Misconstrued Role of Congress
Acts of Congress Not Necessarily Binding
The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1259.
Misconstrued Role of Congress: Acts of Congress Not Necessarily Binding
THE PEOPLE are not necessarily legally bound by every act that individuals who may happen to be Members of Congress may perpetrate. Whether an action taken by such individuals is entitled to be denoted an action “of Congress” depends, not upon its mere occurrence in the Capitol, but upon its strict congruence with the Constitution, because “Congress” enjoys no authority—indeed, has no legal existence—outside of, let alone contrary to, the Constitution. (footnote 1) So, that Members of Congress may have purported to enact some statute, although necessary for that statute’s bare existence, is not sufficient for its validity. “Illegality cannot attain legitimacy through practice.” (footnote 2) Moreover, if (as no one doubts) “a bold and daring usurpation might be resisted, after * * * [long and complete] acquiescence”, (footnote 3) then surely a mindless “[g]eneral acquiescence cannot justify departure from the law”, (footnote 4) no matter how long it may have continued. “[N]either the antiquity of a practice nor * * * steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack”. (footnote 5) “[N]o one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.” (footnote 6) Rather, “when the meaning and scope of a constitutional provision are clear, it cannot be overthrown by legislative action, although several times repeated and never before challenged”. (footnote 7) Constitutional questions “must be resolved not by past uncertainties, assumptions or arguments, but by the application of the controlling principles of constitutional interpretation”. (footnote 8)
- A fully organized Militia is required perforce of the Declaration of Independence.
The Declaration of Independence categorically asserts 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”. Plainly enough, confronted by usurpers and tyrants aiming at “absolute Despotism”, “the good People” (as the Declaration identifies them) can secure their own liberation and protection only through the threat or at length the actual application of overwhelming force—by organizing, arming, disciplining, training, and deploying themselves in some variety of Militia sufficient to the purpose. Just as plainly, though, “the good People” need not wait until “absolute Despotism” has nearly fastened its strangulating grip upon and sunk its fangs into their throats before they mount a defense against it. If “it is their right, it is their duty, to throw off such [a bad] Government” when the malignancy fully appears—accepting all of the evil consequences that will inevitably arise out of the struggle—then it must be even more imperatively their right and their duty to support and sustain a good government in the first place and thereby avoid those evils altogether. “[T]he good People” need not, dare not, remain quiescent in the face of crescent usurpation and tyranny until, perhaps too late to be effective, desperation finally prompts action. Rather, at all times, even in those of apparent tranquillity, they must prepare themselves to detect, to deter, to resist when deterrence fails, and ultimately to defeat every “design to reduce them under absolute Despotism”. Across such a wide range of circumstances—from calm, through crisis, even to calamity—what institution can invariably best serve “the good People[’s]” needs? (footnote 1)
1.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 917.
- A fully organized Militia is required perforce of the Constitution.
No “well regulated Militia”—whether from the absence of such an establishment altogether or from its debilitating deficiencies—is even more plainly impossible under the Constitution than under the Declaration of Independence.
• Second, any other than “[a] well regulated Militia” in each of the several States is a constitutional impossibility, because the Second Amendment declares that such a Militia is “necessary to the security of a free State” everywhere without exception.
• Third, by historical definition, “[a] well regulated Militia” is a Militia fully “regulated” at all times according to pre-constitutional principles. For just as never during that period did a single one of the Colonies (other than Pennsylvania) and then the independent States not maintain her own Militia at all, neither did a single one of the Colonies or States (including, at last, Pennsylvania) not “regulate[ ]” her Militia “well”—in terms of fully organizing, arming, disciplining, and training it for the “homeland-security” tasks then at hand—let alone even admit the possibility of jury rigging only an oxymoronic “well [but un]regulated Militia”.
