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A SERIOUS QUESTION FOR THE NRA

 

By Dr. Edwin Vieira, Jr., Ph.D., J.D.
June 1, 2016

Please note the United States Code Citation Changes affecting this article.

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            As regular readers of my commentaries know, from time to time I have written about the National Rifle Association‘s curious misreading of the Second Amendment—to wit, that the Amendment‘s first thirteen words (“[a] well regulated Militia, being necessary to the security of a free State”) have no significance with respect to the interpretation and application of the Amendment‘s last fourteen words (“the right of the people to keep and bear Arms, shall not be infringed”). According to the NRA, the Second Amendment secures “the individual right to keep and bear arms”, to which “[a] well regulated Militia” is irrelevant.

I must describe the NRA‘s fixation as a most curious misreading of the Second Amendment because, if “the individual right to keep and bear arms” is irrelevant to “[a] well regulated Militia”, then by dint of the NRA‘s own linguistic logic “the individual right to keep and bear arms” must be equally irrelevant to “the security of a free State” to which the Amendment declares that such a Militia is “necessary”. If so, then the NRA‘s reading of the Amendment is at odds with its contention that “the individual right to keep and bear arms” guarantees Americans the wherewithal to preserve “the Blessings of Liberty” promised by the Constitution in its Preamble. For, if “the individual right to keep and bear arms” is as irrelevant to “the security of a free State” as it supposedly is to “[a] well regulated Militia”, it passes understanding that it could guarantee any aspect of “a free State”, including especially the “Liberty” of that State‘s citizens.

This apparent conundrum is, of course, not the product of the Constitution. For, according to the most basic rules of constitutional interpretation, the NRA‘s construction of the Second Amendment is impossible. In general, “[i]t cannot be presumed, that any clause in the constitution is intended to be without effect”. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). And “[i]n expounding the Constitution * * * , every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added”. Holmes v. Jennison, 39 U.S. (14 Peters) 550, 570-571 (1840). Moreover, with respect in particular to the clause “[a] well regulated Militia, being necessary to the security of a free State”, “[i]t cannot be supposed that the framers of the Constitution did not use this expression with deliberation or failed to appreciate its plain significance”. Wright v. United States, 302 U.S. 583, 587-588 (1938). See also, e.g., Myers v. United States, 272 U.S. 52, 151-152 (1926); Knowlton v. Moore, 178 U.S. 41, 87 (1900); Blake v. McClung, 172 U.S. 239, 260-261 (1898); Reid v. Covert, 354 U.S. 1, 44 (1957) (opinion of Frankfurter, J.).

My emphasis on this peculiar situation is not simply a matter of constitutional pedantry devoid of practical consequences. For, by widely disseminating its misreading of the Second Amendment among the general public, the NRA lends credibility to a most dangerous misconception—to wit, that Americans can secure for themselves “the Blessings of Liberty” by purely individual actions alone, when every page in the book of American political and legal theory and history teaches that popular sovereignty, popular self-government, and the “Blessings of Liberty” that go with them necessarily entail, and can be achieved and maintained only through, collective endeavors by We the People as a whole. No one who studies America‘s Colonial Charters, the Declaration of Independence, the constitutions of the independent States, the Articles of Confederation, the original Constitution, and even the Second Amendment can come to any other conclusion.

I have tried, on more than one occasion, to call this matter to the attention of the NRA, for the purpose of encouraging the organization to reassess its position and become a proponent of revitalization of “the Militia of the several States”, as the only sure and certain means to provide for “the security of a free State” throughout this country. To date, however, these efforts have proven unsuccessful.

Perhaps my failures are exclusively my fault. But, then again, perhaps not. Inasmuch as my own estimation of cause and effect might be considered biased, I shall put it to my readers to judge for themselves. Below, I reproduce (with some minor redactions) a letter which I wrote several months ago to certain members of the NRA‘s Board of Directors, explaining why the NRA should promote revitalization of the Militia, and soliciting their support to that end. To date, I have received not a single response. The question which perplexes me is, “Why not?” Is revitalization of the Militia a matter which is not to be taken seriously? Or am I, personally, not to be taken seriously? Or is the NRA‘s championship of the Second Amendment not to be taken seriously?

