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

Part One

Part Two

Part Three

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Dr. Edwin Vieira, Jr.

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(continued from part one.)

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Part Two (Oath Keepers)

The Constitution does provide that “[n]o State shall, without the Consent of Congress, * * * keep Troops, or Ships of War, in time of Peace”. Article I, Section 10, Clause 3. But “Militia” are not “Troops”. For the Constitution delegates to Congress a power “[t]o provide * * * for governing such Part [of the Militia] as may be employed in the Service of the United States”, and only “such Part”–necessarily reserving to the States the governance of all of their Militia not “employed in the Service of the United States”, with no suggestion that the States may exercise such governance only with “the Consent of Congress”.

Just as the States require no prior permission from Congress to exercise their concurrent powers over their Militia, they are not subject to Congress’s disapproval of any such exercise, except through Congress’s proper exercise of one of its own Militia Powers. The key element here is that Congress must properly exercise one of those powers. Thus, if a State were to prescribe that her Militiamen must be armed with rifles of .223 caliber, but Congress ordained that all Militiamen nationwide must be armed with rifles of .308 caliber, Congress’s mandate would have to prevail, to the extent that no Militiaman could exempt himself from the Congressional requirement by pleading that he was in compliance with the State requirement. For the Constitution delegates to Congress a power “[t]o provide for * * * arming * * * the Militia”; a statute specifying the minimum caliber for Militia “arm[s]” is plainly constitutional; and “the Laws of the United States which shall be made in Pursuance [of the Constitution] * * * shall be the supreme Law of the Land”. Article I, Section 8, Clause 16; Article VI, Clause 2. (Of course, Congress could not prevent the State from requiring each of her Militiamen to possess a rifle of .223 caliber in addition to the rifle of .308 caliber that Congress specified.)

On the other hand, if Congressmen steeped in usurpation and tyranny were to enact a general “gun-control” statute banning the private possession by all Americans of all rifles–thereby effectively destroying “the Militia of the several States” by depriving them of the necessary means to perform their functions–any State could exercise her reserved power to maintain her Militia by enacting a statute that required all State citizens to possess one or more rifles suitable for Militia service. Indeed, it would be each State’s absolute constitutional right and duty to do so. The purported Congressional statute could not supersede such a State law, because it would not have been “made in Pursuance of [the Constitution]“, but in derogation and attempted destruction thereof. And “[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).

Even if such a “gun-control” statute might be valid in a territory not subject to any State’s jurisdiction, such as the benighted District of Columbia, it could never be valid within any State, because:

• maintenance of “the Militia of the several States” is one of the attributes of State sovereignty–indeed, an essential function of every State government necessary for the existence of the States and through them of the United States–which the Constitution explicitly recognizes;
• the Colonies and independent States exercised the power and duty to maintain Militia before the Constitution was ratified, and retain under the Constitution a concurrent power and duty of scope greater than the similar power and duty delegated to Congress (which appertain to three specific purposes only); and
• Congress may exercise none of its powers in such wise as to abridge any attribute of State sovereignty.

Contrast Article I, Section 8, Clause 17 with Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76-78 (1869). Importantly, in Lane County the question was whether a Congressional power the Supreme Court recognized as valid (the power to emit legal-tender paper currency) could override a State’s sovereign power to determine the medium in which to collect her taxes (gold and silver coin), which sovereign power is only implicit in the Constitution. In the case of general “gun control”, however, the question would be whether a plainly invalid Congressional power could override a State’s sovereign power that the Constitution explicitly recognizes and incorporates as part of its federal system. For any purported Congressional power to disarm common Americans directly contradicts the actual constitutional power, and duty, of Congress “[t]o provide for * * * arming * * * the Militia”, and (to the extent it is exercised and enforced) destroys the efficacy if not the very existence of “the Militia of the several States”.

Thus, all general “gun-control” legislation emanating from the General Government is subject to effective nullification by the States on the basis of the Militia Clauses of the original Constitution alone, without reference to the Second Amendment.

