Part Three: Edwin Vieira: The Militia of the Several States

Part One

Part Two

Part Three

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(continued from part two)

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PART FIVE

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.

PART SIX

6. The principles of “the Militia of the several States” compared with today’s “gun control.” The contrasts between the proliferation and dispersion of firearms and ammunition among the vast mass of the people in pre-constitutional times, and the contemporary political campaign to restrict to the point of total prohibition the private possession of firearms by common Americans, are stark, striking, and to any constitutionalist sickening. For example:

THEN: The armed people constituted, and understood themselves to be, an important component of the government; their possession of firearms was a governmental as well as a personal duty and right; and their arms were the very symbols and instruments of their legal authority.

NOW: The severe limitations on, or even prohibition of, private possession of firearms proposed by “gun controllers” separate “the government” (and its armed minions) from everyone else, creating a dangerous dichotomy between “the rulers” and “the ruled” that must inevitably widen into an antagonistic rift between “us” and “them.”

THEN: Possession (and usually ownership) of firearms was near-universal and compulsory among free men. Almost every able-bodied free man was required to be armed. Only a few exemptions excused men from mustering and training, and only the claim of conscientious objection excused any free man from possessing firearms.

NOW: The goal of “gun controllers” is to render possession of firearms minimal and highly selective–confined to the armed forces, the police, and the specially privileged among the political elite. Only a vanishingly few, if any, exemptions will allow common Americans to possess firearms for any reason.

THEN: The government supplied firearms to the poor, or assisted them in procuring firearms for themselves in the free market.

NOW: “Gun controllers” demand that the government disarm as many people as possible, and seek to make commerce in firearms prohibitively expensive and cumbersome for common Americans, thereby disproportionately burdening the poor. (The rich and powerful will always have ready access to firearms, if not in their own hands then in the hands of private security personnel.)

THEN: Disarmament by force of law was limited to actual or potential enemies–hostile Indians, unruly slaves, or disloyal citizens–or to conscientious objectors, who disarmed themselves for their own reasons of conscience. Individuals exempted by age, disability, office, profession, or trade from active service in the Militia were never disarmed. The purpose of laws pertaining to firearms was to promote the widespread possession of firearms.

NOW: The ultimate goal of “gun controllers” is to disarm everyone under color of law, except the armed forces, the police, and the politically privileged. The purpose of “gun laws” is to limit or prohibit common Americans’ possession of firearms to the maximum degree politically possible.

THEN: Licensing and registration of firearms were superfluous. Because the Militia Acts required almost every able-bodied free man to be armed, everyone knew that most everyone else possessed one or more firearms. Nevertheless, regular inspections were conducted in order to insure that everyone actually possessed the firearms and ammunition the laws required. But no Militia Act ever required licensing, registration, or even inspection of firearms other than Militia firearms.

NOW: “Gun controllers” propose registration of every kind of firearm (including even air rifles) as the step preliminary or corollary to licensing, which is the step preliminary to prohibition. Searches and seizures will be conducted to ferret out people who are not licensed, and to discover firearms slated for confiscation and destruction.

THEN: Almost every able-bodied free man was required to possess firearms and ammunition of the same type and effectiveness as the regular army fielded. Moreover, because everyone was armed, and knew how to use his firearms, the Militia vastly “outgunned” the army, and even more so the sheriffs, constables, and all other public officials who performed duties of a police nature.

NOW: “Gun controllers” seek to deny common Americans firearms of most modern military types, as well as all other firearms that could be employed effectively to oppose armed forces or police in the service of usurpers and tyrants. On the plea that the people must not be permitted to “outgun” the police (let alone the armed forces), “gun controllers” demand prohibition of private possession of semiautomatic “assault rifles” (full automatics being already regulated to near extinction), semiautomatic rifles of any configuration, .50 BMG caliber rifles, “sniper rifles” (that is, accurate rifles with optical sights)–and some day soon even the lever-action carbines that John Wayne made famous in his Westerns, when they discover how effective those guns can be in the hands of well-trained men.

THEN: No Militia Act or other law prohibited private ownership or possession of firearms other than Militia firearms. Even muskets or rifles possessed, and useful, solely for hunting or sport were within every free man’s right.

NOW: “Gun controllers” contend that “the right to keep and bear Arms” includes only firearms with a provable “sporting” or “recreational” purpose, but not firearms of military types. They also assert that, “right” or no “right,” even “sporting” firearms ought to be licensed, registered, prohibited, and confiscated (doubtlessly because they realize that any “sporting” firearm can be used for a military purpose in the hands of a guerrilla, partisan, or resistance fighter).