It may be that some of the readers of this commentary will conclude that what I have recommended in the letter reproduced below makes sense, and that the NRA should pay some little attention to it. If so, they might consider contacting the NRA, and asking “Why not?” At some point, an answer needs to be had.

[LETTER TO NRA DIRECTORS]

25 January 2016

National Rifle Association Directors * * *

c/o NRA Office of the Secretary

11250 Waples Mill Road

Fairfax, Virginia 22030

Re: The NRA‘s necessary rôle in revitalization of “the Militia of the several States”

Dear NRA Directors * * * :

As a long-time member of the National Rifle Association * * * , I write in order to urge each of you, as members of the NRA‘s Board of Directors, to bring to the Board‘s attention the necessity for the NRA to recognize the urgency of the declaration in the Second Amendment that “[a] well regulated Militia” is “necessary to the security of a free State” at this critical juncture in the course of human events, and for that reason to become the leading participant in a nationwide movement to revitalize what the Constitution denotes as “the Militia of the several States”. I believe that it is particularly fitting for, as well as incumbent upon, me to make this request, as I have written several books on this subject—including Constitutional “Homeland Security”, Volume One, The Nation in Arms (2007); Constitutional “Homeland Security”, Volume Two, The Sword and Sovereignty (2012); Constitutional “Homeland Security”, Volume Three, By Tyranny Out of Necessity: The Bastardy of “Martial Law” (2014 and 2016); Three Rights (2013); and Thirteen Words (2013)—as well as numerous commentaries originally published at the website <www.newswithviews.com> since 2005 and now widely dispersed across the internet.

I have undertaken these efforts neither for my own entertainment nor with any realistic hope of financial gain from a lucrative publishing enterprise. Instead, my goal has been simply to elucidate the truth of the matter, to educate my fellow countrymen about it, to encourage them to become personally involved in the revitalization of “the Militia of the several States”, and to effect as much political and legislative movement in that direction within the States as possible as soon as possible—or, as I like to put it, immediately, if not sooner. I realize, however, that I cannot accomplish this goal simply by disseminating my work in “the free marketplace of ideas” without a significant measure of assistance from others better situated than I am to reach large numbers of Americans with this message. Therefore, this letter.

A. The revitalization of “the Militia of the several States” is critical for our country‘s survival.

The first thirteen words of the Second Amendment—“[a] well regulated Militia, being necessary to the security of a free State”—constitute more than a merely hortatory pronouncement, hoary with the dust of a bygone era, that today has no practical relevance to the Amendment‘s last fourteen words. Rather, those words constitute: (i) a finding of historical fact—to wit, that Americans secured “a free State” for themselves by virtue of their organization in “well regulated Militia”; (ii) a conclusion of constitutional law—to wit, that such Militia must always exist within every State in the Union, just as Article I, Section 8, Clause 15 and 16 and Article II, Section 2, Clause 1 of the Constitution presume that they will; and (iii) an admonition which the Founders of this country drew from both political theory and their own experiences—to wit, that “a free State” cannot long exist anywhere within this country without “well regulated Militia” everywhere throughout this country.

In the “well regulated” form which the Constitution requires, however, “the Militia of the several States” are nowhere to be found in America today:

The National Guard and the Naval Militia in which some Americans are enrolled are not “militia” of any sort. Rather, they are the “Troops, or Ships of War” which the States may “keep * * * in time of Peace” “with[ ] the Consent of Congress”, pursuant to Article I, Section 10, Clause 3 of the Constitution. This (among other things) explains why they are not based upon near-universal compulsory membership, and why they can be called upon to perform services for the United States beyond the three specified in Article I, Section 8, Clause 15 for which alone Congress may “provide for calling forth the Militia”.