(b) Congress. Because the Constitution itself recognizes “the Militia of the several States” as part of its federal structure, and empowers them for certain important National purposes, the Militia are not optional, discretionary, or disposable for Congress. Because the Militia are “the Militia of the several States”, not of the United States, Congress lacks all authority either to create or to dissolve them–just as it lacks authority to create or dissolve a State’s legislature, executive, or judiciary. Congress also lacks authority to disregard, neglect, or impede the Militia, with respect either to the performance of their constitutionally mandated services to the Nation, or to their practical ability to perform those services. Instead, Congress’s powers and duties are “[t]o provide for calling forth the Militia” for particular National purposes, and to make them fully effective for those purposes by “provid[ing] for organizing, arming, and disciplining” them. Article I, Section 8, Clauses 15 and 16.

The Constitution does delegate to Congress the power “[t]o provide for organizing * * * the Militia”. Article I, Section 8, Clause 16. “To provide for organizing” does not, however, entail a power to create “the Militia of the several States” from whole cloth, according to some eccentric definition that politicians might devise in the Capitol. For the Founding Fathers knew that “the Militia of the several States” had existed for nearly 150 years prior to ratification of the Constitution; yet they did not provide in the Constitution for disbanding these pre-existing Militia in order to clear the ground for erecting some entirely novel establishment under the rubric “Militia”. Doubtlessly, this was because the Founders understood the term “Militia” as it had been understood for nearly 150 years theretofore: namely, to mean nothing less than almost the whole body of the people of each State, properly armed and accoutred for military service. And they constitutionalized this historic definition precisely so that Congress alone could never change it. Whereas they employed the verb “organiz[e]” in a general sense, in order to provide Congress with some latitude to structure the body of the armed people in whatever manners might prove most effective from era to era. Thus, “[t]o provide for organizing * * * the Militia” means putting the pre-existing and permanent “Militia of the several States”–the whole body of the armed people in each State–into the form best suited to their purposes and functions as circumstances counsel.

This power should be contrasted with Congress’s powers “[t]o raise * * * Armies” and “[t]o provide and maintain a Navy”. Article I, Section 8, Clauses 12 and 13. “To raise” and “[t]o provide” these things themselves both imply that, prior to Congress’s action, no “Armies” or “Navy” exist. Distinguishably, Congress is not empowered to “raise” or “provide” the Militia, but only “[t]o provide for” taking certain other actions with respect to the Militia, which the Constitution presumes are already in existence.

Furthermore, nothing in the Constitution suggests that Congress must “raise and support * * * Armies”, or “provide and maintain a Navy”, should it conclude that neither is “necessary and proper”. See Article I, Section 8, Clause 18. To the contrary: the Constitution requires that, even when Congress does “raise” an army, “no Appropriation of Money to that Use shall be for a longer Term than two Years”. Article I, Section 8, Clause 12. This enables the House of Representatives–the House of Congress electorally closest to the people and (in political theory, at least) most concerned with protecting their lives, liberties, and property–to prevent an army from continuing in existence when it serves no purpose that justifies its expense, or when it threatens Americans’ freedoms. Similarly, had the Founding Fathers contemplated a navy as a permanent establishment, they would not have bothered to empower Congress “[t]o * * * maintain” one. So, Congress can “raise Armies” and “provide a Navy” if it deems that course prudent; but it can also refuse to do so, or refuse to continue to “support Armies” or “maintain a Navy”. Distinguishably, though, the Constitution plainly presumes that “the Militia of the several States” existed as of its ratification, and will continue to exist thereafter, whatever Congress may do or not do. Which, of course, follows from the historic definition of the “Militia” as the whole body of the people of each State, armed and accoutred for military service with appropriate firearms and ammunition always maintained in their personal possession.

