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

PART ONE of this commentary explained why “the Militia of the several States” are the fundamental constitutional components of “homeland security”. PART TWO discussed who actually comprises “the Militia of the several States”; how Congress and the States–contrary to their constitutional duties–are almost completely neglecting the Militia; and why average Americans need to revitalize the Militia as soon as possible. This PART explores whether revitalization of the Militia can actually come about if Americans simply arm and train themselves as individuals and in lawful private organizations, or if a more structured approach is necessary.

At first glance, purely private action is seductively appealing, for at least three reasons. First, such self-reliance circumvents the legislative, judicial, and even political processes that very great numbers of common Americans have concluded–on the basis of plentiful evidence–are too slow, too complex, too corrupt, and too thoroughly coopted and compromised by the Establishment to be anything but counterproductive in any attempt to restore constitutional government.

Second, private action aimed at revitalizing the Militia can boast a potential constituency consisting of the tens of millions of people within “the unorganized militia”, which Congress defines as every able-bodied male “at least 17 * * * and under 45 years of age” who is not a member of the National Guard or the Naval Militia–and which by default includes as well every male from 16 to 17 and over 45 years of age who is constitutionally a member of “the Militia of the several States”, but whom Congress ignores entirely. See Title 10, United States Code, Section 311(a) and 311(b)(2). Millions of these people, too, are already members of private organizations that support the Second Amendment and demand a system of “homeland security” that will not sacrifice Americans’ individual liberties.

Third, private action aimed at revitalizing the Militia can, in most States, still draw upon an efficient and well-supplied free market for firearms, ammunition, accoutrements, and personal training.

First glances, however, especially if seductive, are often dangerously deceptive. For each of the foregoing considerations is subject to the Damoclean caveat: “so long as Congress or the State Legislatures do not pass bad ‘gun-control’ statutes, or courts do not badly interpret existing ones”. Thus, there is no escaping the necessity for We the People to engage in political and legal activism at least to prevent legislators and judges from destroying the possibility of private action on behalf of the Militia.

In addition, “the Militia of the several States” will neither be properly “organiz[ed], arm[ed], and disciplin[ed]”, nor be justifiably “call[ed] forth” for “homeland security” (or any other purpose, for that matter), unless they are revitalized strictly along constitutional lines. See Article I, Section 8, Clauses 15 and 16. For only along constitutional lines can “the Militia of the several States” exercise legitimate authority. To prate about the need for “constitutional government”, while proposing questionably legal (or, worse yet, arguably illegal) solutions to present political problems, is self-contradictory. Those who do so are no better than the people they oppose.

What, then, are the constitutional fundamentals to which reformers must adhere? Once again, the history of “the Militia of the several States” provides the answer:

In every Colony and independent State prior to ratification of the Constitution, the Militia were strictly governmental institutions. They were organized and maintained pursuant to statutes that defined their legal powers, duties, rights, and immunities, and that directed all their activities towards the eminently public purposes of the “homeland security” of those days.

For the most illustrious example, the Militiamen who showed the Redcoats the mettle of Massachusetts at Lexington and Concord in 1775 were no self-recruited private army, let alone a lawless armed mob, but instead components of the regular Massachusetts Militia then in existence pursuant to statute. They fought against the uniformed minions of Royal and Parliamentary usurpation and tyranny as part of their governmental duties, for the purpose of vindicating true governmental authority, not of overthrowing the existing government, of establishing a new government, or (least of all) of seizing power as an anarchy in arms answerable only to themselves.

Importantly, at that time the Colonists were relying on military force, not in order to dissolve their political ties to the mother country, but only to restore their rights as British subjects. As Congress informed the world in its Declaration of the Causes and Necessity of Taking Up Arms (6 July 1775),

    [w]e have not raised armies with ambitious designs of separating from Great-Britain, and establishing independent states. We fight not for glory or for conquest. We exhibit to mankind the remarkable spectacle of a people attacked by unprovoked enemies, without any imputation or even suspicion of offence.

Yet, Congress also explained,

    [w]e gratefully acknowledge, as signal instances of the Divine favour towards us, that his Providence would not permit us to be called into this severe controversy, until we were grown up to our present strength, had been previously exercised in warlike operation, and possessed of the means of defending ourselves.

