Militia: Legal Structure Homeland Security

Militia: Immune From Contemporary “Gun Control”

Every individual possibly eligible for service in “the Militia of the several States” must enjoy untrammeled access to a free market in firearms, ammunition, and accoutrements that may to any degree prove useful for such service.

By Constitutional Militia

Last Updated on September 2, 2022 by Constitutional Militia

Constitutional Militia: Immune From All Contemporary Forms of “Gun Control”

Unlike some other powers and disabilities of Congress and the States, their powers and disabilities with respect to the Militia do need to be carefully parsed. For example, the Constitution delegates several powers to the General Government while simultaneously imposing corresponding disabilities on the States—such as with respect to levying “Duties” and “Imposts”;[1] “coin[ing] Money”;[2] “rais[ing] and support[ing] Armies” and “provid[ing] and maintain[ing] a Navy”, on the one hand, but not “keep[ing] Troops, or Ships of War in time of Peace” “without the Consent of Congress”, on the other;[3] and “mak[ing] Treaties”, one the one hand, but not “enter[ing] into any Treaty” under any conditions or “into any Agreement or Compact * * * with a foreign Power” “without the Consent of Congress”, on the other.[4] The Constitution also delegates to the General Government certain powers without imposing any additional express disabilities on the States, because the powers are so defined as to be inherently exclusive in their nature or when exercised—such as the powers “[t]o lay and collect Taxes * * * to pay the Debts and provide for the common Defence and general Welfare of the United States”,[5] “[t]o borrow Money on the credit of the United States”,[6] and “[t]o establish an uniform Rule of Naturalization, and uniform Laws on the Subject of Bankruptcies throughout the United States”.[7] With respect to the two powers of Congress over the Militia, however, neither of these situations obtains.[8]

The Constitution empowers Congress

• [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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.[9]

Constitutionally, Congress governs only “Part” of the Militia. Otherwise the constitutional State Militia Structure is entirely outside Congress’s jurisdiction. The unavoidability of this conclusion appears perhaps most patently in the portion of Congress’s power that authorizes it “[t]o provide * * * for governing such Part of them [that is, the Militia] as may be employed in the Service of the United States”.[1] If Congress may provide for governing only that “Part” of the Militia “employed in the Service of the United States”, who is to govern the remainder of the Militia at that time, and all of the Militia when no “Part of them” is so employed? The Constitution itself decrees that it cannot be Congress. Therefore it must be the States, or in the event of the States’ default “the people” themselves[2]—unless the Constitution implicitly commands the absurd result that under those circumstances the Militia (in “Part” or in whole) are not to be “govern[ed]” at all. But such a result the Constitution obviously precludes, when it “reserv[es] to the States respectively, the Appointment of the Officers [of the Militia]”,[3] thereby retaining almost all actual authority of command in the States, because the only officer of the General Government who is simultaneously an officer in any of “the Militia of the several States” is the President of the United States (and then only when the Militia are “called into the actual Service of the United States”).[4]

FOOTNOTES:

1.) U.S. Const. art. I, § 8, cl. 16.

2.) See U.S. Const. amends. II and X.

3.) Id. at 1.

4.) U.S. Const. art. II, § 2, cl. 1.

Over the years, Congress has repeatedly recognized the immunity from typical forms of “gun control” enjoyed by the States and their Militia, or law- enforcement personnel or agencies who or which would become integral parts of “the Militia of the several States” were the latter properly revitalized today. For example—

• [1927] “[P]istols, revolvers, and other firearms capable of being concealed on the person are hereby declared to be nonmailable, and shall not be deposited in or carried by the mails * * * : Provided, That such articles may be conveyed in the mails, * * * for use in connection with their official duty, to officers of the * * * Militia of the several States[.]”[1]

• [1934] “This Act shall not apply to the transfer of firearms (1) to * * * any State * * * or to any political subdivision thereof * * * ; (2) to any peace officer[.]”[2]

• [1938] “The provisions of this Act shall not apply with respect to the transportation, shipment, receipt, or importation of any firearm, or ammunition, sold or shipped to, or issued for the use of, * * * any State * * * or any department, independent establishment, or agency thereof; * * * any duly commissioned officer or agent of * * * a State * * * or any political subdivision thereof[.]”[3]

