Are You Doing Your Constitutional Duty For “Homeland Security”?
“Are You Doing Your Duty For Constitutional ‘Homeland Security'”—by Dr. Edwin Vieira, Jr., Ph.D., J.D.
What is the fundamental constitutional institution for “homeland security”? On the answer to this question may depend the continued independence and freedom of the United States.
Obviously, such an institution must exist, because, as the Preamble states, one important goal of the Constitution is to “provide for the common defence”. Just as obviously, however, this institution is not the recently birthed Department of Homeland Security or even the more pedigreed Department of Defense. For the Constitution mentions neither of them.
The fundamental constitutional institution for “homeland security” is not even the Army or Navy. America’s Founding Fathers profoundly distrusted standing armed forces under the control of any government as potential enemies of liberty, not least of all because of their own experiences with the British Army’s attempts to suppress freedom in the Colonies and independent States. So, in the Constitution, the Founders refused to adopt any preexisting army or navy, or to create new ones, as permanent establishments for the United States.
True, the Constitution delegates to Congress the powers “[t]o raise and support Armies” and “[t]o provide and maintain a Navy”. Article I, Section 8, Clauses 12 and 13. And with such powers comes a duty to exercise them, when necessary and proper. Compare United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), with Article I, Section 8, Clause 18. Otherwise, though, Congress need never “raise and support”, and need not continuously “provide and maintain”, an army or a navy. Furthermore, 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 chary of 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.
In addition, the Constitution provides 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. So, nowhere in the federal system does the supreme law of the land treat an army or navy as an inevitable, indispensable, permanent, or perpetual institution.
Where, then, should Americans look for constitutional “homeland security”? The Second Amendment to the Constitution provides the first giant steps towards the answer:
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.
By definition, “the security of a free State” is “homeland security” (the “homeland” being, not simply a geographical area, but a special political conception rooted in freedom). The Amendment describes “[a] well regulated Militia” as “necessary” (not simply useful) for such “security”. And the Amendment singles out “the right of the people to keep and bear Arms” as so important to the existence of such a “Militia” that “the right * * * shall not be infringed”. Therefore, the fundamental constitutional institution of “homeland security” must be “[a] well regulated Militia” based upon “the right of the people to keep and bear Arms”.
Perhaps more importantly, the body of the Constitution itself is not silent on this matter, either. To be sure, the Constitution does not create any “well regulated Militia”. It delegates no power to Congress to “raise and support” (as with an army), to “provide and maintain” (as with a navy), or in any other words to fashion from whole cloth any “well regulated Militia”. And it does not even define what constitutes such a Militia. That is because it did not have to: In the late 1700s, every adult American knew that “well regulated Militia” had existed in the Colonies and independent States from the mid-1600s, and were established in every State of the Union even as the Constitution was being drafted and ratified. For that reason, the Constitution simply acknowledged “the Militia of the several States” as already in existence, adopted and incorporated them according to the historical legal principles by which they had long and even then operated, and thereby perpetuated them in that form. See Article I, Section 8, Clauses 15 and 16; and Article II, Section 2, Clause 1.
The denotation “Militia of the several States” recognizes that the Militia lie largely outside the jurisdiction of the General Government. Thus, “[t]he President shall be Commander in Chief * * * of the Militia of the several States”, but only “when [they] are called into the actual service of the United States”. And Congress is empowered “[t]o provide * * * for governing such Part of them as may be employed in the Service of the United States”, but not otherwise. Moreover, these powers are to be exercised only when Congress “provide[s] for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. For example, see Title 10, United States Code, Sections 331 to 333. Self-evidently, if Congress and the President may govern and command the Militia only when “such Part of them” are in fact “call[ed] forth” for certain defined and limited National purposes, during all other times the Militia must remain within some other legal and territorial jurisdictions from which they may be “call[ed] forth”, and therein must be subject to other governance and command: namely, that of “the several States”.
By recognizing, adopting, incorporating, and perpetuating “the Militia of the several States” as they historically existed, the Constitution immunizes them from fundamental changes in their legal composition and characteristics through mere legislative acts (as opposed to constitutional amendments). The Constitution does impose certain new National duties on the Militia when they are “call[ed] forth * * * to execute the Laws of the Union, suppress Insurrections and repel Invasions”. This, however, also empowers them in these particulars, both when “call[ed] forth” according to laws that Congress “provide[s]”, and in those situations in which the Militia ought and need to be “call[ed] forth” but Congress refuses, fails, or is unable to do so. Even more important, by incorporating “the Militia of the several States” with no other additions to, subtractions from, or modifications of their historical legal composition and characteristics, the Constitution preserves in all other respects the fundamental rights, powers, privileges, duties, and immunities that the Militia exercised and enjoyed throughout the period from the mid-1600s through the late 1700s.
Because the Constitution itself empowers “the Militia of the several States” for National purposes, the Militia are not optional, discretionary, or disposable for Congress, the President, the Judiciary, the States, or even We the People. First, because the Militia are “the Militia of the several States”, Congress lacks all authority either to create or to dissolve them. Congress also lacks authority to disregard, neglect, or impede the Militia, with respect either to their 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 the[m]”. Article I, Section 8, Clauses 15 and 16. The President “shall be” their “Commander in Chief” “when [they are] called into the actual Service of the United States”. Article II, Section 2, Clause 1. And the Judiciary lacks authority to absolve either Congress or the President of these responsibilities.
Second, although “the Militia of the several States” are State institutions, the States cannot dispense with them, either, because the Constitution presupposes their permanence, and the Constitution is “the supreme Law of the Land”. Article VI, Clause 2. Obviously, if the States could dissolve their Militia at will, they could erase Congress’s power to “call[ ] forth the Militia”. They could render unfulfillable the duty of the United States 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. And they could even disarm themselves from “engag[ing] in War” when “actually invaded, or in such imminent Danger as will not admit of delay”, because (absent dispensation from Congress) they would have no other armed forces to deploy. Article I, Section 10, Clause 3.
