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What Kind of Free State Needs a Militia?

What Kind of Free State Needs a Militia?

By: Jefferson Paine

In the debate over gun control, we often hear this about the Second Amendment: The phrase “necessary to the security of a free State” is about the need for a militia to protect the United States from its enemies around the world. When under attack, the American military can call up reinforcements: citizens in the National Guards maintained by each state. Even apart from the usual objections regarding the distinction between organized and unorganized militias, or the post-Constitution birth of the National Guard, a little consideration of this “American independence” interpretation in context reveals the notion to be incoherent.

“A free State” in this context cannot logically refer simply to an independent America, for a number of reasons.

If the concern of the Founders was merely that the U.S. be free among the community of nations, one might argue that the “American independence” interpretation makes perfect sense. It doesn’t, for the indisputable reason that a militia is not necessary to maintain national independence. Yes, a military is necessary, but a standing army (with its sibling branches) could do that job; there’s no need for a militia in addition. Anyone tempted to think there might be need only realize that, in principle, anyone who can serve in a militia can also serve in a professional military.
 
 

Further, even if we pretend that the professional military needs some kind of component designated as militia, the notion that a “right of the people to keep and bear Arms” is required to arm the military is downright laughable. Servicemen and -women would be issued weapons to fulfill their military duties and for no other reason. A Second Amendment would be totally spurious, its presence in the Constitution a monumental lapse of rationality.

Of course, the Founders were eminently rational, and if confusion remains over what they meant by “free State,” perhaps we should ask how they may have been misunderstood. States that aren’t under the control of other nations or external forces are independent, yet they may not be free in the sense that their people lack liberty. If a free state is taken to be one whose people are free (a matter of some concern to the Founders), it must not only be free of foreign control, but protective of its citizens’ liberty. And to protect the people against tyranny at home, one cannot rely on a federal military run by would-be masters.

One genuinely needs a civilian militia capable of containing the power of an over-ambitious federal military if individual liberty is to be anything more than a revocable privilege.

In short, if the freedom of a state is measured by the freedom of its people, a militia is truly necessary, the meaning of the Second Amendment is clear, and its presence in the Constitution is eminently sensible.

Could the Founders have intended the Second Amendment to protect the sovereignty of the states within the union created by the Constitution? It may seem so, but I doubt that was more than an admittedly important secondary concern. Yes, the Constitution was a pact among the states creating the union and circumscribing its powers. It is often said that the document places constraints only on the federal government, but the Tenth Amendment speaks of powers prohibited by the Constitution to the states. Though I haven’t heard this argued elsewhere, and I haven’t attempted to muster historical documentary support for the idea, I suspect the Second Amendment contains one such prohibition. That is, I think it is likely intended to guarantee the people of all the states their freedom " not just guarantee the states their sovereignty (conceivably even as totalitarian states).

That interpretation of a “doubly binding” Second Amendment is reinforced by the Constitution’s guarantee of a republican form of government for each state. The notion of a republican form of government for un-free people is downright oxymoronic.

Another indication that the Second Amendment restricts the states is the choice of language different from that used in the First Amendment. Why didn’t the Second Amendment simply prohibit Congress alone from legislating away the right to weaponry, just as it did with respect to free speech and religion? It can hardly be that the option never occurred to anyone! No, “shall not be infringed” implies an insistence that under the Constitution no agency whatever may attack the ownership of personal weapons. Indeed, the choice of “infringed” rather than some term like “abolished,” “denied,” or “prohibited” conveys the clear sense that we are dealing with one of the pre-existing inalienable rights mentioned in the Declaration of Independence rather than some civil right that can be granted or refused by government. For all these reasons, I think the Second Amendment is supposed to function in large part to protect the people from their state governments as well as from the federal one. Only an armed populace (a good, historical, common working definition of “militia”) can secure the people’s liberty at all levels of government.

It is no accident, then, that the Second Amendment specifies a right of the people to keep and bear arms. It is also unnecessary for those who insist on Constitutional protection against gun control by state or local governments to argue that the Fourteenth Amendment “federalizes” the Bill of Rights, as is usually done. The Second Amendment never needed to be extended by the Fourteenth to pertain to the states, for it already did. At least that’s my reasoning.

