YOU DOING YOUR CONSTITUTIONAL DUTY FOR "HOMELAND SECURITY"?
Edwin Vieira, Jr., Ph.D., J.D.
Please note the United States Code Citation Changes affecting this article.
Why are the careerist politicians in Washington, D.C., and in State capitals throughout this country studiously ignoring "the Militia of the several States" as the linchpin--or even any part--of a National program of "homeland security"? Because, although "the Militia of the several States" are constitutionally empowered and mandated to provide "homeland security", in the long run their revitalization would threaten the Establishment's hegemony. And that hegemony, in the final analysis, is what the Establishment really means by "homeland security". To understand this requires recourse to American history.
In every Colony and independent State from the mid-1600s to the late 1700s immediately prior to ratification of the Constitution, the Militia consisted of every able-bodied male, typically from 16 to 50 or 60 years of age, each of whom was required by law to keep in his personal possession at home a firearm suitable for military use (for most of them a musket or rifle, for some a brace of pistols), together with a supply of ammunition (assembled cartridges, black powder, and lead shot); a bayonet, tomahawk, or sword; and other accoutrements necessary to outfit an infantry soldier or cavalry trooper.
Throughout the original thirteen Colonies and States, the laws required each Militiaman to buy his own arms and ammunition in the free market--thus implicitly guaranteeing the existence and operation of such a market. If he were under 21 years of age, or an apprentice or servant, though, a Militiaman could require his parents or employer to supply him with a suitable firearm and ammunition. If he were one of the working poor, he might receive assistance from his local government in obtaining a job through which to earn the money to buy them. And local governments, or very often the Militia, provided publicly owned arms to those individuals too poor to purchase them on their own account. That is, We the People always required themselves to provide themselves with firearms, either directly as individuals, or indirectly through the Militia in which they served or the public officials whom they elected.
Moreover, the Militia statutes of that era generally protected every Militiaman's personal firearms from encumbrance or seizure for the payment of his debts--and in many instances of his taxes, too.
If not explicitly exempted by statute because he held some important public office or practiced some essential profession or trade (such as legislators, physicians, millers, ferrymen, or ministers of religion), every Militiaman was required to bear his firearm and ammunition into the field on a regular basis in order to train in organized formations so as to become proficient with that firearm according to the military tactics of the day. And almost all Militiamen--including even most of those ordinarily exempted, as well as many normally excused because of old age or disability--were subject to duty in cases of "alarm" (such as invasion or insurrection), where the security of the Colony or State was in immediate and grave peril. In addition, many of those technically exempted nevertheless served the Militia, such as public officials (who were often high-ranking Militia officers), physicians (who staffed medical units), and conscientious objectors (who performed not only non-military duties but also the dangerous functions of scouts and spies).
Typically, too, those not exempted were required by law themselves to serve in, or to provide able-bodied substitutes for, the regular "watch" (by night), "ward" (by day), and "patrols" of plantations (in the South); and to be subject to "drafts" from the Militia for actual service in the field in times of war.
All of these requirements the Militia statutes enforced with monetary fines levied on defaulters' property, and imprisonment imposed on the defaulters themselves. The Militia were anything but voluntary organizations, their membership anything but limited, the duties they imposed anything but avoidable, and the public services they performed anything but dispensable.
So, in "the Militia of the several States" prior to 1787,
Being the whole community in arms, the Militia of every Colony and independent State constituted the best security that could possibly be devised for what the Second Amendment calls "a free State"--not only against invasion, insurrection, rebellion, and widespread violations of the laws, but also against those especially dangerous violations of the laws by erstwhile public officials known as "usurpation" and "tyranny".
All this is no merely quaint story-telling about men attired in knee-britches and three-cornered hats, or the anachronistic and academic stuff of Colonial re-enactors and museums at Lexington and Concord. This is what "the Militia of the several States" actually were, codified in every relevant statute of every Colony and independent State throughout a period of almost 150 years prior to ratification of the Constitution. And therefore this is what "the Militia of the several States" still are, because that term incorporated in the Constitution must be interpreted in light of its historical antecedents as known to the Founding Fathers, and continue to be given the selfsame construction until the Constitution is amended (which, with the assistance of Providence, in this particular it never will be). See Eisner v. Macomber, 252 U.S. 189, 206 (1920). The only possible difference to be countenanced today actually amounts to an expansion: Now, with the legal emancipation of women, "the Militia of the several States" arguably includes all able-bodied females, who might be called to serve in some capacities in the most critical, last-ditch situations of State and National defense, freeing men for more arduous duties.
