the recently birthed Department of Homeland Security or even the more pedigreed Department of Defense. For the Constitution mentions neither of them.

The fundamental constitutional institution for “homeland security” is not even the Army or Navy. America’s Founding Fathers profoundly distrusted standing armed forces under the control of any government as potential enemies of liberty, not least of all because of their own experiences with the British Army’s attempts to suppress freedom in the Colonies and independent States. So, in the Constitution, the Founders refused to adopt any preexisting army or navy, or to create new ones, as permanent establishments for the United States.

True, the Constitution delegates to Congress the powers “[t]o raise and support Armies” and “[t]o provide and maintain a Navy”. Article I, Section 8, Clauses 12 and 13. And with such powers comes a duty to exercise them, when necessary and proper. Compare United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), with Article I, Section 8, Clause 18. Otherwise, though, Congress need never “raise and support”, and need not continuously “provide and maintain”, an army or a navy. Furthermore, the Constitution requires that, even when Congress does “raise” an army, “no Appropriation of Money to that Use shall be for a longer Term than two Years”. Article I, Section 8, Clause 12. This enables the House of Representatives–the House of Congress electorally closest to the people and (in political theory, at least) most chary of their lives, liberties, and property–to prevent an army from continuing in existence when it serves no purpose that justifies its expense, or when it threatens Americans’ freedoms.

In addition, the Constitution provides that “[n]o State shall, without the Consent of Congress,… keep Troops, or Ships of War, in time of Peace”. Article I, Section 10, Clause 3. So, nowhere in the federal system does the supreme law of the land treat an army or navy as an inevitable, indispensable, permanent, or perpetual institution.

Where, then, should Americans look for constitutional “homeland security”? The Second Amendment to the Constitution provides the first giant steps towards the answer:

    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.

By definition, “the security of a free State” is “homeland security” (the “homeland” being, not simply a geographical area, but a special political conception rooted in freedom). The Amendment describes “[a] well regulated Militia” as “necessary” (not simply useful) for such “security”. And the Amendment singles out “the right of the people to keep and bear Arms” as so important to the existence of such a “Militia” that “the right… shall not be infringed”. Therefore, the fundamental constitutional institution of “homeland security” must be “[a] well regulated Militia” based upon “the right of the people to keep and bear Arms”.

Perhaps more importantly, the body of the Constitution itself is not silent on this matter, either. To be sure, the Constitution does not create any “well regulated Militia”. It delegates no power to Congress to “raise and support” (as with an army), to “provide and maintain” (as with a navy), or in any other words to fashion from whole cloth any “well regulated Militia”. And it does not even define what constitutes such a Militia. That is because it did not have to: In the late 1700s, every adult American knew that “well regulated Militia” had existed in the Colonies and independent States from the mid-1600s, and were established in every State of the Union even as the Constitution was being drafted and ratified. For that reason, the Constitution simply acknowledged “the Militia of the several States” as already in existence, adopted and incorporated them according to the historical legal principles by which they had long and even then operated, and thereby perpetuated them in that form. See Article I, Section 8, Clauses 15 and 16; and Article II, Section 2, Clause 1.

The denotation “Militia of the several States” recognizes that the Militia lie largely outside the jurisdiction of the General Government. Thus, “[t]he President shall be Commander in Chief… of the Militia of the several States”, but only “when [they] are called into the actual service of the United States”. And Congress is empowered “[t]o provide… for governing such Part of them as may be employed in the Service of the United States”, but not otherwise. Moreover, these powers are to be exercised only when Congress “provide[s] for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. For example, see Title 10, United States Code, Sections 331 to 333. Self-evidently, if Congress and the President may govern and command the Militia only when “such Part of them” are in fact “call[ed] forth” for certain defined and limited National purposes, during all other times the Militia must remain within some other legal and territorial jurisdictions from which they may be “call[ed] forth”, and therein must be subject to other governance and command: namely, that of “the several States”.

By recognizing, adopting, incorporating, and perpetuating “the Militia of the several States” as they historically existed, the Constitution immunizes them from fundamental changes in their legal composition and characteristics through mere legislative acts (as opposed to constitutional amendments). The Constitution does impose certain new National duties on the Militia when they are “call[ed] forth… to execute the Laws of the Union, suppress Insurrections and repel Invasions”. This, however, also empowers them in these particulars, both when “call[ed] forth” according to laws that Congress “provide[s]”, and in those situations in which the Militia ought and need to be “call[ed] forth” but Congress refuses, fails, or is unable to do so. Even more important, by incorporating “the Militia of the several States” with no other additions to, subtractions from, or modifications of their historical legal composition and characteristics, the Constitution preserves in all other respects the fundamental rights, powers, privileges, duties, and immunities that the Militia exercised and enjoyed throughout the period from the mid-1600s through the late 1700s.

Because the Constitution itself empowers “the Militia of the several States” for National purposes, the Militia are not optional, discretionary, or disposable for Congress, the President, the Judiciary, the States, or even We the People. First, because the Militia are “the Militia of the several States”, Congress lacks all authority either to create or to dissolve them. Congress also lacks authority to disregard, neglect, or impede the Militia, with respect either to their performance of their constitutionally mandated services to the Nation, or to their practical ability to perform those services. Instead, Congress’s powers and duties are “[t]o provide for calling forth the Militia” for particular National purposes, and to make them fully effective for those purposes by “provid[ing] for organizing, arming, and disciplining the[m]”. Article I, Section 8, Clauses 15 and 16. The President “shall be” their “Commander in Chief” “when [they are] called into the actual Service of the United States”. Article II, Section 2, Clause 1. And the Judiciary lacks authority to absolve either Congress or the President of these responsibilities.