• [1968] “The provisions of this chapter shall not apply with respect to the transportation, shipment, receipt, or importation of any firearm or ammunition imported for, or sold or shipped to, or issued for the use of * * * any State * * * or any department, agency, or political subdivision thereof.”[4]

• [1968] “The provisions of this chapter shall not apply with respect to the transportation, shipment, receipt, or importation of any firearm or ammunition imported for, or sold or shipped to, or issued for the use of * * * any State * * * or any department, agency, or political subdivision thereof.”[5]

• [1968] “A firearm may be transferred without the payment of the transfer tax * * * to any State * * * , any political subdivision thereof, or any official police organization of such a government entity engaged in criminal investigations.” And “[a] firearm may be made without payment of the making tax * * * by, or on behalf of, any State, * * * any political subdivision thereof, or any official police organization of such a government entity engaged in criminal investigations.”[6]

• [1986] “[I]t shall be unlawful for any person to transfer or possess a machinegun”, except that “[t]his subsection does not apply with respect to * * * a transfer to or by, or possession by or under the authority of * * * a State, or a department, agency, or political subdivision thereof[.]”[7]

• [1990] “It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone”, except that this prohibition “shall not apply to the possession of a firearm * * * if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State”, or “by a law enforcement officer acting in his or her official capacity”.[8]

• [1994] “It shall be unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon”, except that this prohibition “shall not apply to * * * the manufacture for, transfer to, or possession by * * * a State or a department, agency, or political subdivision of a State, or a transfer to or possession by a law-enforcement officer employed by such an entity for purposes of law enforcement (whether on or off duty)”. And “[i]t shall be unlawful for a person to transfer or possess a large capacity ammunition feeding device”, except that this prohibition “shall not apply to * * * the manufacture for, transfer to, or possession by * * * a State or a department, agency, or political subdivision of a State, or a transfer to or possession by a law-enforcement officer employed by such an entity for purposes of law enforcement (whether on or off duty)”.[9]

• [1996] “It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone”, except that this prohibition “does not apply to the possession of a firearm * * * if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State”, or “by a law enforcement officer acting in his or her official capacity”.[10]

Footnotes:

1.) An Act Declaring pistols, revolvers, and other firearms capable of being concealed on the person nonmailable and providing penalty, Act of 8 February 1927, CHAP. 75, 44 Stat. 1059, 1059.

2.) AN ACT To provide for the taxation of manufacturers, importers, and dealers in certain firearms and machine guns, to tax the sale or other disposal of such weapons, and to restrict importation and regulate interstate transportation thereof (“National Firearms Act”), Act of 26 June 1934, CHAPTER 757, § 13, 48 Stat. 1236, 1240.

3.) AN ACT To regulate commerce in firearms (“Federal Firearms Act”), Act of 30 June 1938, CHAPTER 850, § 4, 52 Stat. 1250, 1252.

4.) AN ACT To assist State and local governments in reducing the incidence of crime, to increase the effectiveness, fairness, and coordination of law enforcement and criminal justice systems at all levels of government, and for other purposes (“Omnibus Crime Control and Safe Streets Acts of 1968”), Act of 19 June 1968, Pub. L. 90-351, TITLE IV—STATE FIREARMS CONTROL ASSISTANCE, § 902 [§ 925(a)], 82 Stat. 197, 233.

5.) AN ACT To amend title 18, United States Code, to provide for better control of the interstate traffic in firearms (“Gun Control Act of 1968”), Act of 22 October 1968, Pub. L. 90-618, TITLE I—STATE FIREARMS CONTROL ASSISTANCE, § 101 [§ 925(a)(1)], 82 Stat. 1213, 1224.

6.) Act of 22 October 1968, TITLE II—MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER FIREARMS, § 201 [§ 5853(a) and (b)], 82 Stat. at 1233-1234.

7.) An Act To amend chapter 44 (relating to firearms) of title 18, United States Code, and for other purposes (“Firearms Owners’ Protection Act”), Act of 19 May 1986, Pub. L. 99-308, § 102 [§ 922(o)(1) and (2)], 100 Stat. 449, 453.

