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"THE MILITIA OF THE SEVERAL STATES"
GUARANTEE THE RIGHT TO KEEP AND BEAR ARMS
PART 3 of 6
Dr. Edwin Vieira, Jr., Ph.D., J.D.
September 21, 2005
NewsWithViews.com
Continuing the analysis of the Militia in the Constitution begun in PART ONE and PART TWO of this commentary, we turn to...
3. The roles of the States, Congress, the President, and the Courts with respect to "the Militia of the several States". By incorporating "the Militia of the several States" as they existed and operated prior to its ratification, the Constitution makes several matters perfectly clear:
(a) The States. The Constitution recognizes and permanently includes as part of its federal system only "the Militia of the several States". It neither recognizes nor creates any "Militia of the United States" at all--because no such militia ever existed, and the Founding Fathers evidently desired that no such militia be formed. True, "the Militia of the several States" may be "call[ed] forth" by Congress "to execute the Laws of the Union, suppress Insurrections and repel Invasions"; "such Part of them as may be employed in the Service of the United States" for those purposes may be "govern[ed]" as Congress directs; and "[t]he President shall be Commander in Chief * * * of the Militia of the several States, when called into the actual Service of the United States". Article I, Section 8, Clauses 15 and 16; and Article II, Section 2, Clause 1. But even when temporarily "call[ed] forth", "govern[ed]", and subjected to the President's command "in[ ] the actual Service of the United States", "the Militia of the several States" nevertheless retain their identities and natures as permanent State institutions. The Constitution authorizes neither Congress nor the President to do anything that detracts from, let alone contradicts, these identities and natures.
For that reason, the Constitution authorizes neither Congress nor the President to employ the Militia so as to attack, subvert, or in any other way undermine any State's existence, powers and authority, or her "Republican Form of Government"--or to refuse to employ the Militia to protect those attributes. None of "the Militia of the several States" can be used, actively or passively, against any of "the several States".
Although the Constitution recognizes "the Militia of the several States" as State institutions, the States themselves cannot dispense with the Militia, in whole or material part, because the Constitution presupposes the permanence of the Militia, and the Constitution is "the supreme Law of the Land", which all State officials "shall be bound by Oath or Affirmation, to support". Article VI, Clauses 2 and 3. If the States could dissolve their Militia or allow them to fall into decrepitude, could disregard the Militia's historic principles, could deprive the Militia of their historic purposes and functions, or could deny the Militia the means necessary to perform those purposes and functions, the States could thereby
destroy a component of the Constitution's federal structure no less important than the States themselves;
nullify Congress's power to "call[ ] forth the Militia" for constitutional purposes;
deprive the President of an important means to fulfill his duty to "take Care that the Laws be faithfully executed";
render unfulfillable the duty of the United States to "guarantee to every State in this Union a Republican Form of Government" and to "protect each of them against Invasion; and * * * against domestic Violence"; and even
disarm themselves from "engag[ing] in War" when "actually invaded, or in such imminent Danger as will not admit of delay", because (absent dispensation from Congress) they would have no other armed forces to deploy in their own defense.
See Article I, Section 8, Clause 15; Article II, Section 3; Article IV, Section 4; and Article I, Section 10, Clause 3. These dire consequences disprove even the arguable existence of any license in the States to disestablish their Militia.
Thus, because the Constitution guarantees the permanent existence of "the Militia of the several States" in the plenitude of their historic principles, with all the means necessary to perform their purposes and functions, the States cannot disarm the Militia. For disarmed Militia are no Militia at all. On the other hand, if Congress fails, neglects, refuses, or is simply unable to exercise its own constitutional power and duty "[t]o provide for * * * arming * * * the Militia", or attempts to usurp a power to disarm the Militia (through some National "gun-control" statute), the States must themselves arm their Militia, and take whatever other actions may be necessary to thwart the enforcement of such an unconstitutional statute.
Because the Militia are State institutions, the Constitution reserves to the States an exclusive power and duty to "govern[ ] such Part of them as may [not] be employed in the Service of the United States", and a concurrent power and duty to provide for "organizing, arming, and disciplining" their Militia if Congress fails, neglects, refuses, or is unable to do so, in whole or in part. See Article I, Section 8, Clause 16; Amendment X; Amendment XIV, Section 1; and Houston v. Moore, 18 U.S. (5 Wheaton) 1 (1820). Indeed, if negligent or criminal Congressmen, by shirking their duties or conspiring to defeat the Constitution, could by nonfeasance, misfeasance, or malfeasance render the Militia impotent and thereby put the Nation and States in peril, and the States nevertheless were powerless to correct the situation, "the Militia of the several States" would be nothing but a verbal shadow without substance.