Moreover, “[t]o provide for organizing * * * the Militia”, or for “arming, and disciplining” them, cannot license Congress to proceed in whatever whimsical manner its Members may choose. First, in light of the critical purposes the Militia may be called upon to serve–”to execute the Laws of the Union, suppress Insurrections and repel Invasions”–the Constitution cannot possibly contemplate, or tolerate, complete Congressional inaction on this score. See Article I, Section 8, Clause 15. Nonfeasance is not an option. For with the delegation of any constitutional power comes the imposition of a corresponding constitutional duty to exercise that power whenever necessary and proper. Compare United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), with the Preamble (”insure domestic Tranquility” and “provide for the common defence”); Article I, Section 8, Clause 18; and Article VI, Clause 3 (”Oath or Affirmation, to support this Constitution”). Surely, Congress cannot have exercised its constitutional power, and fulfilled its constitutional duty, “[t]o provide for organizing, arming, and disciplining, the Militia” if they remain unorganized, unarmed, and undisciplined, whether in whole or in large part.

Second, the Constitution cannot possibly contemplate, or tolerate, Congressional negligence or error, either. Misfeasance, too, is not a option. The Constitution does not define the verbs “organizing, arming, and disciplining, the Militia”. But, that does not leave Congress wholly at sea. In the Founding Fathers’ minds, the proper definitions naturally arose from the Colonial and State history with which all Americans of their era were intimately familiar. So, “organizing, arming, and disciplining, the Militia” constitutionally means proceeding according to the historic pattern of American experience: the whole body of the people, armed and trained along contemporary military lines with appropriate firearms and ammunition always maintained in their personal possession. Because if the whole people–or any significant subset of them, for that matter–are not “organiz[ed], arm[ed], and disciplin[ed]” according to that pattern, they do not constitute “Militia” in the American sense of that term at all.

Third, under no circumstances can the Constitution possibly contemplate, or tolerate, Congress’s refusal to follow the law. Malfeasance is beyond the pale. Inasmuch as the power “[t]o provide for organizing, arming, and disciplining, the Militia” does not allow Congress to leave the Militia unorganized, unarmed, and undisciplined through sloth or incompetence, it most assuredly precludes Congress from actually disorganizing, disarming, or disarraying the Militia–whether this results from intentional malevolence or from willful blindness to or reckless disregard of the consequences of its actions. “To provide for organizing, arming, and disciplining, the Militia” are affirmative verbs. And “[a]ffirmative words are often, in their operation, negative of other objects than those affirmed”. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). Thus, those words not only delegate a power, and impose a duty, but also create an absolute disability. Under no circumstances may Congress leave the Militia unorganized, unarmed, or undisciplined–let alone knowingly and intentionally impose such conditions.

Of the three requirements for the Militia–organization, arms, and discipline–arms are the most important. Organization and discipline are next to useless without arms. Even a rabble in arms can give some good account of itself, and can slowly organize and develop discipline while it maintains an minimally adequate posture of self-defense. But unarmed people are almost always helpless, hapless, and hopeless.

Although Congress has a constitutionally duty to “arm[ ]” the Militia, and a constitutional disability to disarm them, it need not act directly. “To provide for * * * arming * * * the Militia” does not necessarily require actual “arming” of individuals by the government itself from public arsenals. (Perhaps the necessary involvement of the government is why Congress’s power as to an army or navy is “[t]o raise” or “[t]o provide” simpliciter, rather than “[t]o provide for raising”.) Indeed, for the government to arm the Militia is probably the politically least prudent way for Congress and the States to fulfill their responsibilities on that score, as well as being the course least in keeping with historic practices. Instead, Congress and the States can and ought to “provide for * * * arming * * * the Militia” by relying on the method universally used in the pre-constitutional Colonial and State Militia Acts: individual self-help through resort to private commerce in arms and ammunition in the free market.

Requiring members of the Militia to arm themselves largely shifts the economic burden from taxpayers to those individuals who have the ability to pay. More importantly, though, it protects all individuals from the sudden imposition of usurpation and tyranny that would be possible were the provision of arms a governmental monopoly. After all, for individuals throughout the Nation to arm themselves for Militia purposes demands:

• a large number of private manufacturers, distributors, and retailers of arms and ammunition;
• a nationwide free market for commerce in arms, ammunition, and accoutrements;
• no general “gun-control” statutes at the National, State, or local levels; and
• a judicial system that does not hold the production, sale, possession, and use of firearms and ammunition hostage to predatory trial lawyers.