THEN: No Colony or independent State employed exorbitant taxes to impose financial disincentives on the private possession of firearms. To the contrary: many Militia Acts exempted firearms from seizure and sale for the payment of private debts or taxes.

NOW: The first major Congressional “gun law” (still on the books after some 70 years) uses taxes to burden and inhibit private commerce in fully automatic and other types of firearms.

THEN: No Militia Act prohibited any free man from purchasing or possessing “too many” firearms, or “too much” ammunition. To the contrary: almost every free man was required to have at least one firearm and some minimum quantity of ammunition in his possession at all times.

NOW: “Gun controllers” promote statutes restricting private purchases to “one gun a month” (or some other such formula), as well as so-called “private-arsenal laws” that limit, or impose punitive taxes based on, the number of firearms or amounts of ammunition an individual possesses.

THEN: No Militia Act ever required that firearms and ammunition be kept away from all Militiamen in governmental arsenals until distributed by public officials for musters or training, and later collected again for storage.

NOW: “Gun controllers” seek to prohibit the private possession of firearms, except when handed out from government arsenals to licensed individuals for “sporting” purposes, then to be taken back and secured under lock and key.

THEN: Almost every able-bodied free man from 16 to 50 or 60 mustered and trained with firearms on a regular basis.

NOW: “Gun-free schools” instill a fear and hatred of firearms in children from the earliest age. Rather than being educated as to the social and political necessity for citizens to keep and bear arms, and trained to use firearms safely and effectively, children are being conditioned to react to all firearms in private hands as a threat.

THEN: No Militia Act specified that Militia firearms were not to be borne at times and places other than musters and training, or that firearms other than Militia firearms were not to be borne in any particular places or at any particular times. NOW: Public and private “gun-free zones” are metastasizing across America like melanoma.

THEN: No Militia Act prohibited or penalized self-defense with Militia firearms, or with firearms other than Militia firearms.

NOW: A homicide committed with a firearm in self-defense often results in an indictment for murder, massive fees and costs for legal defense, notoriety in the media, and psychic trauma, even if the charges are proven specious and the defendant is acquitted. The “gun controllers’” goal is to outlaw armed self-defense entirely (as has been tried in England), as another reason for a complete confiscation of privately owned firearms–because who needs the means if the end is prohibited?

THEN: The near-universal private possession of firearms was recognized as the precondition for freedom–as the Second Amendment says, “[a] well regulated Militia, being necessary to the security of a free State.”

NOW: The near-universal private prohibition of firearms must inevitably result in exposing most Americans to the “due Subjection and Obedience” of slavery. Is it possible that the proponents of such a prohibition do not understand this? And if they understand it, that they do not desire it?
Given that the principles of the pre-constitutional Colonial and State Militia, as found in every Militia Act from the mid-1600s to the late 1700s, define “the Militia of the several States” and their legal characteristics for all constitutional purposes–and given that, with respect to “the right of the people to keep and bear Arms,” the Constitution has not been amended since the Second Amendment was ratified to guarantee that that right “shall not be infringed”–and given the plain contradictions between the principles of “the Militia of the several States” and the goals of contemporary “gun controllers” just illustrated–and given that the success of “gun control” will hasten the end of a free America–how then can contemporary “gun control” be rationally defensible, let alone the subject of legislation that the judiciary all too often sustains?! How, indeed, is the promotion of contemporary “gun control” not a criminal activity, and the people who promote it not participants in a criminal enterprise?

7. The relation of the Second Amendment to the Militia Clauses of the Constitution. Whether or not Alexander Hamilton and his co-thinkers were correct to dismiss the Bill of Rights as unnecessary and superfluous, the foregoing PARTS of this commentary prove that the Second Amendment must be interpreted in light of and consistent with–even simply as a restatement, amplification, or emphasis of–the original Militia Clauses of the Constitution.

The skeptic may object that, whereas the Second Amendment speaks of “the right of the people to keep and bear Arms,” the Militia Clauses do not speak of any such right at all. So that, if “the right of the people to keep and bear Arms” has any explicit constitutional protection, the Amendment must be its locus. That contention forgets, though, that if the Constitution delegates no power to the General Government to interfere with “the right of the people to keep and bear Arms,” or delegates a power solely to promote that “right” under some other terminology, then no explicit guarantee is necessary, in the Bill of Rights or anywhere else.

