- First, the Constitution allows for no ‘militia of the United States’ at all.
First, the Constitution allows for no “militia of the United States” at all. In contradistinction to the “Armies that Congress may “raise and support”, (footnote 1) and the “Navy” that it may “provide and maintain”, (footnote 2) and which the Constitution recognizes as “the Army and Navy of the United States” (footnote 3) Congress enjoys no power whatsoever to create such a National “militia”. Rather, the only true constitutional Militia are “the Militia of the several States“. These “may be employed in the Service of the United States” (footnote 4) and may be “called into the actual service of the United States” (footnote 5)—but even then they remain “the Militia of the several States”. The constitutional duties they may perform for the General Government do not change their constitutional identities as State establishments.
1.) U.S. Const. art. I § 8, cl. 12.
2.) U.S. Const. art. I § 8, cl. 13.
3.) U.S. Const. art. II § 2, cl. 1 (emphasis supplied).
4.) U.S. Const. art. II § 8, cl. 16 (emphasis supplied).
5.) U.S. Const. art. II § 2, cl. 1 (emphasis supplied)
- Second, as evidenced by some 150 years of pre-constitutional American history, ‘the Militia of the several States’ should be composed of at least all males from16 to 60 years of age.
Second, as evidenced by some 150 years of pre-constitutional American history, “the Militia of the several States” should be composed of at least all males from 16 to 60 years of age, not some less-inclusive set—and now with the emancipation of women, (footnote 1) of some significant portion of their population in appropriate ways, too.
1.) See e.g., U.S. Const. amend. XIX.
- Third, the the Constitution allows for no dichotomy between ‘organized militia’ and ‘unorganized militia’.
Third, the the Constitution allows for no dichotomy between “organized militia” and “unorganized militia”, but instead mandates that Congress “provide for organizing * * * the Militia” in their entirety, with no exceptions, exclusions, or excuses express or implied (footnote 1)—other than, of course, the types of exemptions allowed under the pre-constitutional Colonial and State Militia Acts, that are part and parcel of the constitutional definition of “Militia”. And “where no exception is made in terms, none will be made by mere implication or construction”. (footnote 2)
The Framers knew how to draft legal language that distinguished between a whole and its parts. Indeed, precisely with respect to the Militia in that very same clause, they empowered Congress “to provide for governing such Part of them as may be employed in the service of the United States”. (footnote 3) That they extended the power to “govern [ ]” only such Part of the[ Militia]”, but the power to “organiz[e]” applies to the whole. (footnote 4) This makes perfect practical sense, because the whole of “the Militia of the several States” should be “organiz[ed]” to such uniform National standards that any “Part of them” that may be “called forth” (footnote 5) can be expected to perform its assigned duties adequately; whereas only in that particular “Part of them as may be employed in the Service of the United States” needs to be “govern[ed]” in conformity with those duties when such an occasion arises.
True enough, until common Americans receive or acquire some organization, arms, discipline, and training—whether by Congress, or in default of Congress by the States, or in default of both of them by WE THE PEOPLE on their own—they constitute “Militia” in name only, and are not “well regulated”. Yet even the name by itself retains legal significance, because no amount of neglect by Congress and the States can excise “the Militia of the several States” from the Constitution, extinguish the duty of all able-bodied Americans to serve in them, and eliminate “the right of the people to keep and bear Arms” for that purpose. So, unless Congress and the States may destroy the Militia’s very constitutional status by getting their practical substance, “unorganized militia” are a constitutional impossibility.
To be sure, the Constitution also empowers Congress “[t]o * * * grant Letters of Marque or Reprisal, and make Rules concerning Captures on Land and Water”, (footnote 6) with no exceptions. Yet for generations Congress has let this ground lie fallow. Although on superficial examination these powers may appear anachronistic, as part of a program of “homeland security” designed to protect America’s maritime borders in the most comprehensive manner economically feasible “Letters of Marque and Reprisal” might serve uniquely beneficial purposes. In any event, the question of deploying privateers is ultimately for Congress, which has a fiduciary duty to exercise those powers whenever and wherever that exercise is necessary and proper, but otherwise not. (footnote 7)Distinguishably the Second Amendment settles once and for all whether the exercise of Congress’s power “[t]o provide for organizing, arming, and disciplining, the Militia” in their entirety is necessary and proper. The Founding Fathers believed the necessity to be of such magnitude that they expressed it as a general conclusion of law applicable applicable to every State: “[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”. So Congress’s duty in that regard as to the whole “people” is beyond cavil or evasion.(footnote 8)
1.) U.S. Const. art. I, § 8, cl. 16 (emphasis supplied).