So, constitutionally YOU very likely--indeed, almost surely--are a member of "the Militia of the several States" in the State in which you live. And, if so, the Constitution imposes a duty on YOU to keep and bear arms in the Militia for the defense of your State and Nation, because that is the meaning of the Militia: the people in arms, and therefore the people with arms. And, most importantly, their own arms: their own private property in their own personal possession.
Moreover, because the duty to keep and bear arms is of constitutional stature, each individual enjoys an absolute constitutional right as against every level, department, or branch of government--National, State, and local--to fulfill that duty. Inasmuch as the Constitution requires all of We the People eligible for the Militia to possess their own private arms in their capacity as a governmental institution, then on no account, for no reason, and by the application of no power can any level of government disarm any of them. Indeed, to argue that any other branch of government may disarm the one branch of government that the Constitution specifically requires to be armed is so illogical as to verge on insanity.
Which, of course, is why the Second Amendment speaks specifically of "the right of the people to keep and bear Arms", not vaguely of "a" right or "some" right. "[T]he right", preexisting the Constitution, with which every American of that era was perfectly familiar, and which most of them personally exercised. So, too, the Second Amendment links "the right * * * to keep and bear arms" with "[a] well regulated Militia", because the right to keep and bear arms is inextricably linked to the duty to keep and bear arms, the former being necessary for fulfillment of the latter. "A well regulated" Militia is what every Colonial and State statute mandated for almost 150 years prior to ratification of the Constitution: everyone armed with his own personal firearm and ammunition (unless too poor to buy them for himself, in which case the Militia or other public officials were required to provide them at public expense). "[T]he security of a free State" is an armed people--and therefore "a free State" is one in which everyone possesses his own firearms, knows why he is armed, opposes every attempt to disarm him, and with his arms and training fulfills his duties to provide "security" in just proportion with everyone else.
Now, the Constitution delegates to Congress the power "[t]o provide for organizing, arming, and disciplining, the Militia". Article I, Section 8, Clause 16. And with such a power comes a duty to exercise it, whenever necessary and proper. Compare United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), with the Preamble ("provide for the common defence"); Article I, Section 8, Clause 18; and Article VI, Clause 3 ("Oath or Affirmation, to support this Constitution"). True, Congress does make some provision for voluntary training of common Americans in marksmanship. See Title 10, United States Code, Sections 4307 to 4313. But has Congress required YOU to obtain, or provided YOU with, a firearm and ammunition; or assigned, or even offered, YOU any duties in some program of "homeland security"? Not unless you have happened voluntarily to join the National Guard or the Naval Militia, which Congress wrongly classifies as "the organized militia". Title 10, United States Code, Section 311(b)(1). (I say "wrongly", because the National Guard and Naval Militia were not in existence during the pre-constitutional period; and much of their structures, duties, and operations bears no connection to, or may even contradict, the characteristics of the constitutional "Militia of the several States".) Even then, as a National Guardsman you would not keep your assigned firearm in your personal possession at home--as necessarily would a member of "the Militia of the several States" (and as do the Swiss, a people with a militia history longer than that of Americans).
Worse yet, what if you have been relegated to "the unorganized militia", which Congress defines as every able-bodied male "at least 17 * * * and under 45 years of age" who is not a member of the National Guard or the Naval Militia--and which by default includes as well every male from 16 to 17 and over 45 years of age who is constitutionally a member of "the Militia of the several States", but is ignored entirely by the modern statute? See Title 10, United States Code, Section 311(a) and 311(b)(2). If you are lumped into this "unorganized militia" you are just that: unorganized, unarmed, undisciplined, untrained, unsupplied, undeployed, and unwanted as a matter of statute--thoroughly disregarded by Congress, wholly disconnected from your necessary constitutional rights and duties, dispensed with, and withal dispersed within an impotent, disoriented rabble.
What about your State? If Congress fails or refuses to perform its constitutional duty to "arm[ ]" "the Militia of the several States", as it surely has with respect to what it calls the "unorganized militia", then each State, to fulfill her own constitutional responsibility, must exercise her reserved power to arm and train her own citizens for "homeland security". See Houston v. Moore, 18 U.S. (5 Wheaton) 1 (1820). But, other than maintaining their State Guards (which as sub-units of the National Guard are not true State "Militia"), most States have done next to nothing on this score, either. Here (as in so many other instances), States' rights and States' duties have decayed through States' ignorance and States' apathy into States' wrongs.