The Constitution reserves to the States "the Authority of training the Militia according to the discipline prescribed by Congress". Article I, Section 8, Clause 16. If Congress fails to "prescribe[ ]" such "discipline", and in all cases where any Congressionally mandated "discipline" does not apply, the States do not need Congress's permission to administer their Militia as they may judge to be necessary and proper. Prior to ratification of the Constitution, the States' powers over their Militia were plenary. The Constitution delegated to Congress certain limited powers with respect to the Militia--which powers, if Congress properly exercises them, are "the supreme Law of the Land" that supersede conflicting State laws. Article VI, Clause 2. Otherwise, the States retain a concurrent power to enact laws to govern their Militia. Amendment X.
The Constitution does provide that "[n]o State shall, without the Consent of Congress, * * * keep Troops, or Ships of War, in time of Peace". Article I, Section 10, Clause 3. But "Militia" are not "Troops". For the Constitution delegates to Congress a power "[t]o provide * * * for governing such Part [of the Militia] as may be employed in the Service of the United States", and only "such Part"--necessarily reserving to the States the governance of all of their Militia not "employed in the Service of the United States", with no suggestion that the States may exercise such governance only with "the Consent of Congress".
Just as the States require no prior permission from Congress to exercise their concurrent powers over their Militia, they are not subject to Congress's disapproval of any such exercise, except through Congress's proper exercise of one of its own Militia Powers. The key element here is that Congress must properly exercise one of those powers. Thus, if a State were to prescribe that her Militiamen must be armed with rifles of .223 caliber, but Congress ordained that all Militiamen nationwide must be armed with rifles of .308 caliber, Congress's mandate would have to prevail, to the extent that no Militiaman could exempt himself from the Congressional requirement by pleading that he was in compliance with the State requirement. For the Constitution delegates to Congress a power "[t]o provide for * * * arming * * * the Militia"; a statute specifying the minimum caliber for Militia "arm" is plainly constitutional; and "the Laws of the United States which shall be made in Pursuance [of the Constitution] * * * shall be the supreme Law of the Land". Article I, Section 8, Clause 16; Article VI, Clause 2. (Of course, Congress could not prevent the State from requiring each of her Militiamen to possess a rifle of .223 caliber in addition to the rifle of .308 caliber that Congress specified.)
On the other hand, if Congressmen steeped in usurpation and tyranny were to enact a general "gun-control" statute banning the private possession by all Americans of all rifles--thereby effectively destroying "the Militia of the several States" by depriving them of the necessary means to perform their functions--any State could exercise her reserved power to maintain her Militia by enacting a statute that required all State citizens to possess one or more rifles suitable for Militia service. Indeed, it would be each State's absolute constitutional right and duty to do so. The purported Congressional statute could not supersede such a State law, because it would not have been "made in Pursuance of [the Constitution]", but in derogation and attempted destruction thereof. And "[a]n unconstitutional act is not a law; * * * it imposes no duties; it is, in legal contemplation, as inoperative as though it had never been passed". Norton v. Shelby County, 118 U.S. 425, 442 (1886).
Even if such a "gun-control" statute might be valid in a territory not subject to any State's jurisdiction, such as the benighted District of Columbia, it could never be valid within any State, because
maintenance of "the Militia of the several States" is one of the attributes of State sovereignty--indeed, an essential function of every State government necessary for the existence of the States and through them of the United States--which the Constitution explicitly recognizes;
the Colonies and independent States exercised the power and duty to maintain Militia before the Constitution was ratified, and retain under the Constitution a concurrent power and duty of scope greater than the similar power and duty delegated to Congress (which appertain to three specific purposes only); and
Congress may exercise none of its powers in such wise as to abridge any attribute of State sovereignty.
Contrast Article I, Section 8, Clause 17 with Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76-78 (1869). Importantly, in Lane County the question was whether a Congressional power the Supreme Court recognized as valid (the power to emit legal-tender paper currency) could override a State's sovereign power to determine the medium in which to collect her taxes (gold and silver coin), which sovereign power is only implicit in the Constitution. In the case of general "gun control", however, the question would be whether a plainly invalid Congressional power could override a State's sovereign power that the Constitution explicitly recognizes and incorporates as part of its federal system. For any purported Congressional power to disarm common Americans directly contradicts the actual constitutional power, and duty, of Congress "[t]o provide for * * * arming * * * the Militia", and (to the extent it is exercised and enforced) destroys the efficacy if not the very existence of "the Militia of the several States".
Thus, all general "gun-control" legislation emanating from the General Government is subject to effective nullification by the States on the basis of the Militia Clauses of the original Constitution alone, without reference to the Second Amendment.
