The Militia of the several States
Governmental Institutions that Exercise Governmental Authority—Thoroughly Civilian—
Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 99.
Also see “Militia”: What are They? • “Militia” Defined • Militia: Not the Product of “Common Law” • Militia: Not Private Associations • Militia: Near Universal Membership • United States Constitution and the Federal System
“The Militia of the several States”: Governmental Institutions, Thoroughly Civilian
“The Militia of the several States” are constitutional establishments, no less parts of the federal system than Congress, “the Office of the President“, the Supreme Court or the several States. (footnote 2) Indeed, inasmuch as the Militia are composed of near to the totality of WE THE PEOPLE themselves—the only parts of the federal system that can boast that distinction—their longevity exceeds that of Congress, “the Office of the President”, the Supreme Court , and the States, because those entities are the People’s mere creatures, whereas the Militia are the physical embodiments of THE PEOPLE’S “‘[p]olitical power that grows out of the barrel of a gun'”. (footnote 3) In 1788 WE THE PEOPLE “ordain[ed] and establish[ed] th[e] Constitution”, and through it Congress, “the Office of the President” and the Supreme Court. (footnote 4) In 1776 “the good People of the[ ] Colonies” caused their “REPRESENTATIVES” to “publish and declare, That the [ ] United Colonies are, and of Right ought to be FREE AND INDEPENDENT STATES”. (footnote 5) But long before either of those events, THE PEOPLE themselves served in the Militia throughout America.
Moreover, the political status of the Militia, not just their longevity, is superior to that of Congress, “the Office of the President”, the Supreme Court, and the States. All of the latter are THE PEOPLE’S mere “representatives”, whereas the Militia are THE PEOPLE, unmediated by possibly faulty “representation”. Because in America THE PEOPLE alone are sovereigns, (footnote 6) they themselves must always control the “‘[p]olitical power [that] grows out of the barrel of a gun'”, not delegate (let alone surrender) that control to “representatives”. To be sure of such personal control, they must always control the guns in their own hands. The only institutions which enable them to do that are the Militia. (footnote 7)
The Second Amendment, after all, does not describe “[a] well regulated Militia” as “being necessary to the security of a free State” without abundant support in the historical record. To the contrary: It was largely through the efforts of the Militia—in the face of the gravest adversities, and against the determined resistance of powerful enemies who compassed their destruction, if they refused to bend to subjection—that WE THE PEOPLE secured their independence and established just governments throughout America in the late 1700s. That Americans thus won their own freedom through their own efforts was the original cause and the most important effect of what has come to be called “American exceptionalism”. (footnote 8)
- The meanings of the original Constitution and the Bill of Rights known at the times of their ratifications.
The specific problem of how to interpret the language of the Constitution first arose—and was definitively solved for all time thereafter—in the late 1700s. The original Constitution was ratified in State Conventions from 7 December 1787 through 21 June 1788; and the Bill of Rights was ratified by the States’ legislatures from 20 November 1789 through 15 December 1791. (footnote 1) At that point in time, in order to be “ratified” in any rational sense of that verb, the original Constitution and the Bill of Rights individually and together had to have meanings, in every word and phrase, fully accessible to the individuals who ratified them—that is, WE THE PEOPLE who the Preamble itself asserts “ordain[ed] and establish[ed] this Constitution”, and their representatives in the States’ legislatures. THE PEOPLE and their representatives had to understand exactly what they were “ordain[ing] and establish[ing]” and “ratifying”. Before they took those fateful steps, they had to be assured of far more than that the original Constitution and its Amendments would be explained to them, piece by piece in some random fashion, only at unpredictable later dates in an uncertain future, and then only according to the unilateral interpretations of public officials whose identities they did not yet know, or might never know, and of whose competence and good faith they could have no guarantee. So THE PEOPLE must have believed that no facts material to any question of constitutional interpretation were unascertainable in principle, let alone affirmatively withheld or knowingly and willfully misrepresented by their agents in the Federal Convention that drafted the original Constitution, the State Conventions that ratified it, the Congress that drafted the Bill of Rights, and the State legislatures that ratified the first ten Amendments. (footnote 2)
1.) See House Document No. 94-539, ante note 3, at 10, 12; Documents Illustrative of the Formation of the Union of the American States, ante note 1, at 1007-1061, 1063-1067. Hereinafter, unless otherwise qualified, reference to “the Constitution” simpliciter should be taken to include the original Constitution and all of its subsequent Amendments in existence at the relevant time.
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 27-28.
- ‘the Militia of the several States’ are a tangible ‘check’ against rogue government officials who break the law under color of law—what the Framers called ‘usurpation’ and ‘tyranny’.