To be sure, one might say that Congress and the States have by default left the vast majority of Americans in the "unorganized militia" to arm and accoutre themselves by the method used most frequently in the pre-constitutional Colonial and State Militia statutes: self-help through resort to the free market. After all, "[t]o provide for * * * arming" does not necessarily require actual arming by the government itself from public arsenals. (Indeed, this is probably the least desirable way for Congress and the States to fulfill their responsibilities on that score.) Rather, Congress and the States can "provide for * * * arming" by relying on individuals to arm themselves through private commerce. But, if the free market is the means on which Congress and the States have settled for these "unorganized" Americans to fulfill their constitutional duties to be armed in "the Militia of the several States", why do Congress and the States not require common Americans to purchase, possess, and train with their personal firearms, as did every pre-constitutional Militia statute? And why do Congress and the States not require properly armed and instructed Americans to participate in some even minimal program of "homeland security", as every pre-constitutional Militia statute teaches that every true constitutional Militiaman should? Indeed, how could atomized Americans effectively arm and train themselves for any State or National program--which, for effectiveness, would necessarily require a high degree of cooperation among participants?
And why, instead of organizing, disciplining, and especially arming and training We the People, do politicians, legislators, judges, trial lawyers, the intelligentsiia, and "the beautiful people" of New York, Hollywood, and every intellectual fever-swamp and moral cesspool in between try their damnedest to disarm common Americans at every turn? To outlaw every type of firearm and ammunition they can, but especially those that are particularly well suited for Militia purposes, such as so-called "assault weapons" not too long ago, or .50 BMG caliber rifles today? To impose every possible legal restriction on the possession and use of such firearms and ammunition as the Establishment still suffers common Americans to retain? To hamstring the private firearms industry with bureaucratic regulations and frivolous (but horrendously expensive) lawsuits? And to treat "homeland security" and "the Militia of the several States" as totally disconnected? For two fundamental reasons:
First, if "homeland security" were based to any significant degree on "the Militia of the several States", We the People would influence the course of "homeland security" to a very significant degree.
Revitalized Militia would mobilize millions upon millions of individuals for hundreds of different programs, and bring with them the innovation and experimentation that emanate from minds not mired in the ruts of rigid bureaucratic centralism, and not incapacited by some statist ideology from imagining solutions to the conundrums of "homeland security" that are fully compatible with human liberty. No longer would "homeland security" depend for direction on exclusive cliques of professional "security" and "intelligence" operatives, including former high-ranking KGB and Stasi agents. (In fairness to such people, though, they surely do know a great deal about terrorism. Yet their expertise lies more in imposing terrorism than in exposing and opposing it--which perhaps suggests why they are on the Department of Homeland Security's payroll.) Rather than suffering from a national police state composed of elitists and careerists, with its tentacles slithering into every State and local police department, America would enjoy security through thoroughly local responsibility and control--because nothing could be done from above that would not have to be approved from below, what with tens of millions of organized Militiamen arrayed against orders of magnitude fewer operatives in the professional security agencies and police forces.
With "homeland security" properly focused in the States and localities, rather than centralized in Washington, D.C., America would return to the Founding Fathers' federalism, rather than continue to expand Franklin Roosevelt's federalization. In the most practical possible way, We the People would finally realize their own personal responsibility to maintain "a Republican Form of Government"--that, in the final analysis, "homeland security" means and demands political control by We the People, which We the People must provide directly.
Knowing their true constitutional status, We the People would recognize the source of their authority; from their authority, the source of their power; and from their power, the source of their security. That, in the final analysis, all political power--for both good and evil--comes out of the barrel of a gun was not the discovery of a Chinese Communist. See Quotations from Chairman Mao Tse-tung (1966), page 61. As the Second Amendment observed much earlier, in aid of a far worthier cause, "[a] well regulated Militia" is "necessary to the security of a free State". The same insight from two such radically opposed sources emphasizes that guns do not oppress people; some people oppress other people--and generally accomplish that end by depriving the oppressed of the means of opposing their oppressors. Thus, in the hands of the oppressed, firearms are the indispensable instruments of freedom.
So, once "the Militia of the several States" were revitalized for the purpose of providing true "homeland security", the genie of true Republicanism would be out of the bottle. And could the Establishment ever force it back in, after screaming so loudly and for so long about how absolutely vital "homeland security" is? At that point, the Establishment would be exposed as the paper tiger it is.
Second, "homeland security" localized in "the Militia of the several States" is the most effective way to protect Americans against the real threat to their liberties. America will never lose her freedoms because of attacks from some hodge-podge of foreign "terrorists". The actual, acute danger lies in the organized efforts of home-grown subversives, boring from within the political process, the bureaucracies, the courts, the media, academia, the cultural sewers that spew out "entertainment", and all the other critical points of entry into the machinery of mass psychological manipulation, then political power, then usurpation, then tyranny. And which subversives are now using a false concern for "homeland security" as their excuse to amass for themselves ever-increasing, ever-more-abusive powers in its name.
