Power of the Sword: We the People organized, armed and trained pursuant to statute as Militia—State Government Institutions Exercising constitutional legal authority

Also see “the Militia of the several States” • Militia: Entrusted with “Police Powers” • Militia: Not Part of the Regular Armed Forces of the Union or of the States • “General Government” vs. “Federal Government” • Why Have the Militia Faded as a Popular Concern?

“Power of the Sword”

The essence of government is coercion, to make people perform their duties or suffer some other consequence. The Constitution lodges most of this power directly in the hands of THE PEOPLE themselves. There is a certain amount of power that is in the President. There is a certain amount of power that is in the Congress. But in reality all the operational power—who has the guns, who has the training, who has the command—it’s all on the side of the people. The Constitution recognizes that the average American is to be “organize[d], arm[ed] and train[ed]” (footnote 1) at all times to be in service of “a well regulated Militia” to provide themselves with security—the “security of a free State” (Second Amendment). And in the extreme case, the circumstances may arise in which the people discover that they may have to exercise “their right” and “their duty” to deal with oppressive rogue officials. You can see how this comes right out of the Founder’s experience:

“But when a long train of abuses and usurpations pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty to throw off such government, and provide new guards for their future security.”

Declaration of Independence July 4, 1776

 

The “power of the sword”—that is the control of force—is to always be in the hands of WE THE PEOPLE, who claim authorship of and are the inheritors of Constitution. As the Declaration of Independence proclaimed, “governments are instituted among men, deriving their just powers (and only ‘just powers’) from the consent of the governed.” And consent is something by hypothesis can be withdrawn in the event some form of oppressive government tries to exercise “unjust powers”. If I have an agent and he is not performing properly, I take away his authority because his authority is the sole product of my consent. And if this agent by happenstance has gained certain kinds of physical power, which I put in his hands that make him potentially dangerous to me—if he steps out of line—if he crosses the line beyond his authority—I had better have the physical ability to bring him back across the line or otherwise deal with him on those terms. The unique institutions constitutionally sanctioned for this purpose are “the Militia of the several States”—the “well regulated Militia” which the Second Amendment recognizes to be “necessary to the security of a free State”.

WE THE PEOPLE declared in our Constitution that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government”. (footnote 2) The Constitution does not expressly define “a Republican Form”. But it also does not—cannot—leave that definition to the General Government, either (footnote 3) To the contrary: the Constitution treats “the Militia of the several States as perpetual in existence and permanent in authority and character. Therefore, because each of the “several States” must maintain her own Militia, and because “every State in this Union” must be guaranteed “a RepublicanForm of Government”, then simply per force of constitutional logic, “a Republican Form” must encompass Militia in every State.

Perforce of American history, too, in the scores of substantively identical Militia Acts enacted in every Colony and independent State for nearly one hundred fifty years from the early 1600s through the ratification of the Constitution in 1788. Every State government in America between 1776 and 1788 was “Republican” in form. Every Colony in America prior to 1776 had established and maintained as integral parts of their governmental structures, Militia that had enrolled essentially every “able-bodied free male in their jurisdictions. Therefore, such Militia constitute an essential characteristic of “a Republican Form of Government”. For such an unbroken legislative cavalcade provides “unmistakable evidence of what was republican in form, within the meaning of hat term as employed in the Constitution”. (footnote 4) 

All of the pre-constitutional Colonial and State Militia Acts defined the necessary relationship between the Militia and firearms by requiring every able-bodied adult free male personally to possess in his home suitable firearms, ammunition, and necessary accoutrements, and to bear them abroad whenever needful for Militia service. Therefore, “a Republican Form of Government” must protect the right of individuals—and even impose on them the duty—to keep and bear arms at least to that degree and in that manner. (footnote 5)

  • Footnotes

    1.) U.S. Const., art. I, § 8, cl. 16.

    2.) U.S. Const., art. 4, § 4.

    3.) See Eisner v. Macomber, 252 U.S.189,206 (1920)

    4.) Minor v. Happersett, 88 U.S. (21 Wallace) 162, 176 (1875) (dictum).

    5.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 49.