To be a valid “social contract” as American political philosophy understood the term at that point in time, the original Constitution upon its adoption had to embody a definite “meeting of the minds” among WE THE PEOPLE as to its substance. So, too, for every subsequent Amendment when it was ratified. For no prudent individuals, as individuals or as a polity, would—or rationally could—enter into a “contract” of any nature the meaning of which they did not then and there understand, or the meaning of which could unpredictably be changed at any time in the future at the mere whim of less than all of the contracting parties in a manner to which all of them did not originally agree. And to be a valid “law” at that point in time, the original Constitution (and then its various Amendments as each of them was ratified) had to have ascertainable meanings in all of their particulars. For, ultimately, the Constitution and its Amendments are statutes—and any statute composed “in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”. (footnote 1) So, if perforce of unintelligibility the original Constitution had not been a true “social contract” and a “law” at that point in time, neither it nor its subsequent Amendments could ever have become such, either then or thereafter. And if the Constitution had not been a “social contract” and a “law” then, so that it and its Amendment do not qualify as a “social contract” and “law” now, then they are useless—except for deceiving common Americans into sheepishly acquiescing in endless usurpation and tyranny directed against themselves, and otherwise stirring up other potentially limitless mischief and grief. (footnote 2)
The Framers found their foundational political and legal principles laid out then most recently in the work of John Locke (footnote 3) and Algernon Sidney, (footnote 4) whom Thomas Jefferson ranked as the two well-springs from which Americans drew their political inspirations with respect to liberty and men’s unalienable rights. (footnote 5)
In keeping with the necessity to interpret constitutional terms according to the meanings they had during the pre-constitutional era, “usurpation” and “tyranny”—which are paradigmatic categories of unconstitutional actions—should be defined. According to Locke, “Usurpation is the exercise of Power, which another hath a Right to”. (footnote 6) According to Sidney, three forms of usurpation were the most common:
- The first is, when one or more men take upon them the power and name of a magistracy, to which they are not justly called.
- The second, when one or more being justly called, continue in their magistracy longer than the laws by which they are called do prescribe.
- And the third, when he or they who are rightly called, do assume a power, tho within the time prescribed, and that the law does not give; or turn that which the law does give, to an end different and contrary to that which is intended by it. (footnote 7)
“Tyranny is the exercise of Power beyond Right, which no Body can have a Right to. And this is making use of the Power that any one has in his hands; not for the good of those, who are under it, but for his own private separate Advantage. When the Governour, however intituled, makes not the Law, but his Will, the Rule; and his Commands and Actions are not directed to the preservation of the Properties of his People, but the satisfaction of his own Ambition, Revenge, Covetousness, or any other irregular Passion.
* * * * *
’Tis a Mistake to think this Fault is proper only to Monarchies;
other Forms of Government are liable to it, as well as that. For where-ever the Power that is put in any hands for the Government of the People, and the Preservation of their Properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the Arbitrary and Irregular Commands of those that have it: There it presently becomes Tyranny, whether those that thus use it are one or many.” (footnote 8)
To which Sidney agreed,
“that regard is to be had to the principal end and cause, for which a * * * lord is set over [a people] which is their good and profit, and not that it should turn to their destruction and ruin; for if that should be, there is no doubt but from thence forward, that power would be tyrannical and unjust, as tending more to the interest and profit of that lord, than to the publick good and profit of the subjects; which, according to natural reason, and the laws of God and man, is abhorred, and deserves to be abhorred.” (footnote 9)
This definition of “tyranny”, of course, was not original with either Locke or Sidney. Much earlier Thomas Aquinas had opined that “[a] tyrannical régime is not just, because it is not directed to the common good but to the private good of the one who rules”. (footnote 10) For another example, the eminent theologian and jurist Francisco de Vitoria, following Aquinas, held to the same definition: “Herein, indeed, is the difference between a lawful king and a tyrant, that the latter directs his government towards his individual profit and advantage, but a king to the public welfare[.]” (footnote 11)
1.) Connally v. General Construction Company, 269 U.S. 385, 391 (1926).
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 28.
3.) Two Treatises of Government (London, England: Awnsham & John Churchill, 1698), Book II, Chapters XVII, XVIII, and XIX.
4.) Discourses Concerning Government [written in 1681-1683, published posthumously in 1698], Thomas G. West, Editor (Indianapolis, Indiana: Liberty Fund, Revised Edition, 1996).
5.) See Thomas G. West, Foreword, in id. at xv (footnote omitted). See C. Robbins, The Eighteenth-Century Commonwealthman, ante note 27, at 46.
6.) Two Treatises of Government (London, England: Awnsham & John Churchill, 1698), Book II, Chapter XVIII, § 199.
7.) Discourses Concerning Government [written in 1681-1683, published posthumously in 1698], Thomas G. West, Editor (Indianapolis, Indiana: Liberty Fund, Revised Edition, 1996) at 220.
8.) Two Treatises of Government (London, England: Awnsham & John Churchill, 1698), Book II, Chapter XVIII, §§ 199 and 201.
9.) Discourses Concerning Government [written in 1681-1683, published posthumously in 1698], Thomas G. West, Editor (Indianapolis, Indiana: Liberty Fund, Revised Edition, 1996) at 51-52 (footnote omitted) (quoting Bartolomé de Las Casas).
10.) Summa Theologiae, Secunda Secundae, Quaestio 42, De Seditione, Articulus 2, Ad Tertium, in Edita Auspiciis et Inspiratione Pontificiae Universitatis Salmanticensis (Biblioteca de Autores Christianes, Tertio Editio, 1963), Volume III, at 277 (the present author’s translation).