Third, 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 refuses, fails, 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 a negligent or criminal Congress, by shirking its duties or conspiring to defeat the Constitution, could render the Militia impotent and thereby put the Nation and States in peril, and the States nevertheless could do nothing to correct the situation, it would be absurd to speak of “the Militia of the several States” at all.
Fourth, because (as Part Two of this article will explain) the Militia are composed of We the People in arms, all Americans retain the right and reserve the power to array themselves in “the Militia of the[ir] several States” should Congress and the States completely fail, neglect, or refuse to perform their duties in that particular. This right and power derives from:
• We the People’s explicit adoption, incorporation, and empowerment of the Militia in the Constitution, which cannot be defeated by inaction, incompetence, negligence, or criminality on the part of their mere agents;
• the mandate of the Second Amendment, which recognizes (i) “[a] well regulated Militia” as “necessary to the security of a free State”, (ii) “the right of the people to keep and bear arms” as the precondition for such a Militia, beyond the power of public officials to “infringe[ ]”, and therefore (iii) the right of the people to form themselves into constitutional Militia when “the security of a free State” is at risk; and, in the final analysis,
• in the case of a criminal conspiracy among public officials to deprive Americans of their lives, liberties, or property, the overarching principle of the Declaration of Independence, that “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce the[ people] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security”.
Concomitant with this right and power, furthermore, is the personal constitutional duty of every American to serve in the Militia in some capacity, unless excused by immaturity, senility, physical disability, or other proper legal exemption or disqualification. If Congress and the States fail or refuse to exercise their powers and to fulfill their duties with respect to the Militia, each and every American must fill the gap by exercising his own duties within the boundaries of the law. This cannot be emphasized too strongly, because constitutional duties typically apply only to public officials or public offices. “[T]he Militia of the several States”, though, are critically important components of constitutional government; and every American (not properly excused) is a working constituent of the Militia.
From their permanence, and the situations which may cause them to be “call[ed] forth”, “the Militia of the several States” leap off the parchment of the Constitution as the primary, and in some circumstances the only available or desirable, constitutional force for “homeland security”. With their usual perspicacity, the Founding Fathers designated the Militia to defend against every salient danger, foreign and domestic, including: “execut[ing] the Laws of the Union, suppress[ing] Insurrections and repel[ling] Invasions” (Article I, Section 8, Clause 15); “guarantee[ing] to every State * * * a Republican Form of Government” and “protect[ing]” them all against “Invasion” and “domestic Violence” (Article IV, Section 4); and even enabling the States to “engage in War” when “actually invaded, or in such imminent Danger as will not admit of delay” (Article I, Section 10, Clause 3). Notable is that, because the Constitution is “the supreme Law of the Land” (Article VI, Clause 2), the Militia may be “call[ed] forth” to “execute the [Constitution]” itself. And because usurpation and tyranny by public officials constitute the gravest possible violations of the Constitution, the Militia are empowered by the Constitution to suppress them–and, in extremis, may even “call[ themselves] forth” for that purpose, as they did at Lexington and Concord in 1775. For, as a constitutional institution, “the Militia of the several States” are a governmental institution. So, the true “federal government” of this country consists of six parts: We the People (the political body, empowered to vote), Congress, the President, the Judiciary, the States, and the Militia (the armed body, empowered to fight).
Yet when and where, in all the strident propaganda and agitation, hubble-bubble, hoopla, and orchestrated paranoia about the need for “homeland security” to defend America against “terrorism”, has anyone in political prominence pointed this out? Or suggested that “homeland security” be based on it? Or proposed a comprehensive revitalization of “the Militia of the several States” as the central focus, or at least a very important part, of “homeland security”? Why, instead, is “homeland security” being used as a cover-story to rationalize the construction of a centralized national police state, for which the Constitution provides no justification whatsoever, but disallows in every particular?
Why have all the worldly wise and powerful, the self-styled “best and brightest”, in Washington, D.C., as well as in State capitals throughout the country, ignored the point that stands out on the face of the Constitution with as much prominence and character as Karl Malden’s nose? Can they not read the Constitution? If they can read it, can they not understand it? If they can understand it, can they not speak out?
Or is their silence the very best evidence that Americans could have of the need to revitalize “the Militia of the several States”?
- Part 2: Are You Doing Your Constitutional Duty For ‘Homeland Security’?
Why are the careerist politicians in Washington, D.C., and in State capitals throughout this country studiously ignoring “the Militia of the several States” as the linchpin—or even any part—of a National program of “homeland security”? Because, although “the Militia of the several States” are constitutionally empowered and mandated to provide “homeland security”, in the long run their revitalization would threaten the Establishment’s hegemony. And that hegemony, in the final analysis, is what the Establishment really means by “homeland security”. To understand this requires recourse to American history.
In every Colony and independent State from the mid-1600s to the late 1700s immediately prior to ratification of the Constitution, the Militia consisted of every able-bodied male, typically from 16 to 50 or 60 years of age, each of whom was required by law to keep in his personal possession at home a firearm suitable for military use (for most of them a musket or rifle, for some a brace of pistols), together with a supply of ammunition (assembled cartridges, black powder, and lead shot); a bayonet, tomahawk, or sword; and other accoutrements necessary to outfit an infantry soldier or cavalry trooper.
Throughout the original thirteen Colonies and States, the laws required each Militiaman to buy his own arms and ammunition in the free market—thus implicitly guaranteeing the existence and operation of such a market. If he were under 21 years of age, or an apprentice or servant, though, a Militiaman could require his parents or employer to supply him with a suitable firearm and ammunition. If he were one of the working poor, he might receive assistance from his local government in obtaining a job through which to earn the money to buy them. And local governments, or very often the Militia, provided publicly owned arms to those individuals too poor to purchase them on their own account. That is, We the People always required themselves to provide themselves with firearms, either directly as individuals, or indirectly through the Militia in which they served or the public officials whom they elected.
