“The Militia Of The Several States” Guarantee The Right To Keep And Bear Arms
Part 4

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Continuing the analysis of the Militia in the Constitution begun in PART ONE, PART TWO, and PART THREE of this commentary, we turn to…

4. The unique role of “the Militia of the several States” in “homeland security”. Congress has a constitutional power and duty, when “necessary and proper”, “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. Article I, Section 8, Clauses 15 and 18. The Preamble shows this to be a grave responsibility. For among the six overarching purposes of the Constitution set out there, no less than three parallel the mission of the Militia to provide “homeland security”: namely, to “establish Justice” (“execute the Laws of the Union”), “insure domestic Tranquility” (“suppress Insurrections”), and “provide for the common defence” (“repel Invasions”). Doubtlessly, the Founding Fathers foresaw that “the Militia of the several States” would provide the primary forces to serve the Preamble’s purposes, and for that reason specifically empowered Congress to “call[ them] forth” for those ends. The perfect juxtaposition of purposes and powers can have no other plausible explanation.

Similarly, the Constitution requires the President to “take Care that the Laws be faithfully executed”. Article II, Section 3.

And it appoints him the “Commander in Chief… of the Militia of the several States, when called into the actual Service of the United States”. Article II, Section 2, Clause 1. Again in perfect parallel, the Constitution empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”–in the performance of each of which functions the Militia must inevitably be involved in “faithfully execut[ing]” “the Laws”, under the President’s command. That the Constitution not only imposes on the President the duty to “take Care that the Laws be faithfully executed”, but also requires Congress to make available to his own command a most potent means to perform that duty, in terms explicitly echoing it, cannot possibly be just accidental.

Moreover, the Constitution imposes on “[t]he United States” the duty 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. That “the Militia of the several States” would likely be “call[ed] forth” to satisfy this “guarantee” none of the Founding Fathers could possibly have doubted. For they also empowered Congress in Article I, Section 8, Clause 15 “[t]o provide for calling forth the Militia” for three purposes highly pertinent to Article IV, Section 4: namely, “to execute the Laws of the Union”–in this case, to “guarantee to every State in this Union a Republican Form of Government”; “to… suppress Insurrections”–in this case, to “protect each of them… against domestic Violence”; and “to… repel Invasions–in this case, to “protect each of them against Invasion”. Thus, hardly surprising is that the Framers of the Second Amendment, many of whom had been among the delegates to the Constitutional Convention that drafted or the State Conventions that ratified the Constitution, asserted that “[a] well regulated Militia” is “necessary to the security of a free State”. For Articles I and IV had earlier made abundantly clear that “the Militia of the several States”–considered on the basis of 150 years of experience to be “well regulated”, if any Militia could be–were empowered to provide that security to every State through the “guarantee” of “a Republican Form of Government”.

Furthermore, the Constitution presumes that, in the direst extreme, when “actually invaded, or in such imminent Danger as will not admit of delay”, the States will be able to “engage in War” through their Militia, which, unlike “Troops”, the Constitution allows them to keep and govern “without the Consent of Congress”. See Article I, Section 10, Clause 3.

Perhaps most notable, however, is that, because “the Militia of the several States” may be “call[ed] forth… to execute the Laws of the Union”, and because the Constitution is “the supreme Law of the Land”, the Militia may be “call[ed] forth” to “execute the [Constitution]” itself. See Article I, Section 8, Clause 15, and Article VI, Clause 2. In a normal situation, this would occur pursuant to such “provi[sions]” as Congress had made, and under direction of the President as Commander in Chief. Article II, Section 2, Clause 1. But the Constitution protects America in abnormal situations, too–especially inasmuch as abnormal situations doubtlessly will confront this country with the most immediate and gravest dangers.

Now, usurpation and tyranny by individuals holding, but misusing, the highest public offices are bound to be abnormal situations. And beyond question such usurpation and tyranny will necessarily constitute the most serious possible violations of the Constitution, because they attack, and threaten to overthrow, the very rule of law from the top down. Therefore, the Constitution must fully empower “the Militia of the several States” to suppress them–and, in extremis, must even justify the Militia in “calling [themselves] forth” for that purpose, just as they did at Lexington and Concord in 1775. For, as a constitutional institution, “the Militia of the several States” are themselves a governmental institution–to which, in the absence of other governmental institutions willing or able to act, the responsibility and discretion to take charge must devolve. SALVS POPVLI SVPREMA LEX.