• Fourth, the Constitution licenses neither the States nor Congress to set up truncated “select militia”, leaving “the body of the people” (footnote 1) “unorganized”. The States lack any such discretion, because the Militia are “the Militia of the several States” as those Militia existed before and at the time the Constitution was ratified. And during that period of almost one hundred fifty years, no Militia of any Colony or independent State had been other than fully organized. Congress, too, lacks any such discretion, because its relevant power is solely “[t]o provide for organizing * * * the Militia”, not “[Part of] the Militia” only. (footnote 2) And “the Militia” means the Militia just as they existed in pre-constitutional times—in which every eligible individual was subject to some form of organization. If Congress were at liberty “[t]o provide for organizing” only “[Part of] the Militia”—that is, effectively to redefine “the Militia” ad libitum without reference to American legal history—rogue Members of Congress:
(i) could reduce the Militia to impotence by enlisting only a tiny fraction of eligible individuals, which would not serve “the security of a free State”, or
(ii) could create a Praetorian Guard or Schutzstaffel out of those legislators’ political cronies, partisans, and hangers-on, which would subvert that “security”. (footnote 3)
1.) Virginia Declaration of Rights (1776) art. 13.
2.) U.S. Const. art. I, § 8, cl. 16 (emphasis supplied).
3.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 919-920.
- The Militia are necessary to ‘guarantee to every State in this Union a Republican Form of Government’ (Article VI, Clause 2).
The original Constitution emphatically required that “the United States shall guarantee to every State in this Union a Republican Form of Government”. (footnote 1) No exception to this duty existed then or exists now. Every State government in America between 1776 and 1788, though, was already “Republican” in form or would have had to be modified upon the noncompliant State’s accession to the Constitution. And every Colony but one in America prior to 1776, and every independent State thereafter, established by statute and always maintained a Militia of a certain type as an integral part of her governmental structure. Therefore, a Militia of that type constituted an essential and integral component of “a Republican Form of Government”, because such an unbroken legislative cavalcade provides “unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution”. (footnote 2)That being so, as part of the duty imposed upon the United States, Congress was required always to “guarantee to every State” a Militia sufficiently “organiz[ed], arm[ed], and disciplin[ed]” to meet these historical standards. Thus, from this perspective as well, the powers of Congress with respect to the Militia under even the original Constitution translated into absolute duties.
1.) U.S. Const. art. VI, cl. 2.
2.) See Minor v. Happersett, 88 U.S. (21 Wallace) 162, 176 (1875) (dictum).
- The Second Amendment recognized the position of the Militia as absolute by declaring them ‘necessary to the security of a free State’.
Not surprisingly, the Second Amendment treated the powers of Congress as duties, those duties as absolute, and their full execution as always “necessary and proper” (footnote 1), when it declared, categorically and without any exception, that “[a] well regulated Militia” is “necessary to the security of a free State”. (footnote 2) Thus, even if under the original Constitution Congress might have enjoyed some leeway to decide for itself that “provid[ing] for organizing, arming, and disciplining, the Militia” was not “necessary and proper” at some time or to some degree, ratification of the Second Amendment denied it that latitude by declaring with finality for every circumstance to which the original Constitution might have applied and would thereafter apply that “[a] well regulated Militia”—that is, one properly “organiz[ed], arm[ed], and disciplin[ed]”—is always “necessary”, and for the highest purpose of all, “the security of a free State”. Indeed, the phraseology of the Amendment’s nominative absolute clause in the present tense—“[a] well regulated Militia, being necessary”, right now, at every moment—precludes any other interpretation.
1.) U.S. Const. art. I, § 8, cl. 18.
2.) Emphasis supplied.
- A ‘right of the people peaceably to assemble, and to petition the Government for a redress of grievances’ is insufficient to provide ‘the security of a free State’ as the Second Amendment warns.
