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Friday, December 28, 2012

About Those Militias

There's a mighty powerful myth that militias were intended to resist government encroachment.  This myth appears to be necessary so some folks can assert that they personally need weapons to be modern Minutemen, Patriots ready to leap to Liberty's defense against Tyranny, so trying to limit their 2nd Amendment rights is inherently fascist and un-American.  Or somesuch.

It seems strange, then, that the US Constitution's text tells a different story:

Article I, Section 8

The Congress shall have Power...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To 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;

Article 2, Section 2

The President shall be Commander in Chief...of the Militia of the several States, when called into the actual Service of the United States;

I guess I'm a little puzzled as to how the militias were supposed to resist the central government when that government was given explicit power over them.  And that their express purpose was not only to repel invaders but execute Federal laws and suppress rebellion.

Certainly, I'll admit that one might--by implication or supposition or appeal to English history--suggest that militias can be used to check tyranny, but only insofar as there were no republican government and there were a standing army to resist.  This was the big motivating fear: that there would exist a separate class of soldiery with no immediate connection to the People.  Whereas a defensive force under civil authority, made from the entire body of the People, would be less inclined toward violating its own rights.

Consider the Declaration of Independence

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.
...
For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States

That concern carried through to 1787.  Here's James Madison in Philadelphia, June 29:

A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home.

Again on August 23:

[A]s the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia. 

And mere days before the Constitution was approved by Convention, this exchange on September 14:

Col: MASON, being sensible that an absolute prohibition of standing armies in time of peace might be unsafe, and wishing at the same time to insert something pointing out and guarding against the danger of them, moved to preface the clause (Art I sect. 8) "To provide for organizing, arming and disciplining the Militia &c" with the words" "And that the liberties of the people may be better secured against the danger of standing armies in time of peace" Mr. RANDOLPH 2ded. the motion

Mr. MADISON was in favor of it. It did not restrain Congress from establishing a military force in time of peace if found necessary; and as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the Constitution, as far as will consist with the essential power of the Govt. on that head.

Notice Madison and Mason did not say the militia is a check on the standing army, but rather that if you have a good militia, you don't need a standing army (or one overly large, at least), which is a distinct threat to liberty.  Mason returned to the theme during Virginia's ratifying convention, as did Patrick Henry (who famously refused to attend Philadelphia), turning it on its head: if Congress has control of the militia, they could decimate it through neglect, creating the need for a standing army.

Other objections to Congressional control of the militia (in addition to its power to raise armies), include Richard Henry Lee's (as the Federal Farmer):

 I see no provision made for calling out the posse commitatusfor executing the laws of the union, but provision is made for congress to call forth the militia for the execution of them—and the militia in general, or any select part of it, may be called out under military officers, instead of the sheriff to enforce an execution of federal laws, in the first instance and thereby introduce an entirely military execution of the laws. I know that powers to raise taxes, to regulate the military strength of the community on some uniform plan, to provide for its defense and internal order, and for duly executing the laws, must be lodged somewhere; but still we ought not so to lodge them, as evidently to give one order of men in the community, undue advantages over others; or commit the many to the mercy, prudence, and moderation of the few.

And the Centinel:

[Congress' power over the militia] will subject the citizens of these states to the most arbitrary military discipline, even death may be inflicted on the disobedient; in the character of militia, you may be dragged from your families and homes to any part of the continent and for any length of time, at the discretion of the future Congress; and as militia you may be made the unwilling instruments of oppression, under the direction of government; there is no exemption upon account of conscientious scruples of bearing arms; no equivalent to be received in lieu of personal services. The militia of Pennsylvania may be marched to Georgia or New-Hampshire however incompatible with their interests or consciences; in short they may be made as meer machines as Prussian soldiers. 

And A Democratic Federalist echoes:

A standing army in the hands of a government placed so independent of the people, may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes; and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.

The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty both public and private; whether of a personal, civil or religious nature.

First, the personal liberty of every man, probably from sixteen to sixty years of age, may be destroyed by the power Congress have in organizing and governing of the militia. As militia they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind; and to death itself, by the sentence of a court martial. To this our young men will be more immediately subjected, as a select militia, composed of them, will best answer the purposes of government.

Secondly, the rights of conscience may be violated, as there is no exemption of those persons who are conscientiously scrupulous of hearing arms. These compose a respectable proportion of the community in the State [Pennsylvania]. This is the more remarkable, because even when the distresses of the late war and the evident disaffection of many citizens of that description inflamed our passions, and when every person who was obliged to risk his own life must have been exasperated against such as on any account kept back from the common danger, yet even then, when outrage and violence might have been expected, the rights of conscience were held sacred.

In the end, the argument was won by the Federalists, though Madison followed through on his promise to introduce various improves in what became known as the Bill of Rights.  As a brief aside, it's interesting that his original version included a conscience clause:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

We've got similar language in Vermont's constitution, as do (or did) several others'.  One might observe that militia service was thus considered mandatory, save for conscientious objectors (still is, in fact).  Indeed, VT citizens are "bound to contribute the member's proportion towards the expense of that protection, and yield personal service, when necessary."  And President Washington, in requesting Congress pass a Militia Act in 1790, observed:

That every man of the proper age [originally 18-60, ultimately 18-45], and ability of body, is firmly bound, by social compact, to perform, personally, his proportion of military duty for the defence of the state.

Later with the passage of the Militia Acts of 1792 (in force until 1903), provisions were set for the President to call up members to whatever constitutional ends required.  He eventually used this power to suppress the Whiskey Rebellion in 1794 (supported by Secretary of War Knox, certified by Associate Justice Wilson, and opposed by Attorney General Randolph):

[W]hereas, by a law of the United States entitled "An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," it is enacted that whenever the laws of the United States shall be opposed or the execution thereof obstructed in any state by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals by that act, the same being notified by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations and to cause the laws to be duly executed.

Over 150 years later, President Eisenhower also called upon the militia to enforce Federal law:

In that city, under the leadership of demagogic extremists, disorderly mobs have deliberately prevented the carrying out of proper orders from a Federal Court. Local authorities have not eliminated that violent opposition and, under the law, I yesterday issued a Proclamation calling upon the mob to disperse.

This morning the mob again gathered in front of the Central High School of Little Rock, obviously for the purpose of again preventing the carrying out of the Court’s order relating to the admission of Negro children to that school.

Whenever normal agencies prove inadequate to the task and it becomes necessary for the Executive Branch of the Federal Government to use its powers and authority to uphold Federal Courts, the President’s responsibility is inescapable. In accordance with that responsibility, I have today issued an Executive Order directing the use of troops under Federal authority to aid in the execution of Federal law at Little Rock, Arkansas. This became necessary when my Proclamation of yesterday was not observed, and the obstruction of justice still continues.

He, of course, did this after the Governor tried to use the Guard to defy Federal law.  So much for the militia being used to fight tyranny in defense of "states' rights".  Nope, it's there to prevent rebellion, which, returning to Madison, could mean "our liberties might be destroyed by domestic faction, and domestic tyranny be established."

So if you're really concerned about tyranny in America, I'd submit you'll be more effective in defending liberty by working to reduce the DoD/MIC than stocking up on weapons based on a misreading of history...

ntodd

December 28, 2012 in Constitution, Schmonstitution, RKBA | Permalink

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