Moreover, the Militia statutes of that era generally protected every Militiaman’s personal firearms from encumbrance or seizure for the payment of his debts—and in many instances of his taxes, too.
If not explicitly exempted by statute because he held some important public office or practiced some essential profession or trade (such as legislators, physicians, millers, ferrymen, or ministers of religion), every Militiaman was required to bear his firearm and ammunition into the field on a regular basis in order to train in organized formations so as to become proficient with that firearm according to the military tactics of the day. And almost all Militiamen—including even most of those ordinarily exempted, as well as many normally excused because of old age or disability—were subject to duty in cases of “alarm” (such as invasion or insurrection), where the security of the Colony or State was in immediate and grave peril. In addition, many of those technically exempted nevertheless served the Militia, such as public officials (who were often high-ranking Militia officers), physicians (who staffed medical units), and conscientious objectors (who performed not only non-military duties but also the dangerous functions of scouts and spies).
Typically, too, those not exempted were required by law themselves to serve in, or to provide able-bodied substitutes for, the regular “watch” (by night), “ward” (by day), and “patrols” of plantations (in the South); and to be subject to “drafts” from the Militia for actual service in the field in times of war.
All of these requirements the Militia statutes enforced with monetary fines levied on defaulters’ property, and imprisonment imposed on the defaulters themselves. The Militia were anything but voluntary organizations, their membership anything but limited, the duties they imposed anything but avoidable, and the public services they performed anything but dispensable.
So, in “the Militia of the several States” prior to 1787,
• every man was required by law to acquire and keep his own personal firearm and ammunition (unless he was so poor that the public had to provide them for him);
• every man was protected by law in his possession of firearms, so that he could always perform his Militia duties;
• private industry and commerce provided firearms and ammunition for the Militia through the free market; and
• almost every man so armed and provided was compelled by law to train, and required to perform, personally or by a substitute, a wide range of military and police duties for “homeland security”.
Being the whole community in arms, the Militia of every Colony and independent State constituted the best security that could possibly be devised for what the Second Amendment calls “a free State”—not only against invasion, insurrection, rebellion, and widespread violations of the laws, but also against those especially dangerous violations of the laws by erstwhile public officials known as “usurpation” and “tyranny”.
All this is no merely quaint story-telling about men attired in knee-britches and three-cornered hats, or the anachronistic and academic stuff of Colonial re-enactors and museums at Lexington and Concord. This is what “the Militia of the several States” actually were, codified in every relevant statute of every Colony and independent State throughout a period of almost 150 years prior to ratification of the Constitution. And therefore this is what “the Militia of the several States” still are, because that term incorporated in the Constitution must be interpreted in light of its historical antecedents as known to the Founding Fathers, and continue to be given the selfsame construction until the Constitution is amended (which, with the assistance of Providence, in this particular it never will be). See Eisner v. Macomber, 252 U.S. 189, 206 (1920). The only possible difference to be countenanced today actually amounts to an expansion: Now, with the legal emancipation of women, “the Militia of the several States” arguably includes all able-bodied females, who might be called to serve in some capacities in the most critical, last-ditch situations of State and National defense, freeing men for more arduous duties.
So, constitutionally YOU very likely—indeed, almost surely—are a member of “the Militia of the several States” in the State in which you live. And, if so, the Constitution imposes a duty on YOU to keep and bear arms in the Militia for the defense of your State and Nation, because that is the meaning of the Militia: the people in arms, and therefore the people with arms. And, most importantly, their own arms: their own private property in their own personal possession.
Moreover, because the duty to keep and bear arms is of constitutional stature, each individual enjoys an absolute constitutional right as against every level, department, or branch of government—National, State, and local—to fulfill that duty. Inasmuch as the Constitution requires all of We the People eligible for the Militia to possess their own private arms in their capacity as a governmental institution, then on no account, for no reason, and by the application of no power can any level of government disarm any of them. Indeed, to argue that any other branch of government may disarm the one branch of government that the Constitution specifically requires to be armed is so illogical as to verge on insanity.
Which, of course, is why the Second Amendment speaks specifically of “the right of the people to keep and bear Arms”, not vaguely of “a” right or “some” right. “[T]he right”, preexisting the Constitution, with which every American of that era was perfectly familiar, and which most of them personally exercised. So, too, the Second Amendment links “the right * * * to keep and bear arms” with “[a] well regulated Militia”, because the right to keep and bear arms is inextricably linked to the duty to keep and bear arms, the former being necessary for fulfillment of the latter. “A well regulated” Militia is what every Colonial and State statute mandated for almost 150 years prior to ratification of the Constitution: everyone armed with his own personal firearm and ammunition (unless too poor to buy them for himself, in which case the Militia or other public officials were required to provide them at public expense). “[T]he security of a free State” is an armed people–and therefore “a free State” is one in which everyone possesses his own firearms, knows why he is armed, opposes every attempt to disarm him, and with his arms and training fulfills his duties to provide “security” in just proportion with everyone else.