A “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (footnote 1) will not necessarily prove efficacious, because self-assured usurpers and tyrants with no fear of “the people” will contemptuously disregard the petitioners—whose futile endeavors will produce only new “grievances”, new petitions for the “redress” of which will remain unanswered in their turn. The next elections may prove equally futile as means of reform, if the usurpers and tyrants have corrupted the process by (say) coöpting the major political parties, subverting the big media, and arranging for the use of rigged voting machines. In any event, elections occur only periodically—and the times between elections may prove sufficient for the malefactors’ purposes. (footnote 2) Inasmuch as “the good People” cannot expect usurpers and tyrants to prosecute themselves even when their misdeeds are exposed and made the subjects of public denunciations, and inasmuch as “the good People” must be able to investigate and police such malefactors between elections, therefore “the good People” require instruments with the organization, equipment, training, and legal authority to serve that purpose under their own control at all times. Only the Militia, fully prepared to do whatever is necessary, when it is necessary, fill the bill. (footnote 3)
1.) E.g., U.S. Const. amend. I.
2.) For example, a rogue President has four uninterrupted years of incumbency. Even if after two years in office his partisans lose control of Congress, he may nonetheless be able to accomplish his goals, without new legislation, through the use of purported “executive orders”, “proclamations”, “nationals security decision directives”, “signing statements”, and like dictatorial devices. And unless the new Congress overwhelmingly turns against him, he may continue his depredations without fear of impeachment, conviction, and removal from office for “high Crimes and Misdemeanors”. See U.S. Const. art. I, § 2, cl. 5 and § 3, cls. 6 and 7; and art. II, § 4.
3.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 918.
- The responsibility of Congress with respect to ‘the Militia of the several States’.
The question remains, “If the Militia are to be ‘well regulated’, who has the authority and the responsibility to ‘regulate’ them?” That is, who is to ensure that the Militia are fully organized, armed, disciplined, and trained at all times, according to pre-constitutional principles?
The initial answer is “Congress”, because the original Constitution explicitly delegated to Congress the powers “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions” and “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States”, whenever it might be “necessary and proper” to do so. (footnote 1) Even under the original Constitution, these were not simply powers, but also and especially duties, too. For, self-evidently, the very terminology “[t]o provide for organizing, arming, and disciplining, the Militia” excludes not providing at all for those states of readiness, or providing for their very opposites—because “[a]ffirmative words are * * * , in their operation, negative of other objects than those affirmed”. (footnote 2) And unimaginable are the circumstances in which:
(i) it would even arguably not be “necessary and proper” “to execute the Laws of the Union, suppress Insurrections, and repel Invasions”—and therefore
(ii) it would not be “necessary and proper” to “call[ ] forth” the only establishments that the Constitution explicitly authorizes to take such actions—yet
(iii) it would be allowable for those establishments to be less than sufficiently “organiz[ed], arm[ed], and disciplin[ed]” when they were “call[ed] forth” for such purposes.
1.) U.S. Const. art. I, § 8, cls. 15, 16, and 18.
2.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
??) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 920.
- The responsibility of the States with respect to ‘the Militia of the several States’.
Although absolute, Congress’s power and duty “[t]o provide for organizing, arming, and disciplining, the Militia” are neither limitless nor exclusive. True, they must be construed to enable Congress fully to prepare the Militia to perform the three vital constitutional tasks for which the latter may be “call[ed] forth” to “be employed in the Service of the United States”. But, in the nature of things, they are not suited to address the myriad other tasks of “homeland security” that would surely need to be performed in different States at various times. Rather, the most expansive power and duty for statutory regulation of the Militia must rest with the individual States, because:
(i) The Militia are “the Militia of the several States”, not “the Militia of the United States”.
(ii) True “homeland security”—“the security of a free State”—must be provided within the “homeland”, which is within the States themselves and amongst their own people at the Local level. And
(iii) as a practical matter, neither Congress nor some “national-security” bureaucracy can possibly provide uniformly and in a timely fashion for—or even be apprised of, let alone itself foresee—all of the purposes of “homeland security” that the Militia might serve within individual States (beyond the responsibilities “to execute the Laws of the Union, suppress Insurrections and repel Invasions”), each of which other purposes would require the rapid mobilization of diverse resources in the service of various and variable needs. (footnote 1)
Therefore, each of the several States must exercise authority for statutorily organizing her own Militia, not simply concurrent with that of Congress with respect to the three explicit constitutional purposes for which the Militia may be “call[ed] forth”, but in all other respects exclusive, with broad discretion to proceed in her own way, so long as what she prescribes for “homeland security” within her own territory does not frustrate, operate at cross-purposes towards, or otherwise impermissibly interfere with what Congress has mandated for “the Service of the United States”. (footnote 2)
1.) “The slave patrols”—which existed in Virginia but not in Rhode Island—exemplify the widely different purposes the Militia served in different Colonies and States during pre-constitutional times. See: Militia: Entrusted with Police Powers.
