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By Dr. Edwin Vieira, Jr., Ph.D., J.D.
June 8, 2009

In light of the recent decisions of the Seventh Circuit Court of Appeals in NRA v. City of Chicago, holding that the Second Amendment does not apply to the States, and of the Ninth Circuit Court of Appeals in Nordyke v. King, holding that the Amendment does apply, some overview and prognostication may be in order.

The error in the Seventh Circuit’s decision is obvious, inasmuch as the original Constitution itself describes the Militia as “the Militia of the several States”, and the Second Amendment declares that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”. Self-evidently, the “Militia” of which the Second Amendment speaks are “the Militia of the several States”, to the formation of which “the right of the people to keep and bear Arms” is critically instrumental. Ergo, the States have no power to deny this “right” and destroy “the Militia of the several States” indirectly, any more than they have the power to excise “the Militia of the several States” from the Constitution directly. But, in this particular, the Constitution—although it was written for farmers, mechanics, tradesmen, merchants, and other common Americans in the late 1700s—seems to be too difficult for some of the marsupial minds in the current Kangaroo Kourts to understand.

Of course, the Nordyke case holds that the Second Amendment does apply to the States. But what is the practical difference between these two opinions? Nothing at all. In one, the court held that the Second Amendment does not apply to the States, and therefore individuals’ “gun rights” can be denied. In the other, the court held that, notwithstanding that the Second Amendment does apply to the States, individuals’ “gun rights” can be denied. So, whether the poor chumps demanding their “gun rights” win or lose on the applicability of the Second Amendment to the States, they find themselves frozen out on the merits!

Now a writ of certiorari may be granted on the grounds of “a split among the Circuits”, and America will be forced to suffer through the rounds of another circus maximus at the Supreme Court, only to be handed another District of Columbia v. Heller decision, telling We the People that, although the Second Amendment does apply to the States, the States may override it in order to enforce “reasonable regulation”, or to achieve “compelling government interests”, or to enjoy some other license from constitutional restraints courtesy of a few paragraphs of judicial mumbo jumbo! Or telling We the People that the Amendment does not apply to the States on the grounds of some equally vapid double-talk. But in either event telling We the People that, once more (and forever), they are the losers.

In anticipation of some such fiasco, it seems appropriate to provide a “different take” on these matters for the ether’s “I told you so” file. The following excerpt is from a draft of the second volume of my series Constitutional “Homeland Security”, Constitutional Principles of the Militia. The context is the pre-constitutional Militia of Virginia, but the applicability of the principles discussed is as contemporary as it could be:

[...start of excerpt...]
That most Militiamen owned—and if they did not own at least continuously possessed in their places of abode—the firearms, ammunition, and accoutrements they brought to their Militia service provides an important insight into the meaning of the Second Amendment’s command that “the right of the people to keep and bear Arms, shall not be infringed”.

Distinguishably from Militiamen, members of Virginia’s regular armed forces who received public arms typically surrendered them at the completion of their service. Indeed, on at least one occasion, Virginia even required some of her troops to take an oath to that effect:

[1775] “I * * * swear, that I will be faithful and true to the colony and dominion of Virginia; that I will serve the same to the utmost of my power, in defence of the just rights of America, against all enemies whatsoever; that I will, to the utmost of my abilities, obey the lawful commands of my superiour officers, * * * and lay down my arms peaceably, when required to do so, either by the General Convention or General Assembly of Virginia.”