Now, the Constitution delegates to Congress the power “[t]o provide for organizing, arming, and disciplining, the Militia”. Article I, Section 8, Clause 16. And with such a power comes a duty to exercise it, whenever necessary and proper. Compare United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), with the Preamble (“provide for the common defence”); Article I, Section 8, Clause 18; and Article VI, Clause 3 (“Oath or Affirmation, to support this Constitution”). True, Congress does make some provision for voluntary training of common Americans in marksmanship. See Title 10, United States Code, Sections 4307 to 4313. But has Congress required YOU to obtain, or provided YOU with, a firearm and ammunition; or assigned, or even offered, YOU any duties in some program of “homeland security”? Not unless you have happened voluntarily to join the National Guard or the Naval Militia, which Congress wrongly classifies as “the organized militia”. Title 10, United States Code, Section 311(b)(1). (I say “wrongly”, because the National Guard and Naval Militia were not in existence during the pre-constitutional period; and much of their structures, duties, and operations bears no connection to, or may even contradict, the characteristics of the constitutional “Militia of the several States”.) Even then, as a National Guardsman you would not keep your assigned firearm in your personal possession at home—as necessarily would a member of “the Militia of the several States” (and as do the Swiss, a people with a militia history longer than that of Americans).
Worse yet, what if you have been relegated to “the unorganized militia”, which Congress defines as every able-bodied male “at least 17 * * * and under 45 years of age” who is not a member of the National Guard or the Naval Militia—and which by default includes as well every male from 16 to 17 and over 45 years of age who is constitutionally a member of “the Militia of the several States”, but is ignored entirely by the modern statute? See Title 10, United States Code, Section 311(a) and 311(b)(2). If you are lumped into this “unorganized militia” you are just that: unorganized, unarmed, undisciplined, untrained, unsupplied, undeployed, and unwanted as a matter of statute–thoroughly disregarded by Congress, wholly disconnected from your necessary constitutional rights and duties, dispensed with, and withal dispersed within an impotent, disoriented rabble.
What about your State? If Congress fails or refuses to perform its constitutional duty to “arm[ ]” “the Militia of the several States”, as it surely has with respect to what it calls the “unorganized militia”, then each State, to fulfill her own constitutional responsibility, must exercise her reserved power to arm and train her own citizens for “homeland security”. See Houston v. Moore, 18 U.S. (5 Wheaton) 1 (1820). But, other than maintaining their State Guards (which as sub-units of the National Guard are not true State “Militia”), most States have done next to nothing on this score, either. Here (as in so many other instances), States’ rights and States’ duties have decayed through States’ ignorance and States’ apathy into States’ wrongs.
To be sure, one might say that Congress and the States have by default left the vast majority of Americans in the “unorganized militia” to arm and accouter themselves by the method used most frequently in the pre-constitutional Colonial and State Militia statutes: self-help through resort to the free market. After all, “[t]o provide for * * * arming” does not necessarily require actual arming by the government itself from public arsenals. (Indeed, this is probably the least desirable way for Congress and the States to fulfill their responsibilities on that score.) Rather, Congress and the States can “provide for * * * arming” by relying on individuals to arm themselves through private commerce. But, if the free market is the means on which Congress and the States have settled for these “unorganized” Americans to fulfill their constitutional duties to be armed in “the Militia of the several States”, why do Congress and the States not require common Americans to purchase, possess, and train with their personal firearms, as did every pre-constitutional Militia statute? And why do Congress and the States not require properly armed and instructed Americans to participate in some even minimal program of “homeland security”, as every pre-constitutional Militia statute teaches that every true constitutional Militiaman should? Indeed, how could atomized Americans effectively arm and train themselves for any State or National program–which, for effectiveness, would necessarily require a high degree of cooperation among participants?
And why, instead of organizing, disciplining, and especially arming and training We the People, do politicians, legislators, judges, trial lawyers, the intelligentsia, and “the beautiful people” of New York, Hollywood, and every intellectual fever-swamp and moral cesspool in between try their damnedest to disarm common Americans at every turn? To outlaw every type of firearm and ammunition they can, but especially those that are particularly well suited for Militia purposes, such as so-called “assault weapons” not too long ago, or .50 BMG caliber rifles today? To impose every possible legal restriction on the possession and use of such firearms and ammunition as the Establishment still suffers common Americans to retain? To hamstring the private firearms industry with bureaucratic regulations and frivolous (but horrendously expensive) lawsuits? And to treat “homeland security” and “the Militia of the several States” as totally disconnected? For two fundamental reasons:
First, if “homeland security” were based to any significant degree on “the Militia of the several States”, We the People would influence the course of “homeland security” to a very significant degree.
Revitalized Militia would mobilize millions upon millions of individuals for hundreds of different programs, and bring with them the innovation and experimentation that emanate from minds not mired in the ruts of rigid bureaucratic centralism, and not incapacitated by some statist ideology from imagining solutions to the conundrums of “homeland security” that are fully compatible with human liberty. No longer would “homeland security” depend for direction on exclusive cliques of professional “security” and “intelligence” operatives, including former high-ranking KGB and Stasi agents. (In fairness to such people, though, they surely do know a great deal about terrorism. Yet their expertise lies more in imposing terrorism than in exposing and opposing it—which perhaps suggests why they are on the Department of Homeland Security’s payroll.) Rather than suffering from a national police state composed of elitists and careerists, with its tentacles slithering into every State and local police department, America would enjoy security through thoroughly local responsibility and control—because nothing could be done from above that would not have to be approved from below, what with tens of millions of organized Militiamen arrayed against orders of magnitude fewer operatives in the professional security agencies and police forces.
With “homeland security” properly focused in the States and localities, rather than centralized in Washington, D.C., America would return to the Founding Fathers’ federalism, rather than continue to expand Franklin Roosevelt’s federalization. In the most practical possible way, We the People would finally realize their own personal responsibility to maintain “a Republican Form of Government”—that, in the final analysis, “homeland security” means and demands political control by We the People, which We the People must provide directly.
Knowing their true constitutional status, We the People would recognize the source of their authority; from their authority, the source of their power; and from their power, the source of their security. That, in the final analysis, all political power–for both good and evil–comes out of the barrel of a gun was not the discovery of a Chinese Communist. See Quotations from Chairman Mao Tse-tung (1966), page 61. As the Second Amendment observed much earlier, in aid of a far worthier cause, “[a] well regulated Militia” is “necessary to the security of a free State”. The same insight from two such radically opposed sources emphasizes that guns do not oppress people; some people oppress other people–and generally accomplish that end by depriving the oppressed of the means of opposing their oppressors. Thus, in the hands of the oppressed, firearms are the indispensable instruments of freedom.
