MILITIA OF THE SEVERAL STATES"
Edwin Vieira, Jr., Ph.D., J.D.
Continuing the analysis of the Militia in the Constitution begun in PART ONE and PART TWO of this commentary, we turn to...
3. The roles of the States, Congress, the President, and the Courts with respect to "the Militia of the several States". By incorporating "the Militia of the several States" as they existed and operated prior to its ratification, the Constitution makes several matters perfectly clear:
(a) The States. The Constitution recognizes and permanently includes as part of its federal system only "the Militia of the several States". It neither recognizes nor creates any "Militia of the United States" at all--because no such militia ever existed, and the Founding Fathers evidently desired that no such militia be formed. True, "the Militia of the several States" may be "call[ed] forth" by Congress "to execute the Laws of the Union, suppress Insurrections and repel Invasions"; "such Part of them as may be employed in the Service of the United States" for those purposes may be "govern[ed]" as Congress directs; and "[t]he President shall be Commander in Chief * * * of the Militia of the several States, when called into the actual Service of the United States". Article I, Section 8, Clauses 15 and 16; and Article II, Section 2, Clause 1. But even when temporarily "call[ed] forth", "govern[ed]", and subjected to the President's command "in[ ] the actual Service of the United States", "the Militia of the several States" nevertheless retain their identities and natures as permanent State institutions. The Constitution authorizes neither Congress nor the President to do anything that detracts from, let alone contradicts, these identities and natures.
For that reason, the Constitution authorizes neither Congress nor the President to employ the Militia so as to attack, subvert, or in any other way undermine any State's existence, powers and authority, or her "Republican Form of Government"--or to refuse to employ the Militia to protect those attributes. None of "the Militia of the several States" can be used, actively or passively, against any of "the several States".
Although the Constitution recognizes "the Militia of the several States" as State institutions, the States themselves cannot dispense with the Militia, in whole or material part, because the Constitution presupposes the permanence of the Militia, and the Constitution is "the supreme Law of the Land", which all State officials "shall be bound by Oath or Affirmation, to support". Article VI, Clauses 2 and 3. If the States could dissolve their Militia or allow them to fall into decrepitude, could disregard the Militia's historic principles, could deprive the Militia of their historic purposes and functions, or could deny the Militia the means necessary to perform those purposes and functions, the States could thereby
See Article I, Section 8, Clause 15; Article II, Section 3; Article IV, Section 4; and Article I, Section 10, Clause 3. These dire consequences disprove even the arguable existence of any license in the States to disestablish their Militia.
Thus, because the Constitution guarantees the permanent existence of "the Militia of the several States" in the plenitude of their historic principles, with all the means necessary to perform their purposes and functions, the States cannot disarm the Militia. For disarmed Militia are no Militia at all. On the other hand, if Congress fails, neglects, refuses, or is simply unable to exercise its own constitutional power and duty "[t]o provide for * * * arming * * * the Militia", or attempts to usurp a power to disarm the Militia (through some National "gun-control" statute), the States must themselves arm their Militia, and take whatever other actions may be necessary to thwart the enforcement of such an unconstitutional statute.
Because the Militia are State institutions, the Constitution reserves to the States an exclusive power and duty to "govern[ ] such Part of them as may [not] be employed in the Service of the United States", and a concurrent power and duty to provide for "organizing, arming, and disciplining" their Militia if Congress fails, neglects, refuses, or is unable to do so, in whole or in part. See Article I, Section 8, Clause 16; Amendment X; Amendment XIV, Section 1; and Houston v. Moore, 18 U.S. (5 Wheaton) 1 (1820). Indeed, if negligent or criminal Congressmen, by shirking their duties or conspiring to defeat the Constitution, could by nonfeasance, misfeasance, or malfeasance render the Militia impotent and thereby put the Nation and States in peril, and the States nevertheless were powerless to correct the situation, "the Militia of the several States" would be nothing but a verbal shadow without substance.
The Constitution reserves to the States "the Authority of training the Militia according to the discipline prescribed by Congress". Article I, Section 8, Clause 16. If Congress fails to "prescribe[ ]" such "discipline", and in all cases where any Congressionally mandated "discipline" does not apply, the States do not need Congress's permission to administer their Militia as they may judge to be necessary and proper. Prior to ratification of the Constitution, the States' powers over their Militia were plenary. The Constitution delegated to Congress certain limited powers with respect to the Militia--which powers, if Congress properly exercises them, are "the supreme Law of the Land" that supersede conflicting State laws. Article VI, Clause 2. Otherwise, the States retain a concurrent power to enact laws to govern their Militia. Amendment X.
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
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
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:
To my readers:
I am now working on a constitutional program of "homeland security" based on "the Militia of the several States". This is probably the most important project on which I have ever embarked. It will also be the most difficult to fund, because next to no one among the powers that be, "conservative" or "liberal", wants to see the Militia revitalized.
Therefore, I appeal to common Americans for whatever financial support they can offer to advance this work. Contributions should be made out to me, marked "Militia Project", and mailed to 13877 Napa Drive, Manassas, Virginia 20112. All contributions will be hypothecated to this work only.
Even if you cannot contribute, please drop me a line to let me know that you believe this effort is important.
you in advance.
Anyone who has ever attended a firearms-training course conducted
by NRA-certified instructors can appreciate why "knowledge", "skills",
and "attitude" are central to everything concerning the lawful and
competent use of firearms.
© 2005 Edwin Vieira, Jr.
- All Rights Reserved
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Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
His latest book is: "How To Dethrone the Imperial Judiciary"
He can be reached at:
The last-mentioned point is of fundamental importance. When the Constitution incorporated "the Militia of the several States" into its federal system, it did so without defining them in any of those particulars.