True enough, the Second Amendment does refer specifically to “the right of the people to keep and bear Arms.” But what “right” does it mean? The Amendment itself does not create that “right” out of whole cloth, specifying its particulars. So what is the source of “the right of the people to keep and bear Arms”? What is its content? And who may exercise it? The Amendment contains neither derivation, nor definition, nor explanation. To comprehend the nature and scope of the Amendment therefore requires recourse to more than simply its words. That, however, poses no insuperable problem. “That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution * * * what is reasonably implied is as much a part of it as what is expressed.” Dillon v. Gloss, 256 U.S. 368, 373 (1921).

The implicit reference, of course, must be to “the right of the people to keep and bear Arms” that preexisted the Second Amendment–not just “a right,” or “some right,” with but vague contours–but “THE right” with which every American of that era was perfectly familiar, which most of them personally exercised, and which all of them would then have understood as the Amendment’s subject. And because the Constitution, too, contains no definition of that “right,” “the right” to which the Second Amendment refers must be the selfsame “right of the people to keep and bear Arms” that preexisted the Constitution.

What was (and still is) this “right”? To answer that question requires application of the principle that the language of the Constitution “has to be interpreted in the light of the tacit assumptions upon which it is reasonable to suppose that the language was used.” Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383 (1930). “[W]e must * * * place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of [its provisions].” South Carolina v. United States, 199 U.S. 437, 450 (1905). Accord, Ex parte Bain, 121 U.S. 1, 12 (1887).

The only “right of the people to keep and bear Arms” that appears throughout 150 years of pre-constitutional Colonial and State history in the statutes of the times–the highest form of legal evidence–is the right (and correlatively the duty) of the people to keep and bear arms that constituted one of the main principles and practices of the Militia. This right and duty are necessarily implicit in the Constitution’s recognition of “the Militia of the several States,” because self-evidently the Militia cannot exist without them. And the Second Amendment confirms this link in unmistakable terms, when it ties “the right of the people to keep and bear Arms” with “[a] well regulated Militia.” For no one can doubt that “well regulated Militia” were what every Colonial and State Militia Act mandated for almost 150 years prior to ratification of the Constitution.

The skeptic, however, may object that the Militia Acts recognized only a duty to keep and bear arms, not a right, and that even this duty was merely statutory in nature, not natural or inherent. On analysis, this criticism collapses.

First, the duty the Militia Acts imposed on almost every able-bodied free man to be armed necessarily encompassed every man’s right to be armed. Self-evidently, if an individual has a legal duty to be armed, then no public official (or private citizen, for that matter) can have a legal power and privilege to interfere with the individual’s performance of his duty. Which means that, as against all public officials, each such individual has a legal right to be armed as the statute provides. And if that statutory duty actually derives from some higher law, as a consequence of its being a natural and inherent duty, then so does the concomitant right.

PART SEVEN

The highest source of the law on this subject is the injunction: “Thou shalt love the Lord thy God, and thy neighbor as thyself.” The right of the individual to defend himself becomes, upon his assumption of familial responsibilities, the duty to defend the members of his own family. His justifiable love of self that compels him to protect his own existence must extend to them, too. In like wise, in any organized community that recognizes a mutual self-interest among its members, if any citizen may claim a right to expect defense from all, in fair compensation he must fulfill a concomitant duty to assist in the defense of everyone else. Given their source, to contend that this reciprocal right of self-preservation and duty of mutual protection are not natural and inherent within society–as a consequence of its being “society,” rightly understood–lacks cogency.

The Founding Fathers’ legal mentor, Sir William Blackstone, made the same point in terms of the specific laws of England. After identifying “the principal absolute rights which appertain to every Englishman”–namely, “the rights of personal security, personal liberty, and private property”–he explained that in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the [English] constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights * * * . Commentaries on the Laws of England (American edition, 1771), Volume 1, at 140-41.

Among these “auxiliary rights” of Englishmen, Blackstone explained, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which * * * is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. In these * * * consist the rights, or, as they are frequently termed, the liberties of Englishmen; 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. * * * And * * * to vindicate these rights, when actually violated or attacked, the subjects of England are entitled * * * to the right of having and using arms for self-preservation and defence.

Ibid. at 143-44.

The pre-constitutional Colonial and State Militia Acts put into practical form “the [English] right of having and using arms for self-preservation and defence”–while showing how different from its practice in England the “public allowance, under due restrictions” was in America. Unlike the situation in England, in America firearms were not only “suitable” for all men (excepting slaves), no matter their “condition and degree,” but also requisite. And “such [firearms] as were allowed by law” included the most modern military-type arms then available in the free market. Thus, in America “the natural right of resistance and self-preservation” not only existed but also suffered no “due restrictions” in positive law. Rather, the Militia Acts extended it into a nearly universal duty. Such an extension of “the natural right of resistance and self-preservation” could not change its innate character, however, only transmit that character to its correlative duty.