So, once “the Militia of the several States” were revitalized for the purpose of providing true “homeland security”, the genie of true Republicanism would be out of the bottle. And could the Establishment ever force it back in, after screaming so loudly and for so long about how absolutely vital “homeland security” is? At that point, the Establishment would be exposed as the paper tiger it is.
Second, “homeland security” localized in “the Militia of the several States” is the most effective way to protect Americans against the real threat to their liberties. America will never lose her freedoms because of attacks from some hodge-podge of foreign “terrorists”. The actual, acute danger lies in the organized efforts of home-grown subversives, boring from within the political process, the bureaucracies, the courts, the media, academia, the cultural sewers that spew out “entertainment”, and all the other critical points of entry into the machinery of mass psychological manipulation, then political power, then usurpation, then tyranny. And which subversives are now using a false concern for “homeland security” as their excuse to amass for themselves ever-increasing, ever-more-abusive powers in its name.
For the most pertinent example, no foreign “terrorists” enjoy either the power or the opportunity to disarm and render helpless common Americans by imposing Stalinist “gun control” on this country. But such Senators as Edward (“Chappaquiddick Ted”) Kennedy, Charles Schumer, Dianne Feinstein, John Kerry, Hillary Clinton, and the rest of their Bolshevik mob are both positioned and prepared to propose (and, with the assistance of Congressional co-thinkers, fellow travellers, and useful idiots, perhaps even to pass) legislation as draconian as any the Georgian Bandit ever imagined. And they are not alone. No, indeed.
State and local politicians, the media, the organized legal and medical professions, the intelligentsia, the modernist churches and synagogues, and all the Establishment’s other mouthpieces, front groups, camp followers, and hangers-on are constantly inveighing about how “guns cause crime”, and are therefore bad–except, of course, when wielded by the Armed Forces, the Gestapo-like agencies of the General Government, and the increasingly para-militarized State and local police, in the hands of which firearms of the most savagely lethal varieties are doubleplus good, and would never, ever, be used to further usurpation or tyranny.
Americans are being indoctrinated that their country should be covered from sea to shining sea with “gun-free zones” in which all “civilians” are stripped of the tools most effective for defending themselves—while every miniscule hamlet is to be infested with para-military squads in battle dress, staring down the public with menacing glances and body language, backed up by automatic weapons and armored vehicles (thereby demonstrating the type of “homeland security” the Establishment really believes these places are going to get).
Most ominously, by being relegated to the “unorganized militia” and thus prevented from performing their constitutional duties, average Americans are being demeaned as too unimportant, unqualified, ignorant, irresponsible, and especially politically unreliable to be “call[ed] forth” for the purposes as to which the Constitution explicitly and unqualifiedly requires their services. By being excluded from providing and participating in “homeland security”, common Americans are reduced to the subjects, passive recipients, or targets of “homeland security”. Each repetition of the term, however, must receive a different emphasis. For it is hardly mere paranoia to suspect that the “homeland security” of which Americans are to be the subjects, passive recipients, or targets will be drastically different from the “homeland security” they would provide for themselves if they had the opportunity—and, indeed, were actually required by law—to do so. Indeed, is not the proof of the pudding being cooked the ingredients the Establishment has carefully excluded from its recipe for “homeland security”?
As merely passive recipients, every American will be exposed to whatever variety of “homeland security” the Establishment—working through Congress, the President, the top brass in the Armed Forces, the intelligence bureaucracies, and sundry State and local police departments following orders from Washington, D.C.—decides to impose. And common Americans had better be prepared to swallow whatever is dished out, even if it stinks of “maximum security”. Because the kangaroo courts will surely hold resistance (perhaps even loud remonstrance) not to be “lawful”, and therefore will subject obstreperous dissenters to civil or criminal penalties.
If all this is enough to convince you that America desperately needs to revitalize “the Militia of the several States”, as the Constitution intends them to function, then steel yourself for a great deal of work, from the ground up, individual by individual, community by community, State by State. Fortunately, the first step is the easiest. Only a single question needs to be answered: Are YOU doing as much as you can to fulfill your own, personal constitutional duty in or for “the Militia of the several States”? Right now?
That is, do YOU possess a firearm and ammunition suitable for the Militia; and, if so, are YOU becoming proficient with them? Have YOU taken a firearms training course from some accredited source? Or are YOU sufficiently self-directed to be preparing yourself? And are YOU studying the problems of “homeland security”, and thinking about how common Americans can—and must—solve them? If not, YOU need to begin by obtaining a firearm and learning how to use it (LAWFULLY, of course), as well as by learning as much as you can about “homeland security”—not only what some public officials say that it is, but more importantly what the Constitution teaches that it ought to be, and how to get that job done through public education and legislation in your State. Then convince at least two other people to do the same, and ask each of them to convince two more, and so on. Most importantly, make sure that everyone knows why.
- Part 3: Are You Doing Your Constitutional Duty For ‘Homeland Security’?
PART ONE of this commentary explained why “the Militia of the several States” are the fundamental constitutional components of “homeland security”. PART TWO discussed who actually comprises “the Militia of the several States”; how Congress and the States—contrary to their constitutional duties—are almost completely neglecting the Militia; and why average Americans need to revitalize the Militia as soon as possible. This PART explores whether revitalization of the Militia can actually come about if Americans simply arm and train themselves as individuals and in lawful private organizations, or if a more structured approach is necessary.