(b) Congress. Because the Constitution itself recognizes "the Militia of the several States" as part of its federal structure, and empowers them for certain important National purposes, the Militia are not optional, discretionary, or disposable for Congress. Because the Militia are "the Militia of the several States", not of the United States, Congress lacks all authority either to create or to dissolve them--just as it lacks authority to create or dissolve a State's legislature, executive, or judiciary. Congress also lacks authority to disregard, neglect, or impede the Militia, with respect either to the performance of their constitutionally mandated services to the Nation, or to their practical ability to perform those services. Instead, Congress's powers and duties are "[t]o provide for calling forth the Militia" for particular National purposes, and to make them fully effective for those purposes by "provid[ing] for organizing, arming, and disciplining" them. Article I, Section 8, Clauses 15 and 16.
The Constitution does delegate to Congress the power "[t]o provide for organizing * * * the Militia". Article I, Section 8, Clause 16. "To provide for organizing" does not, however, entail a power to create "the Militia of the several States" from whole cloth, according to some eccentric definition that politicians might devise in the Capitol. For the Founding Fathers knew that "the Militia of the several States" had existed for nearly 150 years prior to ratification of the Constitution; yet they did not provide in the Constitution for disbanding these pre-existing Militia in order to clear the ground for erecting some entirely novel establishment under the rubric "Militia". Doubtlessly, this was because the Founders understood the term "Militia" as it had been understood for nearly 150 years theretofore: namely, to mean nothing less than almost the whole body of the people of each State, properly armed and accoutred for military service. And they constitutionalized this historic definition precisely so that Congress alone could never change it. Whereas they employed the verb "organiz[e]" in a general sense, in order to provide Congress with some latitude to structure the body of the armed people in whatever manners might prove most effective from era to era. Thus, "[t]o provide for organizing * * * the Militia" means putting the pre-existing and permanent "Militia of the several States"--the whole body of the armed people in each State--into the form best suited to their purposes and functions as circumstances counsel.
This power should be contrasted with Congress's powers "[t]o raise * * * Armies" and "[t]o provide and maintain a Navy". Article I, Section 8, Clauses 12 and 13. "To raise" and "[t]o provide" these things themselves both imply that, prior to Congress's action, no "Armies" or "Navy" exist. Distinguishably, Congress is not empowered to "raise" or "provide" the Militia, but only "[t]o provide for" taking certain other actions with respect to the Militia, which the Constitution presumes are already in existence.
(continued...)
GUARANTEE THE RIGHT TO KEEP AND BEAR ARMS
PART 3 of 6
Dr. Edwin Vieira, Jr., Ph.D., J.D.
September 21, 2005
NewsWithViews.com
Continuing the analysis of the Militia in the Constitution begun in PART ONE and PART TWO of this commentary, we turn to...
3. The roles of the States, Congress, the President, and the Courts with respect to "the Militia of the several States". By incorporating "the Militia of the several States" as they existed and operated prior to its ratification, the Constitution makes several matters perfectly clear:
(a) The States. The Constitution recognizes and permanently includes as part of its federal system only "the Militia of the several States". It neither recognizes nor creates any "Militia of the United States" at all--because no such militia ever existed, and the Founding Fathers evidently desired that no such militia be formed. True, "the Militia of the several States" may be "call[ed] forth" by Congress "to execute the Laws of the Union, suppress Insurrections and repel Invasions"; "such Part of them as may be employed in the Service of the United States" for those purposes may be "govern[ed]" as Congress directs; and "[t]he President shall be Commander in Chief * * * of the Militia of the several States, when called into the actual Service of the United States". Article I, Section 8, Clauses 15 and 16; and Article II, Section 2, Clause 1. But even when temporarily "call[ed] forth", "govern[ed]", and subjected to the President's command "in[ ] the actual Service of the United States", "the Militia of the several States" nevertheless retain their identities and natures as permanent State institutions. The Constitution authorizes neither Congress nor the President to do anything that detracts from, let alone contradicts, these identities and natures.
For that reason, the Constitution authorizes neither Congress nor the President to employ the Militia so as to attack, subvert, or in any other way undermine any State's existence, powers and authority, or her "Republican Form of Government"--or to refuse to employ the Militia to protect those attributes. None of "the Militia of the several States" can be used, actively or passively, against any of "the several States".