That “the right to keep and bear Arms” is a natural right and duty the Declaration of Independence confirms. Through that document, the States “assume[d] among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle[d] them.” That this could be accomplished, according to the principles of “the Laws of Nature and of Nature’s God,” in no way except through exercise of “the natural right of resistance and self-preservation” the Declaration makes clear: “[W]hen 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.” That the Declaration couples “it is their right” with “it is their duty” cannot be nothing more than a slip of the pen.

Moreover, if the States’ independence–and, as a consequence of that, their power to enact their own constitutions, statutes, and other laws, binding on their own people–derived from “the Laws of Nature and of Nature’s God,” then, as a condition of their legitimacy, those constitutions, statutes, and other laws themselves must conform to “the Laws of Nature and of Nature’s God.” Which means inter alia that they must recognize, embody, protect, and empower “the natural right of resistance and self-preservation,” and its corresponding duty.

Even if one humors the skeptic by imagining that, all this legal theory and history notwithstanding, pre-constitutional Colonial or State legislatures might have denied the individual right and duty to keep and bear arms in part or in whole, nothing changes. Because in fact those legislatures never did, or even attempted to, deny that right and duty. A failure ever to exercise a supposed power is convincing evidence that no one in authority ever believed that such a power existed. FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 513 & n.20 (1949). Similarly, whether or not the Constitution might not have recognized the individual right and duty to keep and bear arms, in fact the Constitution does recognize them, because it recognizes “the Militia of the several States,” all of which for 150 years were based on the principle of near-universal possession of firearms by private individuals.

By recognizing “the Militia of the several States,” the Constitution imposes a permanent duty on nearly all Americans to serve therein, according to the principles the pre-constitutional Militia actually put into practice. One part of that essentially governmental duty is to be armed, a responsibility emphasized and effectuated by the power (and duty) of Congress “[t]o provide for * * * arming * * * the Militia.” Article I, Section 8, Clause 16. Every individual subject to the constitutional duty to be armed in “the Militia of the several States” necessarily enjoys a constitutional right as against every public official not to be hindered, and (through Clause 16) a constitutional right to be assisted, in the performance of that duty. No statute, executive action, or judicial decision can possibly change that. Therefore, the “right of the people to keep and bear Arms” is ABSOLUTE, because it is the consequence or corollary of a constitutional duty that applies both to the people and to every public official. Indeed, to argue that any other part of any government at any level may disarm the one branch of the government that the Constitution itself specifically requires to be armed is self-contradictory nonsense.

The absolute nature of “the right of the people to keep and bear arms” is precisely what one would expect from the Second Amendment’s precept that “[a] well regulated Militia, [is] necessary to the security of a free State”. As American history teaches, “[a] well regulated Militia” is composed of an armed people. That being so, “the security of a free State” requires, and for all practical purposes must be equated with, an armed people. Therefore, “a free State” is one in which everyone possesses his own firearms, knows why he is armed, opposes every attempt to disarm him, and with his arms and training fulfills his duties to provide “security” in just proportion with everyone else. As a consequence of this, in “a free State” public officials have no legal authority whatsoever to disarm the people through general “gun control.” So, in “a free State,” “the right of the people to keep and bear Arms” must be absolute, because anything less than an absolute right could not provide adequate “security.” Anything less than an absolute right would always enable a police state to develop, because the police would inevitably end up “outgunning” common citizens (as is the obvious goal of “gun controllers” today).

From all this, several important conclusions follow:

“[W]ell regulated Militia” are organized and operate according to the historic principles of “the Militia of the several States.” That is, nearly everyone in the community is required to be armed, trained, and assigned definite duties for the provision of “homeland security” as component parts of the government. In this structure, arms are the key component, because training for the use of arms is useless without the arms, whereas armed men can often acquire training even “on the job” through the use of their arms.

“[T]he right of the people to keep * * * Arms” is a right of private possession (and usually ownership, too) of firearms and ammunition in individuals’ homes, ready and available for use at all times, rather than stored away in government arsenals to be handed out only when some public officials deem it necessary. Private possession is absolutely necessary for “the security of a free State,” because only private possession can maximize both readiness and deterrence–particularly against usurpers and tyrants, who historically have proven the most dangerous threats to every “free State.”

“[T]he right of the people to * * * bear Arms” encompasses, at the minimum, the freedoms to go abroad individually, and to assemble, with arms for all Militia purposes (the first being necessary to the second). The reasons for this are obvious: The Militia operate through individuals with arms in their hands. In the nature of things, most Militia operations must occur outside of individuals’ homes. The awareness on the part of potential criminals, terrorists, usurpers, and tyrants that untold numbers of Militiamen are or could be carrying firearms, openly or concealed, in public and private places deters anti-social action. So every single individual who might carry a firearm outside his home thereby performs part of a vital Militia function.