At first glance, purely private action is seductively appealing, for at least three reasons. First, such self-reliance circumvents the legislative, judicial, and even political processes that very great numbers of common Americans have concluded—on the basis of plentiful evidence–are too slow, too complex, too corrupt, and too thoroughly coopted and compromised by the Establishment to be anything but counterproductive in any attempt to restore constitutional government.
Second, private action aimed at revitalizing the Militia can boast a potential constituency consisting of the tens of millions of people within “the unorganized militia”, which Congress defines as every able-bodied male “at least 17 * * * and under 45 years of age” who is not a member of the National Guard or the Naval Militia–and which by default includes as well every male from 16 to 17 and over 45 years of age who is constitutionally a member of “the Militia of the several States”, but whom Congress ignores entirely. See Title 10, United States Code, Section 311(a) and 311(b)(2). Millions of these people, too, are already members of private organizations that support the Second Amendment and demand a system of “homeland security” that will not sacrifice Americans’ individual liberties.
Third, private action aimed at revitalizing the Militia can, in most States, still draw upon an efficient and well-supplied free market for firearms, ammunition, accoutrements, and personal training.
First glances, however, especially if seductive, are often dangerously deceptive. For each of the foregoing considerations is subject to the Damoclean caveat: “so long as Congress or the State Legislatures do not pass bad ‘gun-control’ statutes, or courts do not badly interpret existing ones”. Thus, there is no escaping the necessity for We the People to engage in political and legal activism at least to prevent legislators and judges from destroying the possibility of private action on behalf of the Militia.
In addition, “the Militia of the several States” will neither be properly “organiz[ed], arm[ed], and disciplin[ed]”, nor be justifiably “call[ed] forth” for “homeland security” (or any other purpose, for that matter), unless they are revitalized strictly along constitutional lines. See Article I, Section 8, Clauses 15 and 16. For only along constitutional lines can “the Militia of the several States” exercise legitimate authority. To prate about the need for “constitutional government”, while proposing questionably legal (or, worse yet, arguably illegal) solutions to present political problems, is self-contradictory. Those who do so are no better than the people they oppose.
What, then, are the constitutional fundamentals to which reformers must adhere? Once again, the history of “the Militia of the several States” provides the answer:
In every Colony and independent State prior to ratification of the Constitution, the Militia were strictly governmental institutions. They were organized and maintained pursuant to statutes that defined their legal powers, duties, rights, and immunities, and that directed all their activities towards the eminently public purposes of the “homeland security” of those days.
For the most illustrious example, the Militiamen who showed the Redcoats the mettle of Massachusetts at Lexington and Concord in 1775 were no self-recruited private army, let alone a lawless armed mob, but instead components of the regular Massachusetts Militia then in existence pursuant to statute. They fought against the uniformed minions of Royal and Parliamentary usurpation and tyranny as part of their governmental duties, for the purpose of vindicating true governmental authority, not of overthrowing the existing government, of establishing a new government, or (least of all) of seizing power as an anarchy in arms answerable only to themselves.
Importantly, at that time the Colonists were relying on military force, not in order to dissolve their political ties to the mother country, but only to restore their rights as British subjects. As Congress informed the world in its Declaration of the Causes and Necessity of Taking Up Arms (6 July 1775),
[w]e have not raised armies with ambitious designs of separating from Great-Britain, and establishing independent states. We fight not for glory or for conquest. We exhibit to mankind the remarkable spectacle of a people attacked by unprovoked enemies, without any imputation or even suspicion of offence.
Yet, Congress also explained,
[w]e gratefully acknowledge, as signal instances of the Divine favour towards us, that his Providence would not permit us to be called into this severe controversy, until we were grown up to our present strength, had been previously exercised in warlike operation, and possessed of the means of defending ourselves.
Nothing less than a century of development, discipline, and deployment of the Militia throughout the Colonies enabled Congress to say this. Indeed, without their Militia, grown up and matured out of what the Second Amendment later identified as “the right of the people to keep and bear Arms”, the Colonies would have been defenseless, because they had no independent standing armies of their own with which to repel the first onslaughts of British military aggression.
When the States declared their independence from Britain in 1776, their dependence on their Militia was no less evident, both in principle and in practice. The Declaration of Independence correctly recited the political principle that,
when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce the[ people] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
To be practically meaningful, however, a right must know a remedy for its vindication. “A right without a remedy is as if it were not. For every beneficial purpose it may be said not to exist.” United States ex rel. Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 554 (1867). And a duty must summon the means for its fulfillment. For the States, that remedy was armed resistance, that means their Militia. The Declaration was “[t]he first official action of this nation”. Gulf, Colorado & Santa Fe Railway Co. v. Ellis, 165 U.S. 150, 159 (1897). But its efficacy turned upon a victorious passage of arms.
[I]f the[ newly independent States] had failed in securing their independence, and the authority of the King had been re-established in this country, no one would contend that their acts against him, or his loyal subjects, could have been upheld as resting upon any legal foundation [under the law of Great Britain]”. (Williams v. Bruffy, 96 U.S. 176, 186 (1878).
Yet, even in their armed resistance to British oppression, the Militia were acting according to law. Not British law, as the King and Parliament had corrupted it, but a higher and better law. Americans sought “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”, on the basis of “truths” they held
to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
To these “Laws” and these “truths” Americans appealed; and to enforce these “Laws” and prove these “truths” they deployed their Militia to secure “the Right of the People * * * to institute new Government”.
Not surprisingly, then, when the States united under the Articles of Confederation in 1781, their Militia remained central to the plan of government:
[N]or shall any body of forces be kept up by any state, in time of peace, except such number * * * requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered * * * . (Article VI, Paragraph 4).
And when We the People brought their States under the Constitution in 1788 they recognized the existence of “the Militia of the several States”, and permanently empowered them to perform vital National functions. Article I, Section 8, Clauses 15 and 16; Article II, Section 2, Clause 1.