The so-called “unorganized militia” to which most Americans are consigned by statute—in 10 U.S.C. § 311(b)(2) and, for example, Code of Virginia §§ 44-1 and 44-4—is no constitutional Militia, either. For no part of any constitutional Militia can be “unorganized”. Indeed, Article I, Section 8, Clause 16 of the Constitution of the United States empowers Congress “[t]o provide for organizing, arming, and disciplining, the Militia”—not for leaving the Militia “unorganiz[ed]”. And Article I, Section 13 of the Constitution of Virginia defines “a well regulated militia” as being “composed of the body of the people, trained to arms”—which, plainly enough, an “unorganized” Militia can never be, unless “the people” can somehow be “trained to arms” without being organized to that end.

Finally, the various “private militia” which have sprung up across this country (including * * * in Virginia) in recent years are not constitutional Militia, because they are not “regulated” at all pursuant to statute, and therefore cannot claim (let alone assert) any specifically governmental authority. Under the First Amendment, they may adopt the title “militia” with as much freedom as they may style themselves “the Palace Guard of the Grand Duchess of Gerolstein”. But in either case the self-description is fanciful; and as far as the description “militia” is concerned, it is feckless for the purpose for which they put it forth.

This is a truly impossible situation for a country which, in its fundamental law, holds up “[a] well regulated Militia” as “being necessary to the security of a free State”. The notion that “private militia” could provide “the security of a free State” is delusive, because “private militia” can exist only in, and themselves require protection by, “a free State”. The notion that the States‘ “Troops, or Ships of War” could provide “the security of a free State” is dangerous, because “a free State” must always closely control a “standing army”, which it can hardly expect to do if “the standing army” is the sole source of its “security”. And the notion that an “unorganized militia” could provide “the security of a free State” is disastrous, because an “unorganized militia” is effectively not in existence at all, and therefore cannot possibly supply what is “necessary” for anyone‘s “security”. So, confronted by numerous dire threats, from international “terrorism” to domestic economic collapse, our country risks not simply a nationwide crisis, but even a national débâcle, should this situation fail to be corrected immediately, if not sooner.

B. For this country to survive in its traditional form, Americans must revitalize their Militia, because “well regulated Militia” are the “necessary”—indeed, the natural, the inevitable, and the indispensable—institutions through which the Power of the Sword is organized and employed for “the security of a free State”.

In any truly “free State”—that is, in any polity in which the people have absorbed the political principles of popular sovereignty, and therefore desire and strive to govern themselves—the people will instinctually, intuitively, and eventually intellectually recognize the importance of the Militia to that end. If incompetent or disloyal political leaders fail, neglect, or refuse to provide a program for establishment of the Militia according to law, patriots will undertake to make up for that deficiency on their own.

Unfortunately, just because the Militia are inevitable in principle does not guarantee that their advent will be timely in practice. Patriotic Americans may finally attempt to revitalize the Militia only when their efforts prove to be too little and too late. After all (as I can testify from personal experience), in the contemporary United States the few private individuals who and ad hoc groups which openly favor revitalization of the Militia along constitutional lines lack the numbers, the influence among the general public, and especially the financial wherewithal to hope to be successful in the very near term in even a single State.

Nevertheless, reasons to be optimistic exist. One of them is that, just as this country is being confronted by ever-increasing dangers to its “security” as “a free State”, certain NRA programs are beginning to take on the character of proper training for the Militia. In general, I could list all of the basic courses in which I participate as a certified NRA firearms instructor. More specifically, I could refer to such newer courses as the “Survival Class”, the “Tactical Carbine Class”, and the “Long Range School”. [See “NRA Outdoors Offers Various Classes for 2016”, American Rifleman (January 2016), at 102.] As more and more of such courses are offered, a rough program of basic Militia training will take shape “by accretion”, as it were, of one small piece of the requisite structure at a time. The NRA‘s development of these courses may not be—most likely is not—intentionally motivated by a concern for revitalizing the Militia. But that result will not be inadvertent, accidental, or merely coincidental, either. For any organization which seriously defends “the right of the people to keep and bear Arms” will more or less automatically promote some of the training which can prepare “the people” for participation in “well regulated Militia”.