2.) Rhode Island v. Massachusetts, 37 U.S. (12 Peters) 657, 722 (1838).
3.) U.S. Const. art. I, § 8, cl. 16 (emphasis supplied).
4.) On this rule of construction, see e.g., Williams v. United States, 289 U.S. 553, 572-573 (1933).
5.) U.S. Const. art. I, § 8, cl. 15.
6.) U.S. Const. art. I, § 8, cl. 11.
7.) Compare United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), with U.S. Const. art. I § 8, cl. 18.
8.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 51-52.
- Fourth, The National Guard and the Naval Militia cannot be constitutionally any parts of ‘the Militia of the several States’.
Fourth, although plainly “organized” both the National Guard and the Naval Militia, and their State components as well, are not—and constitutionally cannot be—any parts of “the Militia of the several States”, if only because they are not coextensive with WE THE PEOPLE as a whole. (footnote 1)
1.) State Guards are the “Troops” the “States may keep * * * in time of Peace” “with [ ] the Consent of ingress”. See U.S. Const. art. § 10, cl. 3. See generally, e.g., Ansell, “Legal and Historical Aspects of the Militia”, 26 Yale Law Journal 471 (1917); Wiener, “The Militia Clause of the Constitution”, 54 Harvard Law Review 181 (1940); David Hardy, “The Militia is Not the National Guard”, in Larry Pratt, Editor, Safeguarding Liberty: The Constitution and Citizen Militias (Franklin, Tennessee: Legacy Communications, 1995), at 99. See also Perpich v. Department of Defense, 496 U.S. 334 (1990).
- Congress has left what it calls the ‘unorganized militia’ entirely unorganized, unarmed, undisciplined, and ungoverned by any statute of the General Government.
Fifth, Congress has left what it calls “the unorganized militia” (and the great number of other Americans whom Congress disregards altogether) entirely unorganized, unarmed, undisciplined, and ungoverned by any statute of the General Government—notwithstanding that Congress’s explicit authority and duty in the premise is precisely “[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”, not “[t]o provide [against] such readiness, (footnote 1) or arbitrarily to redefine “the Militia of the several States” so as to exclude millions of eligible individuals.
1.) Compare U.S. Const. art. I, § 8, cl. 16 (emphasis supplied) with United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), and with Martin v. Hunter’s Lessee, 14 U.S. (1 Wheaton) 304, 328-329 (1816).
- By consigning huge numbers of Americans to the ‘unorganized militia’ Congress prevents itself and the President from performing their constitutional duties and leaving tens of millions of people wholly unprepared .
By consigning huge numbers of Americans to the “unorganized militia” and relegating others to no “militia” at all, Congress prevents itself from performing to a satisfactory degree its own vital constitutional duty “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”, (footnote 1) because tens of millions of Americans are wholly unprepared to be “call[ed] forth” with the “organize[ation], arm[s], and discipline[e]” necessary and proper for those functions.
And if so many individuals eligible for—and constitutionally required to serve in—the Militia remain unorganized, unarmed, and undisciplined, then the President, as “Commander in Chief * * * of the Militia of the several States, when called into the actual service of the United States”, (footnote 2) cannot satisfactorily exercise his constitutional power to perform his constitutional duty to “take Care that the Laws be faithfully executed” (footnote 3) in those situations when and where a significant portion of the three constitutional Militia ought to be “call[ed] forth” * * * to execute the Laws of the Union”. So, by stripping the President of the means to employ and fulfill his constitutional power and duty, Congress violates its own duty “[t]o make all Laws which shall be necessary and proper for carrying into Execution * * * all * * * Powers vested by th[e] Constitution in the Government of the United States, or in any * * * Officer thereof”. (footnote 4)
1.) U.S. Const. art. I, § 8, cl. 15.
2.) U.S. Const. art. II, § 2, cl. 1.
3.) U.S. Const. art. II, § 3.
4.) U.S. Const. art. I, § 8, cl. 18.