“Permanently” is the key term here. The Founding Fathers recognized “the Laws of Nature and of Nature’s God” and certain “self-evident” “truths” to be of permanent validity and binding authority. They made these “Laws” and these “truths” the foundations, in principle, of American government. But they succeeded in practice only because, in their darkest hours, they were able by means of their Militia actually to enforce “their right” and to effectuate “their duty, to throw off [oppressive] Government, and to provide new Guards for their future security”.
All human action is historically contingent. So, there having proven to be an historically unique or indispensable remedy to enforce a right, an historically unique or indispensable means to effectuate a duty, that remedy and means must be taken as part of the right and the duty, always inseparable from them. And this the Second Amendment specifically attests: “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.” Because the Militia are “necessary to the security of a free State”, they are necessary even to its very existence, because (as History teaches), without security the existence of any State is precarious and short-lived. And inasmuch as the Militia are necessary to a free State’s existence, they must be permanent means for enforcing “the Laws of Nature and of Nature’s God” and vindicating those “self-evident” “truths” on which that existence is predicated and which it serves.
In sum, “the Militia of the several States” are institutions which existed as a matter of fact and law for more than a century before the War of Independence, and which the Constitution recognized—as well it had to—as necessarily permanent means to secure its entire system of government. The Militia did not have to be created from whole cloth in 1775, 1776, 1781, or 1788, and need not be created anew today. Revitalized, perhaps, but not recreated.
Therefore, the first step in revitalizing “the Militia of the several States” is to turn to “the several States” whose Militia they are. Patriots in each State should petition their State’s Legislature to organize the “unorganized militia”, with which Congress is doing nothing, in order to provide “homeland security” for the State. How in good faith could any State’s legislators refuse to act, when the “the supreme Law of the Land” itself tells them in no uncertain terms that the Militia are “necessary to the security of a free State”?! Article VI, Clause 2; Amendment II.
Nowhere could such action be more timely and required today than in Arizona, New Mexico, Texas, and California. These States are actually being invaded by illegal aliens. And invaded not just by Mexicans (as well as other foreigners) as individuals, but also by Mexico and who knows what other countries and international organizations in collusion with her as foreign powers. Indeed, the specific role of the Mexican government in fostering and assisting this invasion–for what could be called Lebensraum and revanche–is openly, brazenly proclaimed by her own Presidente. This is war—waged in fact, if not declared in law.
Article I, Section 10, Clause 3 of the Constitution provides that
[n]o State shall, without the Consent of Congress, keep Troops * * * in time of Peace, * * * or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Under their present circumstances of “actual[ ] inva[sion]” and “such imminent Danger as will not admit of delay”, the front-line States could arguably even raise “Troops” (that is, standing armies) and deploy them, without “the Consent of Congress”, at least until Congress or the President took effective action to repel the invasion. In any event, and especially with Congress and the President inactive, the front-line States need seek no consent from Congress (or anyone else) to mobilize their own Militia to protect their own borders and people.
To the contrary: Congress labors under a constitutional duty to “call[ ] forth the Militia to execute the Laws of the Union * * * and repel Invasions”, because “[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion”. Article I, Section 8, Clause 15, and Article IV, Section 4. When necessary, this duty requires Congress to “provide for calling forth the Militia” from as many other States as necessary to succor those in the front line.
That would be a relatively easy task in these circumstances. Can anyone doubt that the borders of the front-line States could be absolutely secured if Congress “call[ed] forth” an average of just 1,000 Militiamen from each of the fifty States, all 50,000 serving for three months at a time in rotation through the rosters of their States’ Militia (as was the practice in pre-constitutional times)? This would require an average of only 4,000 Militiamen from each State per year, hardly an onerous burden in comparison to the huge costs, both economic and political, of illegal immigration.
By bringing the issue of revitalizing “the Militia of the several States” to State Legislatures, patriots could also provide their fellow Americans with a much-needed education. Millions upon millions of Americans are members of “the Militia of the several States”. But how many are aware of that fact, or of the vital role the Constitution expects the Militia, that is, common Americans–to play in “homeland security”? Heated legislative battles would open eyes and minds on these matters.
If State legislators refuse to enact such a statute–in plain dereliction of their duty–then the matter must be made one of the two controlling issues at the next general election. These two issues are (i) monetary reform (about which I have written elsewhere) and (ii) revitalization of the Militia. (A third issue almost as important as these involves the meaning of the Constitution, and who is to determine it. This is the question of “judicial supremacy”, which I shall discuss in later commentaries.)
To the complaint that Americans find themselves confronted by so many political issues that these two alone cannot be the deciding ones, the answer is that the two most important powers We the People exercise are the Power of the Purse and the Power of the Sword. Without monetary reform, the whole country will go under economically in the not-so-distant future, which calamity will provide the Establishment with a rationalization for imposing a full-fledged police state. And without revitalization of the Militia, the whole country will be swamped in a flood of illegal immigrants, radically destabilized, and then ground under the heel of the full-fledged police state the Establishment sets up in response to the social and political chaos its own policies have caused (even if the monetary system does not collapse first). So, unless Americans address these two issues—and especially the revitalization of “the Militia of the several States”—soon and successfully, they will no longer have any hope of controlling their own country, and therefore will not have to concern themselves with any issues at all, because they will not be allowed to do so. On the other hand, with the Power of the Purse and the Power of the Sword firmly in We the People’s hands, all other governmental powers—as well as all disabilities (that is, limitations on governmental powers)—fall to We the People’s control as well.
The millions upon millions of people in “the unorganized militia” can become a politically decisive force for two reasons: sheer numbers and strong personal interest. Experience throughout the United States with new laws allowing common Americans to carry concealed firearms provides encouraging evidence to support this prediction. In State after State, these laws have been enacted not by the Establishment—and not through the efforts of social and cultural elitists in the media, the intelligentsia, academia, or the smart set of “beautiful people”—but by We the People, who have forced State legislators to empower common Americans to protect themselves from criminals. As a result, Americans enjoy more personal security from violent crime today than ever before in recent memory, because (as common sense teaches and scientific studies confirm) putting more guns in the hands of more responsible citizens results in more protection and social peace.