8.) An Act To control crime (“Crime Control Act of 1990”), Act of 29 November 1990, Pub. L. 101-647, TITLE XVII—GENERAL PROVISIONS, § 1702 (“Gun-Free School Zones Act of 1990”) [§ 922(q)(1)(A) and (B)(ii) and (vi)], 104 Stat. 4789, 4844.

9.) An Act To control and prevent crime (“Violent Crime Control and Law Enforcement Act of 1994”), Act of 13 September 1994, Pub. L. 103-322, TITLE XI—FIREARMS, Subtitle A—Assault Weapons, §§ 110102 and 110103 [§ 922(v)(1) and (4)(A) and (w)(1) and (3)(A)], 108 Stat. 1796, 1996-1997, 1999.

10.) An Act Making omnibus consolidated appropriations for the fiscal year ending September 30, 1997, and for other purposes, Act of 30 September 1996, TITLE VI—GENERAL PROVISIONS, § 657 [§ 922(q)(1)(A) and (B)(ii) and (vi)], 110 Stat. 3009, 3009-370 to 3009-371.

Once the Militia have been revitalized, though, their members will no longer be mere “private individuals” as against the General Government, but instead will be officials of the governments of their respective States—exercising constitutional authority reserved to the States both in the original Constitution, with its incorporation of “the Militia of the several States” into its federal structure, and in the Second and Tenth Amendments—and against whom in that capacity Congress cannot direct its powers “[t]o lay and collect Taxes” or “[t]o regulate Commerce”. Rather, once the Militia are revitalized, the only “gun control” that Congress may put into practice will be to exercise its power “[t]o provide for * * * arming * * * the Militia”[1] so as to guarantee that, somehow or other, all eligible Americans are in permanent personal possession of firearms and ammunition suitable for Militia service. In addition (for what it may be worth), once the Militia have been revitalized, District of Columbia v. Heller and those judicial decisions following it will become irrelevant as well as erroneous, because Heller derived the so-called “individual right” it upheld—along with the limitations on that right it purported to approve—from a misreading of the Second Amendment which expressly eschewed any reliance upon the clause “[a] well regulated Militia, being necessary to the security of a free State”.[2]

Footnotes:

1.) U.S. Const. art. I, § 8, cl. 16.

2.) See 554 U.S. at 576-600 (Scalia, J., for the Court).

“[T]he Militia of the several States” enjoy immunity from all contemporary forms of “gun control” by the General Government. This immunity derives primarily from three principles:

(i) Almost all “gun control” issuing from the General Government is predicated upon purported exercises of Congress’s powers “[t]o lay and collect Taxes” and “[t]o regulate Commerce with foreign Nations, and among the several States”.[1] But

(ii) the General Government cannot tax the States or their instrumentalities, because “the power to tax involves the power to destroy”,[2] and the General Government has no authority to destroy the States, by taxation or otherwise.[3] And

(iii) the States and their instrumentalities do not constitute “Commerce”, and therefore cannot be regulated as such.[4] So this immunity is constitutionally absolute.

Footnotes:

1.) U.S. Const. art. I, § 8, cls. 2 and 3.

2.) McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 431 (1819).

3.) See post, at 1456-1462.

4.) See post, at 1462-1470.

The procedure for immunizing from control by the General Government (other than the power of Congress “[t]o provide for * * * arming * * * the Militia”) the firearms already in common Americans’ possession, as well as firearms they might acquire in the future, would be straightforward:

• Once the Militia were revitalized, every able-bodied American from (say) sixteen to fifty or fifty-five years of age would be required perforce of a State statute to enroll. Those from fifty or fifty-five years of age upwards would not be compelled to enroll, but could voluntarily do so. Every individual so enrolled could then immunize all of the firearms he possessed (and, presumably, owned) simply by dedicating pro tempore those firearms to Militia service.

• The Local Committee of Safety[1] would supply a standard form on which every individual Militiaman would list his firearms, describing each one by reference to its manufacturer, model, caliber, and serial number. In addition, the Militiaman could list various special accessories in service with his particular firearms, such as magazines, optical sights, night- vision devices, slings, bipods, spare parts, and specialized tools for take-down and repair.