The problem is that the NRA is advancing only by fits and starts, and only for a relatively small number of Americans, the true and full agenda of the Second Amendment (as well as of the Militia Clauses of the original Constitution)—namely, the exercise of “the right of the people to keep and bear Arms” for the ultimate purpose of their service, both as their right and as their duty, in “well regulated Militia”. There appears to be no conscious appreciation among either the organization‘s leaders or its members of “the big constitutional picture”, in terms of either what the NRA is actually accomplishing (albeit perhaps unconsciously), or what more needs to be done, with respect to the prospect of revitalizing the Militia. Indeed, as far as I have been able to determine, nothing in the NRA‘s current literature links any of its programs in any manner and in the least degree to “well regulated Militia”, even in principle let alone in practice. If the public perception naturally to be drawn from this observation is correct, as far as the NRA is concerned the Second Amendment contains only fourteen words, not twenty-seven.

This is doubly unfortunate. First, as every student of the subject knows, “‘[i]n expounding the Constitution of the United States, every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added. * * * Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood‘”. Williams v. United States, 289 U.S. 553, 572-573 (1933). So, as a result of its truncated emphasis on the last fourteen words of the Second Amendment, the NRA forfeits credibility in the all-important “marketplace of ideas”. As Richard Weaver once famously observed, “ideas have consequences”. And, as should be obvious to all, incorrect ideas about critical matters all too often beget catastrophes. Second, because of its unwarrantable bisection of the Amendment, the NRA‘s programs are advancing too slowly, in comparison to the acceleration of the dangers now impinging upon this country, to be expected to thwart or even significantly militate against those dangers. The NRA should be aiming at the election of public officials who are dedicated to promotion of “the security of a free State” through revitalization of the Militia, and through such officials at the passage of legislation for that purpose in the several States. Absent such action, the NRA will remain far less effective than it otherwise could and should be, not only to its own detriment but also (and more importantly) to the detriment of this country as a whole.

C. What, then, should be done? Simply put, the NRA must assume the constitutionally proper leadership rôle with respect to the Second Amendment.

1. To accomplish this, the organization‘s hierarchy—primarily its Board of Directors—must initially recognize that the NRA is in an anomalous, but also a peculiarly advantageous, position.

The NRA‘s position is anomalous, because: First, it is merely a private group. Second, there would be no need for the NRA at all, had “the Militia of the several States” been in existence to their full constitutional extent since (say) the end of World War II. Third, and of most consequence, the NRA‘s interpretation of the Second Amendment is of limited accuracy, relevance, and practicality. The so-called “individual right” theory of the Amendment is only marginally correct. “[T]he security of a free State” as a whole (as opposed to the security of individuals as such) cannot be had without a thoroughgoing organization of the populace in institutions which exercise governmental authority. “[T]he right of the people to keep and bear Arms” narrowly defined for the purpose of enabling isolated individuals to defend themselves against common criminals will prove of little use against any large-scale tyranny worthy of the name, let alone against natural disasters, epidemics or pandemics, catastrophic industrial accidents, failures of the systems necessary to maintain the operations of a technologically advanced society (such as a breakdown of the national electrical grid), an economic collapse engendered through a failure of the Federal Reserve System, or any other catastrophic eventualities in response to which properly organized, armed, disciplined, and trained Militia could and should be deployed in every State and Locality throughout this country.