Militiamen who owned and possessed their own arms were never compelled to surrender them to public officials, even when some of them were properly exempted from some or all Militia service because of disability, superannuation, removal from the Commonwealth, or other reason. No statute purporting to impose such a general surrender ever saw the light of day in Virginia, in Rhode Island, or in any other Colony or independent State during the pre-constitutional era. True enough, “poor” Militiamen who received arms from the Commonwealth also returned those arms to their Militia officers as soon as their own service in the Militia ended. But, although they never attained actual legal title to the arms the Commonwealth supplied, while their service continued these “poor” Militiamen were never deprived of personal possession of those arms, except perhaps to turn them over to other Militiamen for the performance of those Militiamen’s service (as, for example, in the case of rotation in duty). So, save for those unavoidable (and presumably short) periods of time during which Militia officers transferred possession from one “poor” Militiaman to another, a public firearm used for this purpose never left the personal custody of some Militiaman required to employ it as his own firearm in the fulfillment of his own Militia duties.

All this, of course, was the result of a statutory structure, in Virginia as elsewhere throughout pre-constitutional America. But when the Constitution incorporated into its federal system “the Militia of the several States” as they existed during those times, every member of every one of “the Militia of the several States”, unless properly exempted according to constitutional principles, thereafter became and remains today subject to a constitutional duty at least to possess, if not also actually to own, a firearm, ammunition, and accoutrements suitable in some manner for Militia service. And, howsoever he may lawfully acquire that equipment, every member of any of “the Militia of the several States” enjoys at least a constitutional right to possess it, and most likely also a constitutional right of actual ownership of it, in order to perform that constitutional duty.

The Second Amendment states this conclusion in a slightly different fashion: “[T]he [constitutional] right of the people” is “to keep and bear Arms”. The purpose of this “right” is to fulfill “the people[’s]” constitutional duty to serve in “well regulated Militia”, which are “necessary to the security of a free State”. In any “well regulated Militia”, each Militiamen always possesses, and usually owns, one or more “Arms” suitable for Militia service, which he “keep[s] and bear[s]”. Therefore, the injunction “shall not be infringed” means, at the minimum, that no public official—whether of the General Government or of any State—is authorized to deprive any member of “the Militia of the several States” of his ownership or possession of such firearms, or of the ability to acquire them in the first instance through the free market if some public agency does not supply them directly.

Not just that, either. When an individual member of the Militia qualifies for an exemption from Militia service—as through disability, superannuation, or some other legitimate reason—if the firearm he theretofore acquired for and used in his Militia service is his own “property”, he cannot thereafter be “deprived of * * * [it] without due process of law”. And the only instance generally recognized for such a deprivation in pre-constitutional times was “impressment”, whereby the firearm could be taken for, and only for, the public use for which it was competent—namely, Militia or other military service—and even then only with just compensation to the expropriated party. In addition, the mere status of that individual as exempted from the Militia can never be a basis for his disarmament, because an exemption does not extinguish his legal obligation to serve if called, and therefore he always remains a potential active member of the Militia: If his exemption arose from some personal disability, he could possibly be cured. If his exemption was founded simply on his superannuation, if still healthy he could volunteer for further service in the Militia. And if his exemption rested on partial disability or some other ground, it could be disallowed by legislative action, because no exemption from Militia service is of constitutional stature other than the physical impossibility of a Militiaman’s performance of any duty whatsoever. Similarly for a Militiaman who did not own, but merely possessed on loan, a firearm during his term of service, but who obtains a firearm, either of his own or on loan from some legitimate source, after that term ends: The acquisition of that new firearm can always be justified—and constitutionally protected—as in furtherance or anticipation of his renewed Militia service.

Thus, no individual either (i) who is an actual member of the Militia at the present time, or (ii) who was an actual member of the Militia and although now exempted from Militia service could be eligible for future active membership in the Militia, can lawfully be deprived of ownership or possession of a firearm suitable for Militia service. And inasmuch as essentially every firearm can conceivably be employed in some profitable manner in Militia service, no such individual can lawfully be deprived of any such firearm. Therefore, inasmuch as actual or potential members of the Militia, men and women, encompass almost every last adult American among “the people”, the injunction “shall not be infringed” applies universally, to every American, to every type of “Arms” suitable for Militia service, everywhere, and at all times. Or, no conditions could possibly exist under which any significant segment of WE THE PEOPLE, not enlisted within the regular Armed Forces, must “lay down [their] arms peaceably, when required to do so [by any public official]”. No public official has any power so to require. And WE THE PEOPLE labor under no duty to obey any command issued under color of such a non-existent power.