11.) De Iure Belli (1557), quoted in James Brown Scott, The Catholic Conception of International Law—Francisco de Vitoria, Founder of the Modern Law of Nations—Francisco Suárez, Founder of the Modern Philosophy of Law in General and in Particular of the Law of Nations, A Critical Examination and a Justified Appreciation (Washington, D.C.: Georgetown University Press, 1934), at 38.
- The Second Amendment secures a more expansive right than merely individual self-defense under any and all circumstances.
The Second Amendment implicitly secures an even more expansive “right of the people to keep and bear Arms” for individual self-defense under any and all circumstances. Sir William Blackstone, renowned author of the Commentaries on the Laws of England, was the Founding Fathers’ legal mentor. “At the time of the adoption of the Federal Constitution [the Commentaries] had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the framers of the Constitution were familiar with it.” (footnote 1) For as Blackstone made clear, “[s]elf defence * * * as it is justly called the primary law of nature, so it is not, neither can it be in fact be taken away by the law of society.” (footnote 2) Plainly, however, that is not the Amendment’s express purpose. For in strict legal analysis, personal self-defense is a “privilege”, which one may choose to assert or exercise, or not. as he alone deems appropriate. An aggressor has no right to claim that his victim should not defend himself; but the victim labors under no personal duty to do so. (footnote 3) In any community organized in Anglo-American political principles, however, everyone shares the legal duty, which government may enforce against him, to participate in defense of that society against aggressors and lawbreakers. This is not a matter of persona choice. No one can assert a legal privilege or immunity of absolute pacifism or conscientious objection (although the society may grant such privilege or immunity as a matter of legislative grace). (footnote 4)
1.) Schick v. United States, 195 U.S. 65, 69 (1904). See, e.g., The Federalist No. 84 notes [1and 2].
2.) Commentaries on the Laws of England,(Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 3, at 3-4 (footnote omitted) (bold-face emphasis supplied).
3.) See generally, Wesley N. Hohfeld, Fundamental Legal Conceptions As Applied In Judicial Reasoning (New Haven Connecticut: Yale University Press, 1964).
4.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, Bookmasters Inc., Ashland, Ohio (2007), by Dr. Edwin Vieira, Jr., page 42-43.
- The duty of communal self-defense places a corresponding duty on all public officials not to infringe upon ‘the right of the people to keep and bear Arms’.
Under the Constitution, the duty of communal self-defense requires all able-bodied individuals to serve in “A well regulated Militia”. To ensure the fulfillment of this duty—particularly against aggression and lawbreaking by domestic usurpers and tyrants—the Constitution recognizes an absolute “right of the people to keep and bear Arms”, and a corresponding duty of all public officials not to “infringe[ ]” upon that right. The Founders wrote the Second Amendment as they did so as to emphasize that each individual citizens’s duty to keep and bear Arms precedes, explains, justifies, and directs the primary exercise of the right, and in and of itself constitutes an absolute limitation on the power of public officials. (footnote 1)
1.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, Bookmasters Inc., Ashland, Ohio (2007), by Dr. Edwin Vieira, Jr., page 43 (bold emphasis supplied).
- Justice Joseph Story recognized the Militia Institution as the ultimate guarantor of ‘a free State’ (Second Amendment) in his Commentaries on the Constitution of the United States.
As Justice Joseph Story observed, in a passage that cannot be repeated to often:
“The militia is the natural defence of a free country against *** domestic usurpation of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses with which they are attended and the facile means which they afford to ambitious and unprincipled rulers to subvert the government or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” (footnote 1)
1.) Commentaries on the Constitution of the United States (Boston, Massachusetts: Little, Brown, and Company, Fifth Edition, 1905), Volume 2, § 1897, at 646 (footnote omitted) (emphasis supplied).
True constitutional Militia are government establishments, preëxisting by dint of the Constitution under Congressional or, in default thereof, State statute, according to the principles and practices of the pre-constitutional Colonial and State Militia Acts. * * * The Militia enjoy governmental status and exercise governmental authority. (footnote 9)
1.) U.S. Const. preamble.
2.) Compare U.S. Const. art I, § 8 cls 15 and 16; art. II § 2 cl. 1; and amend II with art. I, § 1; art II, § 1, cls. 1 and 4; and art. III, § 1.
3.) Compare Quotations from Chairman Mao Tse-tung (Peking China: Foreign Languages Pres., First Edition, 1968), at 61 with U.S. Const. amend. II.
4.) Id. at 1.
5.) Declaration of Independence.
6.) See Afroyim v. Rusk, 387 U.S. 253, 257 1967); and Chisolm v. Georgia, 2 U.S. (2 Dallas) 419, 454 and 456-457 (opinion if Wilson, J.), 470-472 (opinion of Jay, C.J.) (1793).
7.) By Tyranny Out of Necessity: The Bastardy of Martial Law, by Dr. Edwin Vieira, Jr., Bookmasters Inc., Ashland, Ohio (2014), page 454-455.
8.) 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 x (Author’s Preface).
9.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, Bookmasters Inc., Ashland, Ohio (2007), by Dr. Edwin Vieira, Jr., page 161.