The NRA‘s position is advantageous, though, because: First, no constitutionally adequate Militia exists anywhere within the United States today—so the ground is clear for up-to-date and comprehensive revitalization everywhere. Second, Article II of the NRA‘s own Bylaws states (in pertinent part) that

[t]he purposes and objective of the National Rifle Association * * * are: 1. To protect and defend the Constitution of the United States, especially with respect to the inalienable right of the individual American citizen guaranteed by such Constitution to acquire, possess, collect, exhibit, transport, carry, transfer ownership of, and enjoy the right to use arms, in order that the people may always be in a position to exercise their legitimate individual rights of self defense and defense of family, person, and property, as well as to serve in the appropriate militia for the common defense of the Republic and the individual liberty of its citizens; 2. To promote public safety, law and order, and the national defense; 3. To train members of law enforcement agencies, the armed forces, the militia, and people of good repute in marksmanship and in the safe handling and efficient use of small arms[.]

Observe that points 1 and 3 specifically refer to the Militia. And point 2 refers to “public safety, law and order, and the national defense”, which are the explicit constitutional responsibilities of the Militia (and only the Militia) under Article I, Section 8, Clause 15 of the Constitution, which empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. Thus, according to this bylaw, the NRA should be an ardent advocate, assistant, and even architect of “the Militia of the several States”, so as fully (in the bylaw‘s own words) “[t]o protect and defend the Constitution of the United States”, in keeping specifically with the declaration of the Second Amendment that “[a] well regulated Militia” is “necessary to the security of a free State”. Third, starting with the National Board for the Promotion of Rifle Practice (1901) and the Civilian Marksmanship Program (1903), the NRA has had a long and successful relationship with the General Government—proving that the NRA has served, and can continue to serve, some important governmental purposes notwithstanding that it is a private group. Compare McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 407-423 (1819). Moreover, relationships of this kind can be extended to the States as well—and should be, inasmuch as the Militia are “the Militia of the several States” (not “of the United States”). Fourth, throughout the process of revitalizing the Militia the NRA will be ready and able to provide public officials and the nascent Militia with expert guidance and assistance available from no other private organization (and, from what I have been able to glean from the relevant literature, from no governmental organization anywhere within the federal system, either).

2. In addition to the foregoing, the Board should recognize that, if the NRA marshals the moral integrity, historical hindsight, practical political foresight, and legal insight of its officers, members, and many friends amongst the general public, it can assume the leadership of a national political campaign to revitalize the Militia, and by doing so can contribute decisively to the salvation of this country as “a free State”. Indeed, the NRA is probably the only organization even arguably capable of doing so at the present time.

None of us is unaware that the NRA has been criticized as being too soft, too pliable, too apt to play politics, and generally too willing to compromise with respect to “gun control”. Even if such detractions are to some extent justifiable, America does not enjoy the luxury of unlimited time during which “to reinvent the wheel” where revitalization of the Militia is concerned. In my book Constitutional “Homeland Security”, Volume One, The Nation in Arms (2007), I proposed that patriotic citizens should form numerous local associations, not affiliated with or dependent upon any national organization, for that purpose. Yet, almost a decade later, vanishingly few people have responded to my recommendations; and the growing-season still left to this country may not prove long enough to plant and harvest such a crop from seed. Anticipating that this may prove to be the case, we need to utilize whatever resources are already at hand, and the performance of which may be capable of improvement. For better or worse, arguably that boils down to a single organization: the NRA.

The NRA disposes of the appropriate historical pedigree, the structure, the staff, the programs, and the experience to undertake the task. Based upon its successes in electoral politics, its network of effective lobbyists, its ability to access and influence even the generally antagonistic mass media, its large number of members, its highly qualified instructors, its financial resources, and its good repute among most sensible Americans, the NRA can form the center of a mass movement aimed at a goal much more important than securing the so-called “individual right to keep and bear arms” on which it focuses its attention today. For no merely “individual right to keep and bear arms”, exercised by individuals as individuals in mutual isolation, can defend Americans from tyranny, let alone protect it from many other dangers far more likely than full-blown tyranny to strike this country in the short term. Only revitalized Militia—composed, to be sure, of individuals, but of individuals acting in unison, and imbued with governmental authority of the highest order—can provide that protection across the board.