Nothing less than a century of development, discipline, and deployment of the Militia throughout the Colonies enabled Congress to say this. Indeed, without their Militia, grown up and matured out of what the Second Amendment later identified as “the right of the people to keep and bear Arms”, the Colonies would have been defenseless, because they had no independent standing armies of their own with which to repel the first onslaughts of British military aggression.

When the States declared their independence from Britain in 1776, their dependence on their Militia was no less evident, both in principle and in practice. The Declaration of Independence correctly recited the political principle 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.

To be practically meaningful, however, a right must know a remedy for its vindication. “A right without a remedy is as if it were not. For every beneficial purpose it may be said not to exist.” United States ex rel. Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 554 (1867). And a duty must summon the means for its fulfillment. For the States, that remedy was armed resistance, that means their Militia. The Declaration was “[t]he first official action of this nation”. Gulf, Colorado & Santa Fe Railway Co. v. Ellis, 165 U.S. 150, 159 (1897). But its efficacy turned upon a victorious passage of arms.

    [I]f the[ newly independent States] had failed in securing their independence, and the authority of the King had been re-established in this country, no one would contend that their acts against him, or his loyal subjects, could have been upheld as resting upon any legal foundation [under the law of Great Britain]”.

Williams v. Bruffy, 96 U.S. 176, 186 (1878).

Yet, even in their armed resistance to British oppression, the Militia were acting according to law. Not British law, as the King and Parliament had corrupted it, but a higher and better law. Americans sought “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”, on the basis of “truths” they held

    to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. To these “Laws” and these “truths” Americans appealed; and to enforce these “Laws” and prove these “truths” they deployed their Militia to secure “the Right of the People… to institute new Government”.

Not surprisingly, then, when the States united under the Articles of Confederation in 1781, their Militia remained central to the plan of government:

    [N]or shall any body of forces be kept up by any state, in time of peace, except such number… requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred….

Article VI, Paragraph 4.

And when We the People brought their States under the Constitution in 1788 they recognized the existence of “the Militia of the several States”, and permanently empowered them to perform vital National functions. Article I, Section 8, Clauses 15 and 16; Article II, Section 2, Clause 1.

“Permanently” is the key term here. The Founding Fathers recognized “the Laws of Nature and of Nature’s God” and certain “self-evident” “truths” to be of permanent validity and binding authority. They made these “Laws” and these “truths” the foundations, in principle, of American government. But they succeeded in practice only because, in their darkest hours, they were able by means of their Militia actually to enforce “their right” and to effectuate “their duty, to throw off [oppressive] Government, and to provide new Guards for their future security”.

All human action is historically contingent. So, there having proven to be an historically unique or indispensable remedy to enforce a right, an historically unique or indispensable means to effectuate a duty, that remedy and means must be taken as part of the right and the duty, always inseparable from them. And this the Second Amendment specifically attests: “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.” Because the Militia are “necessary to the security of a free State”, they are necessary even to its very existence, because (as History teaches), without security the existence of any State is precarious and short-lived. And inasmuch as the Militia are necessary to a free State’s existence, they must be permanent means for enforcing “the Laws of Nature and of Nature’s God” and vindicating those “self-evident” “truths” on which that existence is predicated and which it serves.

In sum, “the Militia of the several States” are institutions which existed as a matter of fact and law for more than a century before the War of Independence, and which the Constitution recognized–as well it had to–as necessarily permanent means to secure its entire system of government. The Militia did not have to be created from whole cloth in 1775, 1776, 1781, or 1788, and need not be created anew today. Revitalized, perhaps, but not recreated.

Therefore, the first step in revitalizing “the Militia of the several States” is to turn to “the several States” whose Militia they are. Patriots in each State should petition their State’s Legislature to organize the “unorganized militia”, with which Congress is doing nothing, in order to provide “homeland security” for the State. How in good faith could any State’s legislators refuse to act, when the “the supreme Law of the Land” itself tells them in no uncertain terms that the Militia are “necessary to the security of a free State”?! Article VI, Clause 2; Amendment II.

Nowhere could such action be more timely and required today than in Arizona, New Mexico, Texas, and California. These States are actually being invaded by illegal aliens. And invaded not just by Mexicans (as well as other foreigners) as individuals, but also by Mexico and who knows what other countries and international organizations in collusion with her as foreign powers. Indeed, the specific role of the Mexican government in fostering and assisting this invasion–for what could be called Lebensraum and revanche–is openly, brazenly proclaimed by her own Presidente. This is war–waged in fact, if not declared in law.