Although the Constitution recognizes "the Militia of the several States" as State institutions, the States themselves cannot dispense with the Militia, in whole or material part, because the Constitution presupposes the permanence of the Militia, and the Constitution is "the supreme Law of the Land", which all State officials "shall be bound by Oath or Affirmation, to support". Article VI, Clauses 2 and 3. If the States could dissolve their Militia or allow them to fall into decrepitude, could disregard the Militia's historic principles, could deprive the Militia of their historic purposes and functions, or could deny the Militia the means necessary to perform those purposes and functions, the States could thereby
destroy a component of the Constitution's federal structure no less important than the States themselves;
nullify Congress's power to "call[ ] forth the Militia" for constitutional purposes;
deprive the President of an important means to fulfill his duty to "take Care that the Laws be faithfully executed";
render unfulfillable the duty of the United States to "guarantee to every State in this Union a Republican Form of Government" and to "protect each of them against Invasion; and * * * against domestic Violence"; and even
disarm themselves from "engag[ing] in War" when "actually invaded, or in such imminent Danger as will not admit of delay", because (absent dispensation from Congress) they would have no other armed forces to deploy in their own defense.
See Article I, Section 8, Clause 15; Article II, Section 3; Article IV, Section 4; and Article I, Section 10, Clause 3. These dire consequences disprove even the arguable existence of any license in the States to disestablish their Militia.
Thus, because the Constitution guarantees the permanent existence of "the Militia of the several States" in the plenitude of their historic principles, with all the means necessary to perform their purposes and functions, the States cannot disarm the Militia. For disarmed Militia are no Militia at all. On the other hand, if Congress fails, neglects, refuses, or is simply unable to exercise its own constitutional power and duty "[t]o provide for * * * arming * * * the Militia", or attempts to usurp a power to disarm the Militia (through some National "gun-control" statute), the States must themselves arm their Militia, and take whatever other actions may be necessary to thwart the enforcement of such an unconstitutional statute.
Because the Militia are State institutions, the Constitution reserves to the States an exclusive power and duty to "govern[ ] such Part of them as may [not] be employed in the Service of the United States", and a concurrent power and duty to provide for "organizing, arming, and disciplining" their Militia if Congress fails, neglects, refuses, or is unable to do so, in whole or in part. See Article I, Section 8, Clause 16; Amendment X; Amendment XIV, Section 1; and Houston v. Moore, 18 U.S. (5 Wheaton) 1 (1820). Indeed, if negligent or criminal Congressmen, by shirking their duties or conspiring to defeat the Constitution, could by nonfeasance, misfeasance, or malfeasance render the Militia impotent and thereby put the Nation and States in peril, and the States nevertheless were powerless to correct the situation, "the Militia of the several States" would be nothing but a verbal shadow without substance.
The Constitution reserves to the States "the Authority of training the Militia according to the discipline prescribed by Congress". Article I, Section 8, Clause 16. If Congress fails to "prescribe[ ]" such "discipline", and in all cases where any Congressionally mandated "discipline" does not apply, the States do not need Congress's permission to administer their Militia as they may judge to be necessary and proper. Prior to ratification of the Constitution, the States' powers over their Militia were plenary. The Constitution delegated to Congress certain limited powers with respect to the Militia--which powers, if Congress properly exercises them, are "the supreme Law of the Land" that supersede conflicting State laws. Article VI, Clause 2. Otherwise, the States retain a concurrent power to enact laws to govern their Militia. Amendment X.
The Constitution does provide that "[n]o State shall, without the Consent of Congress, * * * keep Troops, or Ships of War, in time of Peace". Article I, Section 10, Clause 3. But "Militia" are not "Troops". For the Constitution delegates to Congress a power "[t]o provide * * * for governing such Part [of the Militia] as may be employed in the Service of the United States", and only "such Part"--necessarily reserving to the States the governance of all of their Militia not "employed in the Service of the United States", with no suggestion that the States may exercise such governance only with "the Consent of Congress".
Just as the States require no prior permission from Congress to exercise their concurrent powers over their Militia, they are not subject to Congress's disapproval of any such exercise, except through Congress's proper exercise of one of its own Militia Powers. The key element here is that Congress must properly exercise one of those powers. Thus, if a State were to prescribe that her Militiamen must be armed with rifles of .223 caliber, but Congress ordained that all Militiamen nationwide must be armed with rifles of .308 caliber, Congress's mandate would have to prevail, to the extent that no Militiaman could exempt himself from the Congressional requirement by pleading that he was in compliance with the State requirement. For the Constitution delegates to Congress a power "[t]o provide for * * * arming * * * the Militia"; a statute specifying the minimum caliber for Militia "arm
On the other hand, if Congressmen steeped in usurpation and tyranny were to enact a general "gun-control" statute banning the private possession by all Americans of all rifles--thereby effectively destroying "the Militia of the several States" by depriving them of the necessary means to perform their functions--any State could exercise her reserved power to maintain her Militia by enacting a statute that required all State citizens to possess one or more rifles suitable for Militia service. Indeed, it would be each State's absolute constitutional right and duty to do so. The purported Congressional statute could not supersede such a State law, because it would not have been "made in Pursuance of [the Constitution]", but in derogation and attempted destruction thereof. And "[a]n unconstitutional act is not a law; * * * it imposes no duties; it is, in legal contemplation, as inoperative as though it had never been passed". Norton v. Shelby County, 118 U.S. 425, 442 (1886).