Unfortunately, one important condition for constitutionally “arming * * * the Militia” is almost totally absent in contemporary America: namely, the legal requirement found in every pre-constitutional Militia Act, that common Americans purchase (or otherwise acquire), possess in their homes, and regularly train with their personal firearms, or be subject to fines or other penalties. But an anti-constitutional condition is all too prevalent: namely, general “gun-control” statutes that deny to almost everyone the right to possess or use certain types of firearms (such as “assault weapons”), kinds of ammunition, or accoutrements (such as “high-capacity magazines”) within some jurisdictions, or that totally disarm large segments of the population on the basis of some geographical criteria (such as “gun-free zones”) or legal disabilities attaching to the person.

The present plethora of general “gun-control” statutes at the National, State, and local levels arises from politicians’ and judges’ disregard of the precept that “the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.” Williams v. Rhodes, 393 U.S. 23, 29 (1968). For example, at the National level most “gun-control” statutes have been enacted under color of Congress’s powers “[t]o lay and collect Taxes” or “[t]o regulate Commerce”. Article I, Section 8, Clauses 1 and 3. In effect, this sets aside the explicit power and duty to “arm[ ] * * * the Militia” in Article I, Section 8, Clause 16 in favor of a contradictory power to “disarm[ ]” everyone hidden in Clauses 1 and 3. Apparently, no one among Washington’s power elite has noticed (or cares to take into account) that “[t]he fundamental [constitutional] principles” in Clauses 1, 3, and 16 “are of equal dignity, and neither must be so enforced as to nullify or substantially impair the other”. Dick v. United States, 208 U.S. 340, 352 (1908). Or, that no rational constitutional jurisprudence can employ Clauses 1 and 3 so as to transmogrify the affirmative duty of Clause 16 into a negative power. Modern legislators, judges, and law professors may be that illogical or dishonest. But to impute such stupidity or duplicity to the Founding Fathers is defamatory in the extreme.

States and localities cannot enact general “gun-control” statutes either, because such statutes directly interfere with Congress’s fulfillment of its duty “[t]o provide for * * * arming * * * the Militia”–indeed, undermine the very existence of the Militia as the armed body of the people–which the Constitution mandates and requires the States and their subdivisions to treat as “the supreme Law of the Land”. Article VI, Clause 2. Moreover, the permanent incorporation of “the Militia of the several States” into the Constitution requires the States to keep up their Militia, whatever Congress may do or not do. Because, in American historical experience, the whole population of free males comprised “the Militia of the several States”, and was always armed to almost the last man with the latest firearms suitable for military service, the States must maintain at least that level and quality of armament throughout their citizenry–which result, of course, general “gun-control” statutes are intended to prevent. That is, the existence of “the Militia of the several States” as a permanent part of the Constitution’s federal structure renders all general “gun-control” statutes unconstitutional.

Congress has a further 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. Self-evidently, it would be next to useless to “call[ ] forth the Militia” for these purposes of “homeland security”, were the Militia not properly “organiz[ed], arm[ed], and disciplin[ed]“. So the constitutional mission of the Militia underlines the absolute necessity for Congress to secure “the right of the people to keep and bear Arms”, by “provid[ing] for * * * arming * * * the Militia”.

(c) The President. The President cannot participate in–or even passively tolerate–any program aimed at disarming common Americans because, by historic definition, “the Militia of the several States” consist of the body of the American people, armed and trained along contemporary military lines with appropriate firearms and ammunition always maintained in their personal possession. “The President shall be 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. So, for the President to cooperate in disarming, or to stand idly by while others disarm, the people would be for him to help destroy the Militia, and thereby eliminate his own position as “Commander in Chief” thereof, in direct defiance of his own constitutional appointment. It would hardly overstate the case to label such constitutionally self-contradictory behavior “legally psychotic”.