Second, although “the Militia of the several States” are State institutions, the States cannot dispense with them, either, because the Constitution presupposes their permanence, and the Constitution is “the supreme Law of the Land”. Article VI, Clause 2. Obviously, if the States could dissolve their Militia at will, they could erase Congress’s power to “call[ ] forth the Militia”. They could render unfulfillable the duty of the United States to “guarantee to every State in this Union a Republican Form of Government” and to “protect each of them against Invasion; and * * * against domestic Violence”. Article IV, Section 4. And they could even disarm themselves from “engag[ing] in War” when “actually invaded, or in such imminent Danger as will not admit of delay”, because (absent dispensation from Congress) they would have no other armed forces to deploy. Article I, Section 10, Clause 3.

Third, because the Militia are State institutions, the Constitution reserves to the States an exclusive power and duty to “govern[ ] such Part of them as may [not] be employed in the Service of the United States”, and a concurrent power and duty to provide for organizing, arming, and disciplining their Militia if Congress refuses, fails, or is unable to do so, in whole or in part. See Article I, Section 8, Clause 16; Amendment X; Amendment XIV, Section 1; and Houston v. Moore, 18 U.S. (5 Wheaton) 1 (1820). Indeed, if a negligent or criminal Congress, by shirking its duties or conspiring to defeat the Constitution, could render the Militia impotent and thereby put the Nation and States in peril, and the States nevertheless could do nothing to correct the situation, it would be absurd to speak of “the Militia of the several States” at all.

Fourth, because (as Part Two of this article will explain) the Militia are composed of We the People in arms, all Americans retain the right and reserve the power to array themselves in “the Militia of the[ir] several States” should Congress and the States completely fail, neglect, or refuse to perform their duties in that particular. This right and power derives from:

    We the People’s explicit adoption, incorporation, and empowerment of the Militia in the Constitution, which cannot be defeated by inaction, incompetence, negligence, or criminality on the part of their mere agents;

    the mandate of the Second Amendment, which recognizes (i) “[a] well regulated Militia” as “necessary to the security of a free State”, (ii) “the right of the people to keep and bear arms” as the precondition for such a Militia, beyond the power of public officials to “infringe[ ]”, and therefore (iii) the right of the people to form themselves into constitutional Militia when “the security of a free State” is at risk; and, in the final analysis,

    in the case of a criminal conspiracy among public officials to deprive Americans of their lives, liberties, or property, the overarching principle of the Declaration of Independence, that “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce the[ people] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security”.

Concomitant with this right and power, furthermore, is the personal constitutional duty of every American to serve in the Militia in some capacity, unless excused by immaturity, senility, physical disability, or other proper legal exemption or disqualification. If Congress and the States fail or refuse to exercise their powers and to fulfill their duties with respect to the Militia, each and every American must fill the gap by exercising his own duties within the boundaries of the law. This cannot be emphasized too strongly, because constitutional duties typically apply only to public officials or public offices. “[T]he Militia of the several States”, though, are critically important components of constitutional government; and every American (not properly excused) is a working constituent of the Militia.

From their permanence, and the situations which may cause them to be “call[ed] forth”, “the Militia of the several States” leap off the parchment of the Constitution as the primary, and in some circumstances the only available or desirable, constitutional force for “homeland security”. With their usual perspicacity, the Founding Fathers designated the Militia to defend against every salient danger, foreign and domestic, including: “execut[ing] the Laws of the Union, suppress[ing] Insurrections and repel[ling] Invasions” (Article I, Section 8, Clause 15); “guarantee[ing] to every State… a Republican Form of Government” and “protect[ing]” them all against “Invasion” and “domestic Violence” (Article IV, Section 4); and even enabling the States to “engage in War” when “actually invaded, or in such imminent Danger as will not admit of delay” (Article I, Section 10, Clause 3). Notable is that, because the Constitution is “the supreme Law of the Land” (Article VI, Clause 2), the Militia may be “call[ed] forth” to “execute the [Constitution]” itself. And because usurpation and tyranny by public officials constitute the gravest possible violations of the Constitution, the Militia are empowered by the Constitution to suppress them–and, in extremis, may even “call[ themselves] forth” for that purpose, as they did at Lexington and Concord in 1775. For, as a constitutional institution, “the Militia of the several States” are a governmental institution. So, the true “federal government” of this country consists of six parts: We the People (the political body, empowered to vote), Congress, the President, the Judiciary, the States, and the Militia (the armed body, empowered to fight).

Yet when and where, in all the strident propaganda and agitation, hubble-bubble, hoopla, and orchestrated paranoia about the need for “homeland security” to defend America against “terrorism”, has anyone in political prominence pointed this out? Or suggested that “homeland security” be based on it? Or proposed a comprehensive revitalization of “the Militia of the several States” as the central focus, or at least a very important part, of “homeland security”? Why, instead, is “homeland security” being used as a cover-story to rationalize the construction of a centralized national police state, for which the Constitution provides no justification whatsoever, but disallows in every particular?

Why have all the worldly wise and powerful, the self-styled “best and brightest”, in Washington, D.C., as well as in State capitals throughout the country, ignored the point that stands out on the face of the Constitution with as much prominence and character as Karl Malden’s nose? Can they not read the Constitution? If they can read it, can they not understand it? If they can understand it, can they not speak out?

Or is their silence the very best evidence that Americans could have of the need to revitalize “the Militia of the several States”?

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.