So, if (for example) the man holding the office of President, and a majority of men holding the offices of Representatives and Senators in Congress, and a majority of men holding the offices of Justices of the Supreme Court should all league together in a conspiracy of usurpation and tyranny, they would be breaking the law. Indeed, their acts of usurpation and tyranny could not be imputed to their offices or to the government at all, but would amount to nothing but the depredations of mere private criminals. See, e.g., Ex parte Young, 209 U.S. 123, 158-60 (1908); Poindexter v. Greenhow, 114 U.S. 270, 290-91 (1885). Under these circumstances, the Constitution would ex necessitate empower and require “the Militia of the several States” “to execute the Laws of the Union” against the conspirators and their henchmen and hangers-on, according to whatever valid statutes were in existence1–because obviously a criminal gang controlling Congress would not “call[ ] forth” the Militia to suppress its own illegal activities; a gangster perverting the office of President would not command the Militia to arrest himself; and the gang’s co-conspirators on the Supreme Court would always falsely rule “unconstitutional” whatever the Militia did to rectify the situation. Just as obviously, any purported statutes to further their usurpation and tyranny that such gangsters claimed to enact in the guise of Members of Congress, or tried to execute in the guise of the President, or attempted to enforce in the guise of Justices of the Supreme Court would be null and void from the beginning. For “[a]n unconstitutional act is not a law;… it imposes no duties; it is, in legal contemplation, as inoperative as though it had never been passed”. Norton v. Shelby County, 118 U.S. 425, 442 (1886).

Although extreme in nature, this scenario is not impossible.2 And its very possibility proves that “the Militia of the several States” must constitute a governmental institution potentially independent of and superior to all others, when the highest of those others are taken charge of, coopted, or corrupted by usurpers or tyrants. True “homeland security”–the purposes for which the Constitution says the Militia may be “call[ed] forth”–does not, can not, mean the security of some individuals who happen temporarily to hold public office, some regime, or some political party. And it does not, can not, mean the security of the greedy, unscrupulous special-interest groups–or “factions”, as the Founding Fathers called them–that use officeholders, regimes, and parties to feather their own nests at the expense of common Americans, as they do today by prating about “democracy” while they rig elections, prostitute public offices, loot the public treasury, and dispatch America’s youth as soldiers to kill and die in foreign lands in service of policies designed to line their own pockets. No. “Homeland security” means the security of “a Republican Form of Government” and of “a free State” right here in America–“a free State” composed of We the People, administered for the benefit of We the People, and in the final analysis guaranteed by We the People with their own arms in their own hands.

So, to be constitutionally legitimate, any contemporary program of “homeland security” must be fashioned, first and foremost, around “the Militia of the several States”. Not the Armed Forces–not the National intelligence agencies–not some Cabinet Department in Washington, D.C., constructed according to the blueprints of a Ministry of the Interior of an East-European Stalinist satellite of the 1950s–and most assuredly not para-militarized National, State, and local police departments and agencies that answer to such a Beria-ized bureaucracy.

Today, however, notwithstanding the torrent of near-paranoiac propaganda pouring from Washington about the desperate need to achieve “homeland security”, even (or is it especially?) at the cost of sacrificing what the Preamble calls “the Blessings of Liberty to ourselves and our Posterity”, neither Congress, nor the President, nor any State has thought to require, to request, or even to propose that the vast majority of Americans participate in some minimal program of “homeland security”, as every pre-constitutional Militia Act teaches that every constitutional Militiaman should. Has everyone among Washington’s power elite simply forgotten that the Militia Clauses of the Constitution exist? Or do they want We the People to forget? In either event, does this situation not represent exactly the kind of danger that the Constitution empowers “the Militia of the several States” to address?

5. The basic principles of “the Militia of the several States”. The foregoing has largely taken for granted the true constitutional meaning of “the Militia of the several States”. The Constitution, of course, contains no glossary in which a definition of that term can be found. So how can one be sure of precisely what definition the Constitution adopts?