Revitalization of “the Militia of the several States” is simply the issue of personal security writ large. Also, revitalization of the Militia may be easier to accomplish sooner and on a wider scale than monetary reform, because most people understand “homeland security” (and fear its opposite) better than they do the Federal Reserve System and the dangers it poses. Already, millions of Americans who would find it difficult to differentiate the Federal Reserve from Federal Express are up in arms against the sort of federalized “homeland security” Washington, D.C., is attempting to ram down their throats. This is probably as good a beginning for a massive popular political movement in every State as American history has ever provided.
© 2005 Edwin Vieira, Jr. – All Rights Reserved. This article originally appeared May 23, 2005 on newswithviews.com
- Dr. Edwin Vieira, Jr., P.h.D., J.D. —Biography, Books and Lectures.
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.
Dr. Vieira has written numerous monographs and articles in scholarly journals, and lectured throughout the county. Dr. Vieira is the author of the following books:
- Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (II Volumes)
The most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. Available on Amazon.
- How to Dethrone the Imperial Judiciary
In this brilliant, accessible, and documented work, Dr. Edwin Vieira offers us the best researched and clearest over view to date of the power of the people to control a runaway judiciary. Available on Amazon.
- Constitutional “Homeland Security”, Volume One, The Nation in Arms
This book explains why “the Militia of the several States” are the only establishments the Constitution explicitly empowers to provide the crucial elements of “homeland security”. And it describes the practical steps Americans should take to revitalize the constitutional Militia in each of the States. Available on Amazon.
- Constitutional “Homeland Security” Volume Two, The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States”
A comprehensive CD-ROM study—2,304 pages in length, with 6,544 footnotes and endnotes—of the constitutional and statutory history of America’s Militia, which gives special emphasis to the unique and indispensable rôle of the Militia as the institutions through which WE THE PEOPLE themselves ultimately provide, or withhold, the consent of the governed upon which this country’s form of government depends for its legitimacy. The Sword and Sovereignty derives the basic legal and practical principles of the Militia from a detailed study of the pre-constitutional Militia statutes of Rhode Island and Virginia selected, for reasons the book makes clear, as exemplars of what happened throughout America in that era. It explains how these principles are embodied in the Declaration of Independence and the Constitution, and how they should be applied in the operation of Americas true federal system of government—indeed, why it is Congress’s and every State’s duty to see to the organization of, and every American’s personal duty to participate in, the Militia, more imperatively now than ever before. It exposes the dangerous fallacy in the contemporary “individual-right” misinterpretation of the Second Amendment, and explains how the Supreme Court’s Heller decision reduced American’s right * * * to keep and bear Arms to a level far below what their forebears enjoyed when the Constitution and Bill of Rights were ratified. And it examines ways in which revitalized Militia of the several States could, should, and if they were properly revitalized would deal with many of the most pressing contemporary problems this country faces—such as the correction of rogue public officials, the supervision of the military-industrial complex, the conduct of honest elections, the provision of an alternative currency, etc. Available on Amazon.
- Thirteen Words
Dr. Edwin Vieira, Jr. examines the phrase in the Constitution of the United States that is most overlooked today, even though it is also the most important constitutional phrase of all for Americans to understand and apply if they are to preserve their country as an independent, free, and prosperous republic, “A well regulated Militia being necessary to the security of a free State”. Available on Amazon.
- Three Rights
Dr. Edwin Vieira, Jr. elucidates the three indispensable rights of popular sovereignty, popular self-government, and popular resistance to usurpation and tyranny that lie at the heart of the Declaration of Independence, the original Constitution of the United States, and the Bill of Rights. Three Rights proves that these documents are not somehow separate and independent, but instead are integral components of a single coherent plan of government the foundational precepts of which call upon We the People to retain in their own hands, and to wield directly when circumstances demand it, the ultimate power of sovereignty in the defense of “a free State”. Available on Amazon.
- By Tyranny Out of Necessity: The Bastardy of Martial Law
All to many Americans today accept the notion they, should a “national emergency’ occur, only “martial law” could maintain “law and order” and secure the continuation of vital public services, and therefore “martial law” is not only desirable but inevitable in an era so fraught with “terrorism” and other dangers against which ordinary citizens are hopelessly unprepared to defend themselves. Available on Amazon.
- The Purse and the Sword: Imminent Dangers of U.S. Economic and Homeland Security Policies
Lecture presentation featuring Dr. Edwin Vieira., Jr. speaking. A four disc set, 8 hours in length. Dr. Edwin Vieira, Jr. uses his “Visual Constitution” to address two of the most pressing issues in our nation:
• The Purse: America’s Economic Crisis…what can and should the government do? Few Americans understand our economic system and its complexities. Hear Dr. Vieira explain, in easy to understand language, the lawful Constitutional powers the government possesses for dealing with money and the economy. Hear the common sense application of those powers, the abuses and unlawful expansions of those powers, as well as the only logical way through which we can return sanity to our economic policies.
• The Sword: “Homeland Security.”..how the Militia provides our only true security. Today an unending series of “crisis” are being used to rationalize the continual loss of liberty and expansion of government in size and scope. After years of research, Dr. Vieira presents the lawful and Constitutional remedies for threats to our Homeland Security. Hear how “the Militia of the several States” are the ultimate security against all threats—both foreign and domestic. Learn what you can do to help with “homeland security” in your community and State! Available on Amazon.
- Cra$hmaker: A Federal Affair: A Novel
A not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. Available on Amazon.
- Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (II Volumes)