• Once completed, this form would be executed by the Militiamen and notarized (or otherwise legally witnessed), and a tab imprinted with an unique serial number (also appropriately witnessed) would be detached and filed with the Local Committee of Safety. This tab would neither contain any information about any particular firearm, nor identify the particular individual submitting it, but:

(i) would serve as conclusive evidence in any future proceeding of the completion of the form on a particular date, and the correctness of its contents with respect to all of the firearms listed thereupon; and

(ii) would officially dedicate those firearms to that individual’s Militia service as of that date. The individual who completed the form would retain it in his own safekeeping, to be brought forth if ever it were necessary to establish which firearms and related equipment he had dedicated to that service and when.

• As of the date the form was notarized, the firearms so listed would no longer be subject to “gun control” by the General Government (or, of course, by the State, which would hardly pursue a course of “gun control” after revitalizing her Militia), because they would then have been transformed from individual into Militiafirearms, and thus into instrumentalities of the State herself, the possession of which by her citizens within “[a] well regulated Militia” the Constitution itself declares “necessary to the security of a free State”.[2]

• Any firearm and equipment an individual acquired later on could also be dedicated to his Militia service by filing an additional form at that time. Conversely, any firearm that had once been so dedicated could be returned to the individual’s mere private possession. And if a firearm once dedicated to Militia use were sold, given away, permanently removed from the State, lost, or stolen, it would have to be officially deleted from that individual’s list (unless and until returned or recovered).

• No limit would be imposed on the types or numbers of firearms an individual could dedicate to his Militia service, because:

(i) under circumstances as they might arise any firearm might prove useful to him for that purpose; and

(ii) even if someone possessed more firearms than he might need for his own Militia service at any particular moment, at a later date he might help to provide for the common defense by transferring possession of some of those firearms to others, in the meantime serving as a kind of “home arsenal” in his neighborhood.

• The same form would allow the preparer to record that he was maintaining personal possession of ammunition of calibers suitable for use in the firearms identified on the form. No requirement would exist for him to state what quantities or types of ammunition were involved, because the Militia would desire to encourage its members to operate, with the minimum amount of “red tape”, according to the precept that “one can never have too much ammunition”. Thus, all supplies of ammunition in citizens’ hands, large or small, would be immunized from “gun control”.[3]

Footnotes:

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 1109.

2.) Id. page 1110 (bold face type supplied).

3.) Id. pages 1109-1111.

In the pre-constitutional era, “gun control” (had such a term then been current at all) would have meant that the people, through their government, required and enabled themselves to control—by means of their very own personal possession—the firearms and ammunition sufficient not only to repel the depredations of hostile Indians and criminals, and attacks by the armies and navies of enemy nations, but also to array the citizenry as a serious deterrent against, if not a match for, any forces their own rogue public officials might deploy against them in furtherance of usurpation, tyranny, or other forms of oppression.[10]

Every individual possibly eligible for service in “the Militia of the several States” must enjoy untrammeled access to a free market in which to obtain whatever firearms, ammunition, and accoutrements may to any degree prove useful for such service.[11]

1.) Compare U.S. Const. art. I, § 8, cl. 1 with art. I, § 10, cl. 2.

2.) Compare U.S. Const. art. I, § 8, cl. 5 with art. I, § 10, cl. 1.

3.) Compare U.S. Const. art. I, § 8, cls. 12 and 13 with art. I, § 10, cl. 3.

4.) Compare U.S. Const. art. II, § 2, cl. 2 with art. I, § 10, cls. 1 and 3.

5.) U.S. Const. art. I, § 8, cl. 1 (emphasis supplied).

6.) U.S. Const. art. I, § 8, cl. 2 (emphasis supplied).

7.) U.S. Const. art. I, § 8, cl. 4 (emphasis supplied).

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 47.

9.) U.S. Const. art. I, § 8, cls. 15 and 16.

10.) Id. at 8, page 137.

11.) Id. page 1113.

About the Constitutional Militia

Constitutional Role of the Militia

Meaning of Words in the Constitution

Statements From the Founders

Bill of Rights

Contemporary Dictionaries

Militia: Near Universal Membership

2nd Amendment: Community Self-Defense

National Guard: Not a Militia

Militia: Permanent Constitutional Institutions