Even if such a "gun-control" statute might be valid in a territory not subject to any State's jurisdiction, such as the benighted District of Columbia, it could never be valid within any State, because
maintenance of "the Militia of the several States" is one of the attributes of State sovereignty--indeed, an essential function of every State government necessary for the existence of the States and through them of the United States--which the Constitution explicitly recognizes;
the Colonies and independent States exercised the power and duty to maintain Militia before the Constitution was ratified, and retain under the Constitution a concurrent power and duty of scope greater than the similar power and duty delegated to Congress (which appertain to three specific purposes only); and
Congress may exercise none of its powers in such wise as to abridge any attribute of State sovereignty.
Contrast Article I, Section 8, Clause 17 with Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76-78 (1869). Importantly, in Lane County the question was whether a Congressional power the Supreme Court recognized as valid (the power to emit legal-tender paper currency) could override a State's sovereign power to determine the medium in which to collect her taxes (gold and silver coin), which sovereign power is only implicit in the Constitution. In the case of general "gun control", however, the question would be whether a plainly invalid Congressional power could override a State's sovereign power that the Constitution explicitly recognizes and incorporates as part of its federal system. For any purported Congressional power to disarm common Americans directly contradicts the actual constitutional power, and duty, of Congress "[t]o provide for * * * arming * * * the Militia", and (to the extent it is exercised and enforced) destroys the efficacy if not the very existence of "the Militia of the several States".
Thus, all general "gun-control" legislation emanating from the General Government is subject to effective nullification by the States on the basis of the Militia Clauses of the original Constitution alone, without reference to the Second Amendment.
(b) Congress. Because the Constitution itself recognizes "the Militia of the several States" as part of its federal structure, and empowers them for certain important National purposes, the Militia are not optional, discretionary, or disposable for Congress. Because the Militia are "the Militia of the several States", not of the United States, Congress lacks all authority either to create or to dissolve them--just as it lacks authority to create or dissolve a State's legislature, executive, or judiciary. Congress also lacks authority to disregard, neglect, or impede the Militia, with respect either to the performance of their constitutionally mandated services to the Nation, or to their practical ability to perform those services. Instead, Congress's powers and duties are "[t]o provide for calling forth the Militia" for particular National purposes, and to make them fully effective for those purposes by "provid[ing] for organizing, arming, and disciplining" them. Article I, Section 8, Clauses 15 and 16.
The Constitution does delegate to Congress the power "[t]o provide for organizing * * * the Militia". Article I, Section 8, Clause 16. "To provide for organizing" does not, however, entail a power to create "the Militia of the several States" from whole cloth, according to some eccentric definition that politicians might devise in the Capitol. For the Founding Fathers knew that "the Militia of the several States" had existed for nearly 150 years prior to ratification of the Constitution; yet they did not provide in the Constitution for disbanding these pre-existing Militia in order to clear the ground for erecting some entirely novel establishment under the rubric "Militia". Doubtlessly, this was because the Founders understood the term "Militia" as it had been understood for nearly 150 years theretofore: namely, to mean nothing less than almost the whole body of the people of each State, properly armed and accoutred for military service. And they constitutionalized this historic definition precisely so that Congress alone could never change it. Whereas they employed the verb "organiz[e]" in a general sense, in order to provide Congress with some latitude to structure the body of the armed people in whatever manners might prove most effective from era to era. Thus, "[t]o provide for organizing * * * the Militia" means putting the pre-existing and permanent "Militia of the several States"--the whole body of the armed people in each State--into the form best suited to their purposes and functions as circumstances counsel.
This power should be contrasted with Congress's powers "[t]o raise * * * Armies" and "[t]o provide and maintain a Navy". Article I, Section 8, Clauses 12 and 13. "To raise" and "[t]o provide" these things themselves both imply that, prior to Congress's action, no "Armies" or "Navy" exist. Distinguishably, Congress is not empowered to "raise" or "provide" the Militia, but only "[t]o provide for" taking certain other actions with respect to the Militia, which the Constitution presumes are already in existence.
(continued...)