For the most pertinent example, no foreign "terrorists" enjoy either the power or the opportunity to disarm and render helpless common Americans by imposing Stalinist "gun control" on this country. But such Senators as Edward ("Chappaquiddick Ted") Kennedy, Charles Schumer, Dianne Feinstein, John Kerry, Hillary Clinton, and the rest of their Bolshevik mob are both positioned and prepared to propose (and, with the assistance of Congressional co-thinkers, fellow travellers, and useful idiots, perhaps even to pass) legislation as draconian as any the Georgian Bandit ever imagined. And they are not alone. No, indeed.
State and local politicians, the media, the organized legal and medical professions, the intelligentsia, the modernist churches and synagogues, and all the Establishment's other mouthpieces, front groups, camp followers, and hangers-on are constantly inveighing about how "guns cause crime", and are therefore bad--except, of course, when wielded by the Armed Forces, the Gestapo-like agencies of the General Government, and the increasingly para-militarized State and local police, in the hands of which firearms of the most savagely lethal varieties are doubleplus good, and would never, ever, be used to further usurpation or tyranny.
Americans are being indoctrinated that their country should be covered from sea to shining sea with "gun-free zones" in which all "civilians" are stripped of the tools most effective for defending themselves--while every miniscule hamlet is to be infested with para-military squads in battle dress, staring down the public with menacing glances and body language, backed up by automatic weapons and armored vehicles (thereby demonstrating the type of "homeland security" the Establishment really believes these places are going to get).
Most ominously, by being relegated to the "unorganized militia" and thus prevented from performing their constitutional duties, average Americans are being demeaned as too unimportant, unqualified, ignorant, irresponsible, and especially politically unreliable to be "call[ed] forth" for the purposes as to which the Constitution explicitly and unqualifiedly requires their services. By being excluded from providing and participating in "homeland security", common Americans are reduced to the subjects, passive recipients, or targets of "homeland security". Each repetition of the term, however, must receive a different emphasis. For it is hardly mere paranoia to suspect that the "homeland security" of which Americans are to be the subjects, passive recipients, or targets will be drastically different from the "homeland security" they would provide for themselves if they had the opportunity--and, indeed, were actually required by law--to do so. Indeed, is not the proof of the pudding being cooked the ingredients the Establishment has carefully excluded from its recipe for "homeland security"?
As merely passive recipients, every American will be exposed to whatever variety of "homeland security" the Establishment--working through Congress, the President, the top brass in the Armed Forces, the intelligence bureaucracies, and sundry State and local police departments following orders from Washington, D.C.--decides to impose. And common Americans had better be prepared to swallow whatever is dished out, even if it stinks of "maximum security". Because the kangaroo courts will surely hold resistance (perhaps even loud remonstrance) not to be "lawful", and therefore will subject obstreperous dissenters to civil or criminal penalties.
If all this is enough to convince you that America desperately needs to revitalize "the Militia of the several States", as the Constitution intends them to function, then steel yourself for a great deal of work, from the ground up, individual by individual, community by community, State by State. Fortunately, the first step is the easiest. Only a single question needs to be answered: Are YOU doing as much as you can to fulfill your own, personal constitutional duty in or for "the Militia of the several States"? Right now?
That is, do YOU possess a firearm and ammunition suitable for the Militia; and, if so, are YOU becoming proficient with them? Have YOU taken a firearms training course from some accredited source? Or are YOU sufficiently self-directed to be preparing yourself? And are YOU studying the problems of "homeland security", and thinking about how common Americans can--and must--solve them? If not, YOU need to begin by obtaining a firearm and learning how to use it (LAWFULLY, of course), as well as by learning as much as you can about "homeland security"--not only what some public officials say that it is, but more importantly what the Constitution teaches that it ought to be, and how to get that job done through public education and legislation in your State. Then convince at least two other people to do the same, and ask each of them to convince two more, and so on. Most importantly, make sure that everyone knows why.
To my readers:
I am now working on a constitutional program of "homeland security" based on "the Militia of the several States". This is probably the most important project on which I have ever embarked. It will also be the most difficult to fund, because next to no one among the powers that be, "conservative" or "liberal", wants to see the Militia revitalized.
Therefore, I appeal to common Americans for whatever financial support they can offer to advance this work. Contributions should be marked "Militia Project", and mailed to me at 13877 Napa Drive, Manassas, Virginia 20112. All contributions will be hypothecated to this work only.
Even if you cannot contribute, please drop me a line to let me know that you believe this effort is important.
you in advance.
© 2005 Edwin Vieira, Jr.
- All Rights Reserved
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Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
His latest book is: "How To Dethrone the Imperial Judiciary"
He can be reached at:
Throughout the original thirteen Colonies and States, the laws required each Militiaman to buy his own arms and ammunition in the free market--thus implicitly guaranteeing the existence and operation of such a market.