2.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 922-923.
- The responsibility of WE THE PEOPLE with respect to ‘the Militia of the several States’
The Second and Tenth Amendments’ focus on “the people” emphasizes that not just Congress and the States labor under an affirmative obligation in this regard. Indeed, the fundamental responsibility for seeing to the proper “regulation” of the Militia in each State rests squarely upon WE THE PEOPLE:
(i) Because “[a] well regulated Militia” is “necessary to the security of a free State”, the responsibility for proper “regulation” of the Militia cannot be delegated to possibly incompetent or rogue public officials in a government the survival and even the legitimacy of which depends upon constitutionally sufficient “regulation” of the Militia in the first place.
(ii) THE PEOPLE themselves comprise the Militia, and therefore have the greatest insight into, interest in, and incentive to insure the Militia’s proper functioning.
(iii) THE PEOPLE, not the General Government or the States, are America’s true sovereigns; and in practical politics “the buck stops” on the desk of the highest authority. (footnote 1)
That the ultimate driving and controlling force behind “[a] well regulated Militia” in each State consists of WE THE PEOPLE themselves is particularly fitting in a federal system that is designed to operate from “the bottom up” not from “the top down”. In the normal course of human events, THE PEOPLE may be content merely to vote for representatives in State legislatures and in Congress who then are expected to enact appropriate legislation. But when the electoral and legislative processes become clogged with factionalism and the manipulations, corruptions, and frauds fostered by calcified political parties and conniving special-interest groups, must THE PEOPLE meekly suffer “the security of a free State” to be jeopardized? Hardly. If Members of Congress will not act when they should with respect to “regulating” the Militia, the States’ legislators must; and if both Congressmen and the States’ lawmakers will not act when they should, THE PEOPLE must. No one else can. And they will be justified in taking whatever action may be necessary to achieve that end. Because salus populi suprema lex, (footnote 2) “[h]e that has virtue and power to save a people, can never want a right of doing it”. (footnote 3)
1.) See A Dictionary of Americanisms on Historical Principles, Mitford M. Mathews, Editor (Chicago, Illinois: University of Chicago Press, 1951), at 198-199.
2.) “The health [or welfare] of the people is the supreme law.”
3.) A. Sidney, Discourses Concerning Government, ante note 54, at 227 (emphasis supplied).
- No ‘unorganized’, ‘unarmed’, or ‘undisciplined’ ‘Militia if the several States’ constitutionally possible.
If minor details of “regulation” may be altered in order to obtain “[a] well regulated Militia” in each State under varying conditions, nonetheless Congress or the legislatures of the several States must exercise such discretion as they enjoy in this regard with scrupulous concern for fixed constitutional principles. Presumably, being “bound by [their] Oath[s] or Affirmation[s], to support th[e] Constitution”, (footnote 1) Members of Congress and State legislators will both know the law and discharge their duties to it faithfully under changing circumstances. (footnote 2) Nothing could be more important, because the least departure from the fundamental principles of “regulation” can never be allowed without transmogrifying the “regulated” entity into something other than a true constitutional “Militia”, with whatever deleterious consequences will surely follow from upsetting the “checks and balances” that true Militia provide within the Constitution’s federal system.
1.) U.S. Const. art. VI, cl. 3.
2.) Compare Cannon v. University of Chicago, 441 U.S. 677, 696-697 (1979), with Myers v. United States, 272 U.S. 52, 183 (1926) (McReynolds, J., dissenting).
