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Monday, January 28, 2013

Every Thing Of A Controvertible Nature Was Studiously Avoided

They relate 1st. to private rights...

 - James Madison, notes for introduction of the Bill of Rights (June 8, 1789)


I put that Madison quote up there just to reaffirm the BoR was intended to be an expression of security for individual rights, including that of keeping and bearing arms.  Stipulating that, I move once again back to the Framers' concept of the militia and the cancerous myth that its purpose was to directly fight tyranny.

It is perhaps comforting to think that, if one is armed, one is part of a greater force of patriots dedicated to the principled defense of liberty, even if one merely uses a Bushmaster for shooting paper targets.  Yet the Constitution is not there to support convenient fictions used to justify ownership of cool, deadly toys.

The evolution of militias is actually a pretty fascinating one, with their fortunes and support waxing and waning as societies and governments changed.  Certainly English history informed Colonial perspective, but so did the Founding generation's more immediate experience.

I'll repeat that these folks didn't explicitly intend militias be used to fight a tyrant's standing army, but rather as popular armed defense of their liberty that would obviate, as far as possible, the need for professional soldiery.  Consider that, after demanding liberty or death in 1775, Patrick Henry supported a resolution that began:

Resolved, that a well regulated militia, composed of gentlemen and freemen, is the natural strength and only security of a free government; that such a militia, in this colony, would forever render it unnecessary for the mother country to keep among us, for the purpose of our defence, any standing army of mercenary soldiers, always subversive of the quiet, and dangerous to the liberties of the people, and would alleviate the pretext of taxing us for their support.

Pretty straightforward.  Let us address the inevitable problem of security from foreign invaders and those nasty people whose land we're stealing by arming our citizenry so Parliament and the Crown don't feel obligated to station troops here and raise taxes on us.  Even with the clash of resounding arms ringing in his ears, Henry's motion to raise up a militia didn't call for fighting Red Coats, and his fellow Virginian's resolution to declare independence was still more than a year off.

As yet most Americans simply wanted to exercise their rights as free British subjects, entitled to liberties guaranteed by the English constitution.  One way to do that was by providing for their own collective defense.

Another revolutionary, who agitated more forcefully for armed resistance as his home of Massachusetts was already under the gun, was John Adams.  While he was overseas during the Constitutional Convention, he did know a little bit about constitutions, having written his state's.  As such, he was in good position to write about these things in A Defence of the Constitutions (1787)

[The militia] must all obey the sovereign majority, or divide, and part follow the majority, and part the minority. This last case is civil war; but, until it comes to this, the whole militia may be employed by the majority in any degree of tyranny and oppression over the minority. The constitution furnishes no resource or remedy; nothing affords a chance of relief but rebellion and civil war. If this terminates in favor of the minority, they will tyrannize in their turn, exasperated by revenge, in addition to ambition and avarice; if the majority prevail, their domination becomes more cruel, and soon ends in one despot. It must be made a sacred maxim, that the militia obey the executive power, which represents the whole people in the execution of laws.

To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defence, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed, and commanded by the laws, and ever for the support of the laws.

He really hits on the biggest problem with the insurrectionist theory of militias: if they are given free rein to fight whatever they view as tyranny, then no political compact can ever last for long (just look at threats of rebellion and secession over healthcare, of all things) and we'd be almost constantly devolving into civil war as England had done.  We didn't overthrow British tyranny in favor of anarchy with armed warlords (hello, Somalia).  No, we exercised extra-constitutional rights to sever ties to an unrepresentative regime, then established a popular government whose republican structure and institutional stability would preserve our liberties.  A militia is there to uphold the law, not to rebel against it.

Now it's true that anti-Federalists were concerned about Congress' power to raise armies and control militias, so Federalists like James Madison had to do something to allay their fears so the Constitution would be ratified.  He wrote in Federalist 46 (1788)

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

The bottom line was, yes, standing armies are dangerous and if you're really worried, you should know that our democratic institutions will make their employment for tyranny unlikely, and whatever, everybody will have guns and outnumber professional soldiers, so quit whining and pass this thing.  His argument, though not entirely convincing, won the day.

What's more, he really echoes the 17th century writings Englishman Henry Neville.  He doesn't appear to be a direct influence on the Framers, but he was a follower of Whig writer James Harrington and channeled Machiavelli, both of whom were.  Neville wrote in Plato Redivivus (1681):

[Democracy] is much more powerful than aristocracy; because the latter cannot arm the people, for fear they should seize upon the government; and therefore are fain to make use of none but strangers and mercenaries for soldiers.

Democracies don't fear arming the People because, of course, democracies and their militias ARE the People.  We thus only have to fear ourselves.  Which I guess is kinda the point about reasonable gun safety regulations, innit?

ntodd 

January 28, 2013 in Constitution, Schmonstitution, RKBA | Permalink

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