Article I, Section 10, Clause 3 of the Constitution provides that

    [n]o State shall, without the Consent of Congress, keep Troops… in time of Peace,… or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Under their present circumstances of “actual[ ] inva[sion]” and “such imminent Danger as will not admit of delay”, the front-line States could arguably even raise “Troops” (that is, standing armies) and deploy them, without “the Consent of Congress”, at least until Congress or the President took effective action to repel the invasion. In any event, and especially with Congress and the President inactive, the front-line States need seek no consent from Congress (or anyone else) to mobilize their own Militia to protect their own borders and people.

To the contrary: Congress labors under a constitutional duty to “call[ ] forth the Militia to execute the Laws of the Union… and repel Invasions”, because “[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”. Article I, Section 8, Clause 15, and Article IV, Section 4. When necessary, this duty requires Congress to “provide for calling forth the Militia” from as many other States as necessary to succor those in the front line.

That would be a relatively easy task in these circumstances. Can anyone doubt that the borders of the front-line States could be absolutely secured if Congress “call[ed] forth” an average of just 1,000 Militiamen from each of the fifty States, all 50,000 serving for three months at a time in rotation through the rosters of their States’ Militia (as was the practice in pre-constitutional times)? This would require an average of only 4,000 Militiamen from each State per year, hardly an onerous burden in comparison to the huge costs, both economic and political, of illegal immigration.

By bringing the issue of revitalizing “the Militia of the several States” to State Legislatures, patriots could also provide their fellow Americans with a much-needed education. Millions upon millions of Americans are members of “the Militia of the several States”. But how many are aware of that fact, or of the vital role the Constitution expects the Militia—that is, common Americans–to play in “homeland security”? Heated legislative battles would open eyes and minds on these matters.

If State legislators refuse to enact such a statute–in plain dereliction of their duty–then the matter must be made one of the two controlling issues at the next general election. These two issues are (i) monetary reform (about which I have written elsewhere) and (ii) revitalization of the Militia. (A third issue almost as important as these involves the meaning of the Constitution, and who is to determine it. This is the question of “judicial supremacy”, which I shall discuss in later commentaries.)

To the complaint that Americans find themselves confronted by so many political issues that these two alone cannot be the deciding ones, the answer is that the two most important powers We the People exercise are the Power of the Purse and the Power of the Sword. Without monetary reform, the whole country will go under economically in the not-so-distant future, which calamity will provide the Establishment with a rationalization for imposing a full-fledged police state. And without revitalization of the Militia, the whole country will be swamped in a flood of illegal immigrants, radically destabilized, and then ground under the heel of the full-fledged police state the Establishment sets up in response to the social and political chaos its own policies have caused (even if the monetary system does not collapse first). So, unless Americans address these two issues–and especially the revitalization of “the Militia of the several States”–soon and successfully, they will no longer have any hope of controlling their own country, and therefore will not have to concern themselves with any issues at all, because they will not be allowed to do so. On the other hand, with the Power of the Purse and the Power of the Sword firmly in We the People’s hands, all other governmental powers–as well as all disabilities (that is, limitations on governmental powers)–fall to We the People’s control as well.

The millions upon millions of people in “the unorganized militia” can become a politically decisive force for two reasons: sheer numbers and strong personal interest. Experience throughout the United States with new laws allowing common Americans to carry concealed firearms provides encouraging evidence to support this prediction. In State after State, these laws have been enacted not by the Establishment–and not through the efforts of social and cultural elitists in the media, the intelligentsiia, academia, or the smart set of “beautiful people”–but by We the People, who have forced State legislators to empower common Americans to protect themselves from criminals. As a result, Americans enjoy more personal security from violent crime today than ever before in recent memory, because (as common sense teaches and scientific studies confirm) putting more guns in the hands of more responsible citizens results in more protection and social peace.

Revitalization of “the Militia of the several States” is simply the issue of personal security writ large. Also, revitalization of the Militia may be easier to accomplish sooner and on a wider scale than monetary reform, because most people understand “homeland security” (and fear its opposite) better than they do the Federal Reserve System and the dangers it poses. Already, millions of Americans who would find it difficult to differentiate the Federal Reserve from Federal Express are up in arms against the sort of federalized “homeland security” Washington, D.C., is attempting to ram down their throats. This is probably as good a beginning for a massive popular political movement in every State as American history has ever provided.

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.