Furthermore, because the Constitution requires Congress “[t]o provide for * * * arming * * * the Militia,” and prohibits the States and their subdivisions from interfering with the fulfillment of Congress’s duties, governments at all levels must recognize, facilitate, and protect this activity–by eliminating almost all “gun-free zones,” providing the widest latitude for private individuals to carry firearms both open to common observation and concealed, and so on.

The “Arms” the people may “keep and bear” include all firearms that could serve Militia purposes–from the firearms appropriate for a regular light infantryman, to whatever arms might prove useful for someone performing the functions of a policeman or security guard, or a guerrilla, partisan, franc-tireur, or resistance fighter.

“[T]he people” who enjoy “the right * * * to keep and bear Arms” includes all common Americans. No exclusion can exist on the basis of servitude (Amendment XIII), race (Amendment XIV, Section 1), sex (Amendment XIX), or any but the most serious legal disability, such as proven disloyalty or the commission of a crime for which slavery or involuntary servitude is an appropriate penalty.

Moreover, no one can be denied “the right * * * to keep and bear Arms” simply because he is not sufficiently “able bodied” to serve in the Militia. This is not only because what constitutes being “able bodied” turns upon the service to be performed, which is a matter that depends upon evaluation of person, time, place, and circumstances, rather than application of an arbitrary label; but also because no pre-constitutional Militia Act ever disarmed any free man simply because he was not “able bodied”. If not being subject to serve in the Militia because of some physical disability did not disqualify a free man from possession and ownership of firearms independent of the Militia then, it cannot do so now. To the contrary: That a physical disability never disqualified a free man in pre-constitutional times from possession and ownership of firearms proves that “the right of the people to keep and bear Arms” was not then considered solely a consequence of service in the Militia, but instead was always understood as a precondition for forming the Militia in the first place.

“[T]he right of the people to keep and bear Arms” in and for the purposes of “[a] well regulated Militia” does not define the full extent of that right. For, plainly, firearms suitable for use in the Militia can be used–and where the Militia are properly functioning are always at hand to use–for personal protection, hunting, target shooting, or other “sporting” or “recreational” pastimes. Besides the facts that personal protection is, at base, a Militia use at the individual level, and that most other normal uses of firearms sharpen the users’ skills for Militia use, no pre-constitutional Militia Act ever disallowed such uses for Militia arms.

The Second and the Thirteenth Amendments work together to outlaw general “gun-control” legislation by both the General Government and the States. A people held in slavery live in the very opposite of “a free State.” General “gun control” enforced against innocent individuals is the antithesis of “[a] well regulated Militia” because it makes the existence of such a Militia impossible. Because “[a] well regulated Militia, [is] necessary to the security of a free State,” in its absence such a State cannot survive. Therefore, general “gun control” must be unconstitutional, as a means to impose or maintain slavery. And assuming for purposes of argument that some “compelling interest test” were relevant, no level of government can assert any “compelling interest” in imposing general “gun control,” because the only constitutional “interest” that justifies slavery or involuntary servitude is “as a punishment for crime whereof the party shall have been duly convicted.”

The Second and the Fourteenth Amendments also work together to outlaw general “gun-control” legislation by the States, for two reasons. First, Section 1 of the latter Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.” Among those “privileges and immunities” is “the right * * * to keep and bear Arms.” See Scott v. Sandford, 60 U.S. (19 Howard) 393, 449-50 (1857). Another is the “immunit[y]” from slavery or involuntary servitude “except a punishment for crime.” So the Privileges and Immunities Clause bans all general “gun-control” legislation.

Second, Section 1 of the Fourteenth Amendment also provides that “[n]o State * * * shall deprive any person of * * * property.” A principle of the pre-constitutional Militia Acts–and therefore of “the Militia of the several States”–is each individual’s actual ownership of a firearm (where within his personal financial capability), as well as his possession thereof. So no conceivable “due process of law” could justify expropriation of Militia firearms individuals own, because to do so would necessarily destroy “the Militia of the several States,” the permanence of which the Constitution presumes. Self-evidently, no State or local government can assert any “compelling interest” in enacting legislation that cannot amount to “due process of law.”

PART EIGHT

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?

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Source, July 05, 2005: http://edwinvieira.com/edwin16.htm

Additional source: http://www.jaegerresearchinstitute.org/articles/militia.htm