Moreover, the President also labors under a duty to “take Care that the Laws be faithfully executed”. Article II, Section 3. Performance of this duty may require that the Militia be “call[ed] forth * * * to execute the Laws of the Union”. Article I, Section 8, Clause 15. The efficacy of the Militia in this service will require that they be properly “organiz[ed], arm[ed], and disciplin[ed]“. Clause 16. Therefore, the President cannot enforce, or allow others to enforce, any general “gun-control” statute (National, State, or local) that results in disarming all or a large part of the people who comprise the Militia. For any such statute must be unconstitutional. And “[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). If “not a law” at all, then such a “gun-control” statute cannot possibly be among “the Laws [to] be faithfully executed” by the President. Rather, the President must “execute[ ]” “the supreme Law” of the Constitution to set such a inherently invalid statute aside entirely and permanently, and to prevent its enforcement in any particular against anyone.

(d) The Courts. Perhaps the less said about the contemporary courts the better. To expect them to recognize and protect, let alone to advance, “the right of the people to keep and bear Arms” plumbs the depths of blindness and folly. Modern judges are drawn from the legal intelligentsiia, the vast majority of whom are corrupted and compromised by anti-constitutionalist ideology, the lust for power, outright personal greed heedless of its anti-social consequences (especially the so-called “plaintiffs’ bar” of personal-injury trial lawyers), and a thoroughgoing contempt for common Americans and this country’s traditions. Moreover, in the main they wallow on the Bench in grandiose self-importance and narcissistic self-absorption that rivals the rank self-adulation characteristic of talentless movie stars and tone-deaf pop vocalists. Worst of all, most of them utterly belie their titles of “Your Honor” by practicing continual, cynically calculated intellectual dishonesty–a vice for which vanishingly few are ever held accountable, as the errors or lies of one rotten judge are appealed to some other equally unscrupulous jurists, in most cases simply to be covered over with a whitewash compounded of different errors or lies.

Assuming for the sake of argument, though, that one could successfully appeal to rationality and fairness in the courts, four conclusions would be undeniable:

• “The right of the people to keep and bear Arms” cannot be subjected to any “compelling governmental interest test”, because neither the General Government nor any State can possibly put forward any “interest”–and certainly no “compelling interest”–for destroying or debilitating “the Militia of the several States” that the Constitution incorporates in its federal system as a governmental institution or entity. If We the People ever deceive themselves into believing that they have a “compelling interest” in abolishing or emasculating their own Militia, they must amend the Constitution to that effect. Article V.
• No firearms, ammunition, or accoutrements can be banned, confiscated, punitively taxed, or subjected to licensing or registration simply on the basis of whatever “bad names” “gun-control” wordsmiths may fashion to demonize them. For essentially any firearm, ammunition, or accoutrement could be used by “the Militia of the several States” in one of their many roles–particularly as guerrillas, partisans, or resistance fighters opposing usurpation and tyranny–and therefore must be freely available to members of the Militia, in their personal possession, at all times.
• No warrant exists for the establishment of almost all “gun-free zones”, there being no place in this country where the laws need not be enforced (especially against violent criminals and psychopaths), where it might not be necessary to suppress sudden insurrections, or especially where Americans must not be ready at all times to repel invasions in the persons of agents of global terrorism.
• Finally, the constitutional reasoning of Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76-78 (1869), absolutely prohibits Congress from enacting general “gun-control” statutes that destroy or debilitate “the Militia of the several States”. Lane County teaches that Congress cannot exercise its monetary power so as to require the States to employ Congressional legal-tender paper currency, in preference to some other media of exchange they desire to use in the performance of their sovereign functions–even when the Supreme Court holds that Congress enjoys a power to emit such currency, and the Constitution explicitly withdraws from the States all power to create any form of money on their own. Article I, Section 10, Clause 1. If so, then Congress cannot require the States to suffer their Militia to be disarmed, either, when Congress itself has no power whatsoever to “[dis]arm[ ]” the Militia, but only a power to “arm[ ]” them; when the Constitution explicitly recognizes the Militia as “the Militia of the several States”, not “of the United States”; when no provision of the Constitution disables the States from maintaining their Militia with proper armaments; and when the Militia comprise one of the two great sovereign powers of any government: the Power of the Sword, and the Power of the Purse. Indeed, inasmuch as Lane County holds that Congress cannot interfere with any State’s exercise of her sovereign Power of the Purse, how Congress could interfere with any State’s exercise of her even more important sovereign Power of the Sword passes understanding.

PART FOUR

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

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.

(continued in part three)