To ascertain what the phrase “the Militia of the several States” meant to the Framers in 1787 when the Constitution was drafted, and to We the People in 1789 when the Constitution was ratified, one must determine what it meant in the common parlance of the times and theretofore–because the Constitution did not create “the Militia of the several States” out of whole cloth, or leave them to be newly invented by Congress or the States.

A procedure popular among defenders of the Second Amendment who are attempting to define “the right of the people to keep and bear Arms” is to assemble a mass of quotations on the subject from various Founding Fathers. This, however, is a somewhat unreliable method, because it begs the question. Without an independent, objective definition, how can one know whether any particular Founding Father’s statement is correct?

True, people often talk loosely about “the Founding Fathers’ intent” as expressed in the Constitution. But what they really mean (or should mean), is the Constitution’s intent, as expressed in its language. This language is definitive, because it constitutes the most formal and objective statement of the Framers’ and We the People’s intent: namely, “the supreme Law of the Land”. Thus, rather than relying on merely anecdotal evidence and perhaps fallible personal opinions to determine what “the Militia of the several States” means, one must look to the relevant laws: the Militia Acts of the Colonies and independent States during the pre-constitutional period, from the mid-1600s to the late 1700s. These Acts provide the best historical–and, more importantly, legal– evidence of the principles on which the Militia were formed and operated. Not only that. The Militia Acts display a remarkable consistency–even unanimity–in these principles, from New Hampshire in the North to Georgia in the South, proving that the definition of “the Militia of the several States” is not some vague or plastic verbal formula that was and now can be manipulated for political purposes, but a concept with as much surety and fixity of meaning as any to be found in the Constitution.

To describe all the principles of “the Militia of the several States” that have constitutional significance would require a lengthy book (on which, in fact, I am now working). A few salient points, though, are easily summarized:

    * The Militia were always governmental, not private, organizations. Regular Militia units typically chose their own officers, and so-called “independent companies” even organized themselves–but always subject to governmental approval, supervision, and command as mandated by statute or other legislative action.

      Therefore, no matter how patriotically motivated, organized, and well trained, groups of men equipped with firearms do not constitute constitutional “Militia” unless they are acting under governmental auspices, or assuming governmental authority because of the exigencies of the situation confronting them.

    * The pre-constitutional Militia were based on a legal duty of universal, compulsory service, excused only by special exemption.

      In the earliest days, when the Colonies were sparsely populated and the dangers from hostile Indians and other enemies acute, every free man was subject to service–the fullest extent of the duty being compelled by the necessities of the situation. Later, as inhabitants increased and threats to their security decreased, specific groups composed of those considered physically and psychologically best able to serve were designated, typically able-bodied men from 15 or 16 to 50 or 60 years of age. Inasmuch as no exemption was ever treated as a “right”, but only as a matter of legislative grace, discretion, and policy, age limits were no denial of the universal duty of Militia service, but merely a general exception, based on a Colonial or State legislature’s determination that no immediate or regular need existed to call upon those not within the specified groups.

      The key element in the designation (or exemption) was whether a man was “able bodied”. The Militia Acts presumed that everyone within their specified age limits was “able bodied”. If a man proved otherwise, he was not required to serve, because he could contribute little or nothing. What constituted being “able bodied”, however, depended on the task as well as a man’s native ability. (A stationary sniper or lookout would not need as much ability as a ranger or guerrilla.) And no Militia Act ever disarmed any free man simply because he was not “able bodied”. Not being subject to serve did not disqualify a free man from ownership or possession of arms independent of the Militia.

      The only individuals generally excused from appearing at regular Militia musters and training were some public officers–such as legislators, executive officials, justices of the peace, and sheriffs; a few private parties in necessary occupations–such as physicians, school masters, ministers, ferrymen, and millers; and those individuals totally disqualified for the Militia by reason of their race or condition of servitude–such as Indians, free Negroes, people of mixed race, and slaves.

