MILITIA OF THE SEVERAL STATES"
Edwin Vieira, Jr., Ph.D., J.D.
Concluding the analysis of the Militia in the Constitution begun in Parts I - VIII of the previous parts of this commentary, we turn to...
�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 co�rdinated 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
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:
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:
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?"
are we all going to do--NOW, while there is still time?
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.
Thanking you in advance.
� 2005 Edwin Vieira, Jr.
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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:
"[T]he right of the people to keep and bear Arms" is under constant and co�rdinated 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...