This follows not only from the practical consequence of the general rule pertaining to individuals’ possession of firearms for Militia service during the pre-constitutional era, but also from consideration of why this rule existed at all. If WE THE PEOPLE did “lay down [their] arms”, not just “well regulated Militia”, but any true “Militia” whatsoever would cease to exist. What is “necessary to the security of a free State” would no longer be available. With its security hopelessly compromised, each and every erstwhile “free State” would collapse—perhaps into the chaos of anarchy, but more likely into the clutches of tyranny. No “free State”, however, can exercise a power to commit political suicide or to perpetrate the political mass-murder of its citizens. A power to destroy itself or its citizens is not among the “just powers” that any government could “deriv[e] * * * from the consent of the governed”, because “Governments are instituted among Men” to “secure [unalienable Rights]”, not to allow them to be violated, let alone affirmatively to participate in their violation. And if such a “Government”, purporting to exercise such an “unjust power[ ]”, did expose the community to such mortal danger, it would be the people’s duty, as well as their right, under “the Laws of Nature and of Nature’s God” immediately “to throw off such Government, and to provide new Guards for their future security”.

[...end of excerpt, endnote and footnotes omitted...]

This material is drawn from pages of the draft tentatively numbered 367 through 370—from which datum one can gain a sense of how extensive and comprehensive this work will eventually turn out to be (if it ever sees the light of day).

The question is, will these ideas (and many others that accompany them in the book) ever have any positive and timely impact on the course of the on-going struggle for Second Amendment rights and “the security of a free State”? I hope they will; but I suspect they may not. Because the people in the forefront of the “gun-rights” lobby—other than a few gems such as Larry Pratt and Aaron Zelman—are coming at the problem from the wrong end of the horse, so to speak. (By the way, go to <> and view Aaron Zelman’s powerful and painfully true new documentary, “No Guns for Negroes”, to see how this matter should be approached.)

Asking America’s Kangaroo Kourts for assistance in enforcing the Second Amendment is politically suicidal. Even a decision of the Supreme Court—which is the “Holy Grail” for so many “gun-rights” advocates—is not the same as the Constitution. Decisions of the Supreme Court do not determine what the Constitution means—the Constitution had a fixed meaning before the first Justice of the Supreme Court was appointed. Rather, the Constitution determines whether a decision of the Supreme Court is correct or incorrect—and, in proof of this, the Supreme Court has made, and admitted to, serious errors in constitutional interpretation time and again. Thus, rather than promoting the Constitution, the judicial strategy being followed today by far too many “gun-rights” advocates actually advances an anti-constitutional principle: namely, that “We the Judges”, rather than We the People, exercise sovereignty in this country.

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If We the People actually want to exercise their sovereignty, they must do it, not in court rooms from which issue all-too-often-faulty “judicial opinions”, but in their State legislatures, where true “laws” are made. In the long run, this will prove to be, not just a better way, but the only way. Unfortunately, when that realization finally dawns on the “gun-rights” gurus, there may not be sufficient time remaining for anything else to be done to avoid the imposition on America of a first-class para-military police state. If so, please do not complain when everything turns out badly. I did tell you so. And more than once.

� 2009 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.

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.

His latest book is: "How To Dethrone the Imperial Judiciary" ... and Constitutional "Homeland Security," Volume One, The Nation in Arms...

He can be reached at his new address:
52 Stonegate Court
Front Royal, VA 22630.

E-Mail: Not available









Self-evidently, the “Militia” of which the Second Amendment speaks are “the Militia of the several States”, to the formation of which “the right of the people to keep and bear Arms” is critically instrumental.