      Other than those who were totally disqualified, most of the individuals exempted from some or all Militia musters or training were nonetheless required to fulfill the duty to provide themselves with firearms and ammunition. And many were included on an “alarm list”, subject to being called forth for service in the field when a Colony or State needed to muster her entire military strength (as, for example, in cases of insurrection or invasion). In Rhode Island, for example, men otherwise exempted because of their occupations were listed in the so-called “Senior Class”, subject to mobilization in emergencies.

      Conscientious objectors were sometimes exempted from Militia service, sometimes not. Even when exempted, though, they were generally required to perform non-military duties, or to pay fines or special taxes. Among the duties imposed on them were the dangerous functions of scouts and spies.

    * Every Militiaman was required to possess one or more firearms suitable for infantry or cavalry, along with a supply of ammunition and necessary accoutrements, or be fined or visited with some other penalty for his failure to do so.

      The Militia Acts required each and every man financially able to do so to purchase his own firearm, ammunition, and accoutrements in the free market, and to maintain these things, in good working condition, in his personal possession at home, ready for use at any time. Parents, guardians, masters, and employers were required to provide firearms, ammunition, and accoutrements for all their minor male children, apprentices, and servants old enough to serve in the Militia. For the working poor, local governments would advance moneys on deposits of merchantable goods, or arrange for employment in order to raise sufficient funds for the men to buy the necessary Militia equipment. And in some cases, men exempted from regular Militia service had to purchase arms to be supplied to others.

      Because all but the very poorest men bought their own arms in the free market, they were owners as well as simply possessors. Thus, the individual duty (and concomitant right) to possess a firearm required by statute encompassed an individual duty (and concomitant right) to own that firearm as private property. Moreover, these duties and rights were plainly individual or personal in nature, because the Militia (or local governments) enforced the duties with fines or other personal penalties specifically against individuals, not against Militia units or other groups as collective entities.

      For the poorest of the poor, the Militia themselves or local governments supplied firearms, ammunition, and accoutrements. Although these remained public property as to ownership, the Militiamen kept the arms at all times in their personal possession, subject to accounting for their stewardship thereof.

      The only individuals who could choose to disarm themselves were those conscientious objectors whose exemptions from the Militia were sometimes allowed by statute. (Individuals disqualified for the Militia by dint of race or servitude were disarmed as a matter of law, whether they wanted to be or not. As were disloyal individuals in times of war.)

      Interestingly, in principle the Militia themselves could have completely supplied their members with all the firearms and ammunition they needed, in at least three ways: (i) by normal purchases in the free market by Militiamen with the ability to pay, (ii) by assisting poor Militiamen to sell merchantable goods or obtain employment, and (iii) by subsidizing purchases for the very poorest Militiamen with fines collected from other Militiamen for various delinquencies and defaults (the fines being adjusted to generate funds sufficient to purchase the necessary quantities of arms). Thus, properly managed, the Militia could have been totally free of dependence on any other branch of government.

    * The duty (and right) to keep and bear arms did not apply only when a man actually appeared for Militia musters, training, or service in the field, but at all times.

      Every able-bodied free man was always “on duty” in the Militia, at least to the extent of maintaining a firearm, ammunition, and accoutrements always ready at home should he be called forth for service. This duty applied both to individuals who were not required to appear for musters and training at all, as well as to individuals who were required to appear, when they were not at musters, in training, or in actual service. Indeed, the duty to appear for musters, training, and service was instrumentally subsidiary to the duty to keep and bear arms, because without the arms in their hands, Militiamen would have been ineffective, if not utterly useless, at musters, training, or in the field.

      That Militiamen kept their own firearms in their own possession in their homes at all times not only made musters and training more efficient than if the arms had been stored in a few governmental arsenals, but also made the men particularly effective for service in the field in times of sudden emergencies, because they could be immediately mobilized already fully armed and equipped. Moreover, this was the only way to guarantee the effectiveness of the Militia against usurpation and tyranny, because, had usurpers and tyrants controlled all the firearms, the Militia would have been rendered impotent.

    * The pre-constitutional Militia Acts generally immunized Militia firearms from seizure for private debts or taxes. Any and all of a Militiaman’s other private goods and chattels, though, were subject to seizure and sale to compel him to pay his fines for failing to obtain and maintain the firearm, ammunition, and accoutrements the Acts required, to appear at musters or training, or to perform other Militia duties. Thus, the Militia Acts treated firearms and ammunition as highly preferred and protected types of private property.