An “unorganized”, “unarmed”, “undisciplined”, or “untrained” Militia is little better than no Militia at all—and perhaps worse, because it deceives THE PEOPLE into accepting the shadow for the substance. But no Militia at all within any of the several States, whether the product of actual nonexistence or simply insufficient preparation, is a legally impossible state of affairs under both the Declaration of Independence and the Constitution. (footnote 9)
The notion that Congress may prohibit States from forming new Independent Companies has never come before the Supreme Court—and if it had, the Court’s decision would hardly be conclusive, inasmuch as the Court has admitted error and reversed itself numerous times on constitutional questions. (footnote 10) Also see Misconstrued Role of the Supreme Court.
Militia Structures are State Institutions largely outside the jurisdiction of Congress and the General Government. No State need seek no consent from Congress to provide themselves with constitutional “homeland security” by revitalizing her constitutional Militia. “[T]he security of a free State” would also include “economic security”—States reinstituting constitutional “Money”, silver and gold based on the constitutional “Unit” or monetary standard, the “dollar”. See Revitalizing the Militia Can Promote Monetary Reform
1.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1259.
2.) Inland Waterways Corporation v. Young, 309 U.S. 517, 524 (1940).
3.) McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 401 (1819).
4.) Smiley v. Holm, 285 U.S. 355, 369 (1932).
5.) Williams v. Illinois, 399 U.S. 235, 239 (1970), quoted in Pacific Mutual Life Insurance Company v. Haslip, 499 U.S. 1, 18 (1991).
6.) Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970).
7.) Fairbank v. United States, 181 U.S. 283, 311 (1901).
8.) Wright v. United States, 302 U.S. 583, 597-598 (1938).
9.) 1.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 917.
10.) See, e.g., Payne v. Tennessee, 501 U.S. 808, 828-830 & note 1 (1991). Indeed, various Justices have often candidly admitted their duty to correct the Court’s misreadings of the Constitution. See, e.g., Mitchell v. W.T. Grant Company, 416 U.S. 600, 627-628 (1974) (Powell, J., concurring) (“especially with respect to matters of constitutional interpretation * * * if the precedent or its rationale is of doubtful validity, then it should not stand”); Coleman v. Alabama, 399 U.S. 1, 22-23 (1970) (Burger, C.J., dissenting) (denying “that what the Court said lately controls over the Constitution”); United Gas Improvement Company v. Continental Oil Company, 381 U.S. 392, 406 (1965) (Douglas, J., dissenting) (“issues of [constitutional] magnitude are always open for re-examination”); Gideon v. Wainwright, 372 U.S. 335, 346 (1963) (opinion of Douglas, J.) (“all constitutional questions are always open”); Pollock v. Farmers’ Loan & Trust Company, 158 U.S. 601, 663 (1895) (Harlan, J., dissenting) (“in a large sense, constitutional questions may not be considered as finally settled, until settled rightly”). This is why the Supreme Court is an especially weak reed on which to lean when inquiring into the true meaning of the Constitution. Yes, the Court can set aside an incorrect opinion for a correct one. But until that happens, most public officials will treat the incorrect opinion as a valid “precedent” under the doctrine of stare decisis. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-869 (1992) (opinion of O’Connor, Kennedy, and Souter, JJ.). Worse yet, being always subject to the fallibility of human reasoning, the Justices can arrive at an incorrect opinion in the first place, and even set aside a correct opinion for an incorrect one, and never hear another case that raises the issue on which they erred. Thus, a decision of the Supreme Court, by itself, can never answer a constitutional question definitively. Rather, each decision of the Court on such a question always poses the further conundrums of (i) whether the Justices have actually answered the original question sub judice, and if so (ii) whether what they have opined about that question is correct or incorrect. Sometimes, decisions of the Court are obviously correct, or can easily be proven to be so. In that eventuality, they can be cited as prima facie evidence on the points at issue. But more than that cannot be attributed to them.