That the NRA has survived, and even grown significantly in strength and stature over the past several years, in the face of relentless and strident attacks from “gun-control” fanatics, their political allies, their transmission belts in the mass media, and hordes of useful idiots among the intelligentsia, proves that the organization cannot easily be swayed from its chosen course, let alone silenced. Such attacks, of course, would become ever more desperate and savage if the NRA should begin to promote revitalization the Militia. For the “gun-control” fanatics understand perfectly well that what is ultimately at stake is not a merely “individual right to keep and bear arms”—the existence of which even today only marginally inconveniences the political dominance of the factions, special interests, and other dark forces on behalf of which those fanatics bluster—but instead the amalgamation of all individuals capable of exercising such basically anarchic “individual rights” into fully organized “well regulated Militia” authorized to execute the laws of the Union and of their own States, the appearance of which would change the balance of political power in this country drastically, decisively, and permanently in favor of We the People. But the more extreme the opposition which “gun-control” fanatics mounted, the more conclusive would be the proof of the value of revitalizing the Militia.

D. Finally, is all of this too much to ask of the NRA?

Indeed, can it be asked? Does the organization have the sense and the courage to undertake such a daunting task? I believe so. I believe that the NRA is capable of understanding why, in the final analysis, “the right of the people to keep and bear Arms” can be guaranteed only if “the people” are organized in “well regulated Militia”. I believe that the NRA can commit itself to the defense of “a free State” in the one and only manner in which the Constitution tells us “a free State” must be defended. And if cold ratiocination will not serve as the decisive motivating factor, then fear will. It is said that nothing focuses a man‘s mind more than his impending hanging. Surely the same must be true for a country faced with its own imminent destruction.

Yet, for anything worthwhile to happen, someone capable of exerting influence within the NRA needs to convince the organizational hierarchy; then the hierarchy needs to convince the organization‘s own members; then the organization and its members and other adherents need to convince the sensible portion of the remaining population. The NRA‘s Directors—such as yourselves—are in the best position, and bear the greatest responsibility, to begin this process:

You can raise the question of why, when the Second Amendment contains twenty-seven words, the NRA focuses on only the last fourteen of them.

You can raise the question of how the NRA can claim to be a true defender of “a free State” when it neglects what the Second Amendment itself declares in its first thirteen words to be “necessary to the security of a free State”. And

You can demand answers to these questions in the most important of organizational fora—from your own fellow Directors and the rest of the NRA‘s hierarchy in its headquarters.

If not you, then who? If not now, then when? When it is too late?

I enclose for your perusal a copy of my book The Sword and Sovereignty. This, I admit, is something of a formidable work which no one could reasonably be expected to read, let alone to digest, at a single sitting. Having it readily at hand will, however, provide you with some little evidence of the seriousness of the historical and constitutional arguments in favor of revitalization of the Militia. In addition, I should be willing to discuss this matter with you, either individually or in a group, at your convenience—whether to make a fully structured presentation on the subject or just to answer your questions informally.

Thanking you for your attention to this matter, I remain

Your servant,

Dr. Edwin Vieira, Jr.

EV:ev

enclosure of CD-ROM The Sword and Sovereignty

Copyright 2016 by Edwin Vieira, Jr.

All Rights Reserved.


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" ... and Constitutional "Homeland Security," Volume One, The Nation in Arms...

He can be reached at his new address:
52 Stonegate Court
Front Royal, VA 22630.

E-Mail: Not available


 

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One assaulted by such rosy descriptions and predictions would do well, though, to recall the warning voiced by the Trojan priest Laocoon, urging his imprudent countrymen not to haul the Wooden Horse within the walls of Troy: “Quidquid id est, timeo Danaos et dona ferentes”—“whatever it is, I fear the Greeks, even bearing gifts”. I, for one, sense that Mr. Trump understands this, even if perhaps he has never read Virgil’s Aeneid.