    * Whether privately owned (most of them) or public property (a few of them), the vast preponderance of Militia firearms always remained in private possession, available to common citizens in their homes at all times, rather than stored away in governmental arsenals to be handed out only when some public officials might deem it necessary. Plentiful amounts of ammunition, too, were always at hand in private dwellings, ready to use. As everyone was aware of the great dispersion of arms throughout the community, these arrangements maximized both readiness and deterrence: Everyone in the community could expect armed support from everyone else in resisting criminals, invaders, rebels, usurpers, and tyrants; and every potential criminal, invader, rebel, usurper, or tyrant knew that almost everyone else in the community could be expected to oppose him with arms at a moment’s notice.

    * The firearms with which the pre-constitutional Militia Acts required almost every able-bodied free male to supply himself were the standard military-grade muskets, or sometimes rifles, of that day, either fitted with bayonets (if muskets were borne) or accompanied by tomahawks or hatchets (if rifles were carried). Thus, the firearms that fulfilled the Militia duty to keep and bear arms had no necessary connection with hunting or sport shooting (although they were suitable for those activities, too, and probably often used for such by their owners).

    * The universal requirement of the Militia Acts that almost all of the men supply themselves with firearms, ammunition, and accoutrements through private purchases presupposed–and as matters of both law and economics promoted and guaranteed–a well-functioning free market in those commodities throughout the Colonies and independent States. Also, in requiring all Militiamen always to maintain their arms in good working order, and private gunsmiths to repair defective arms in a timely fashion for reasonable compensation, the Acts presupposed and promoted the wide availability of these and other artisans with similar skills.

    * The pre-constitutional Militia Acts required men between 16 and 50 or 60 years of age to attend regular musters and training, generally four to six times a year. Often, this group was known as the “Trained Band”. “Independent companies” undertook to train on their own, but if called to service in the field were attached to some regular Militia units.

      The purpose of these musters and training was to prepare Militiamen to provide whatever “homeland security” proved to be necessary–from outright military resistance to invasions, to suppression of insurrections, to the regular police functions of “watch” (by night) and “ward” (by day) throughout the Colonies and States, and of “patrols” of plantations in order to maintain control over unruly slaves in the South.

    * The pre-constitutional Militia Acts aimed primarily at a general proliferation and dispersion of firearms and ammunition throughout the community. Two ideas were at work here: (i) that the level of public safety is proportional to the quantity and quality of armaments actually in the people’s possession; and (ii) that the people should control most of the guns in their own hands, rather than suffer a few guns in a few individuals’ hands to control the rest of the people. So, almost every able-bodied man was required, not only to obtain and possess a suitable firearm, ammunition, and accoutrements, but also to maintain them all in good working order at all times, ready for immediate use. Not surprisingly, then, arms and ammunition brought into the field for regular musters and training were subject to inspection, down to the last cartridge of black powder and lead ball. More interestingly, Militia officers also conducted regular “sights” of the firearms and ammunition men kept in their homes. Defaults in the quantity or quality of arms in either case resulted in fines, seizure and sale of other goods to pay the fines, or even imprisonment if the fines remained unpaid.

      Hostile Indians, slaves, and individuals of proven disloyalty were usually not allowed to possess arms, except under strict supervision. And traffic in arms with unfriendly Indians was sometimes suppressed. Otherwise, the only general controls on arms usually consisted of ordinances requiring that large supplies of gunpowder, both public and private, be stored in public powderhouses, magazines, or arsenals, in order to reduce the threat of explosions and fires in towns largely built of combustible materials, and in which open fires, burning candles, and other exposed flames were almost always present.

Footnotes:

1 E.g., Title 18, United States Code, Sections 241 and 242.

2 Quite the opposite: Some students of criminal politics would contend that such a situation actually existed in the 1930s, with Franklin Roosevelt’s hammerlock on both the Presidency and Congress, against which the Supreme Court struggled on only a few occasions, until Roosevelt succeeded in changing its composition after 1937.

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.