My point in this article has been that if the Second Amendment is a sensible expression of realistic values and objectives for the fledgling United States, none of the “not an individual right” interpretations flooding the marketplace of ideas can be correct. Let me conclude by saying that if the Second Amendment is not sensible or realistic, then there is no reason for its opponents to pay any sort of lip service to it. No concessions to hunting rights, or even to self-defense at what we might call the “retail” level are needed; one simply argues that the Second Amendment makes no sense. If, that is, logical argument of the issue is the objective.

No. If the Second Amendment isn’t about wholesale self-defense against those who would use government to subjugate, then it isn’t about anything. And if it isn’t about anything, then its opponents have been wasting their breath in addition to the prospects of their posterity’s liberty.

 



 

 
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Comments in Response

Comment by: Dennis Treybil (#34261)
   Entered on: 2013-02-02 11:20:25

 Thank you Jefferson Paine for a very enjoyable read.  Interesting choice of nom de’ plume, assuming it’s not your actual name.  I suppose if that is your name, that could be considered even more interesting.  In a Truth Seeker magazine article published in the early 1990’s, it was advocated that Paine was a significant contributor, if not the primary author, of the Declaration.

In my comments on your article, I separate each section by a line of asterisks.  The cited portion of your article is included in italics immediately following.  Below that are my reflections on the cited text.

Here goes . . . .

* * * * * * * * * * * * * * * *

What Kind of Free State Needs a Militia?

 

“A free State” in this context cannot logically refer simply to an independent America, for a number of reasons.

 

Even the title is interesting!

Consider Article 13 from the Virginia Bill of Rights, first circulated May 20, 1776 and unanimously adopted June 12, 1776

XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

 

See http://en.wikipedia.org/wiki/Virginia_Bill_of_Rights for more.

The reference to standing armies in time of peace was mentioned in the DoI.  I think this example alone demonstrates the influence the Virginia BoR had on the DoI. 

Also, here is your answer to what inhabitants of these States thought a militia was 1776 and why it was necessary.

* * * * * * * * * *

Of course, the Founders were eminently rational, and if confusion remains over what they meant by “free State,” perhaps we should ask how they may have been misunderstood.

 

I think a “free State” is a State in which a Republican form of government is being practiced.  You allude to Republic later on.  Of course, the Constitution for the USoA includes a guarantee of a Republican form of government.

 

 

* * * * * * * * * *

Could the **Founders** have intended the Second Amendment to protect the sovereignty of the states within the union created by the Constitution?

 

Later, you seem to favor/advocate incorporation of certain provisions of the Constitution for the USoA against the States.  Does this protect sovereignty of the States or is doing so a violation of the sacred cow of State sovereignty?

In my view both the central body of the federal government and the state bodies of the federal government (not to mention county/parish and municipal bodies of the federal government) are fictitious entities.  The people and only the people are real.  (Check out The Velveteen Rabbit if you have not done so recently.)

In a properly functioning (ideal?) Republic, the people hold supreme power.  The people are sovereign.  The DoI timidly acknowledges this in its consent of the governed language.  The constitution for the state of Louisiana more boldly supports this in its opening paragraph:

1. Origin and Purpose of Government 

 

Section 1. All government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights, and promote the happiness and general welfare of the people. The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.

 

Not only consent of the governed " the actual will of the people.  The people are sovereign, the way I read this language.

Will any fictitious entity protect the sovereignty of real people?  If ever, not reliably.  That falls to the people themselves.

* * * * * * * *

Constitution was a pact among the states **creating the union** and circumscribing its powers.

 

Pact among the states " yes.  Creating the union " maybe not so much.  The Constitution for the USoA replaced the Articles of Confederation.  See http://en.wikipedia.org/wiki/Articles_of_Confederation  Notice the title:  Articles of Confederation and Perpetual Union.  There’s that word “union”.

Whether such a union existed in 1776, prior to that, or since then, I do not know.  In 1776, there was the Loyalist faction who did not support the revolution.  If the union was indeed among the States, then how can a union consisting of fictitious entities be “real”?!  And how could the union be among the people when the populace was divided roughly into thirds " 1/3 supporting revolution, 1/3 opposed, and the other third not caring?

Then there’s that word “Perpetual”.  The supposedly “Perpetual” union created(? If it doesn’t exist " a matter of some debate, how can it be created?) in 1777 nearly fell apart in 1787.  That why the AoC were replaced by the Constitution for the USoA, beginning with the framing in 1787.

As an intellectual exercise (which as correctly been pointed out as a debate that can end up any way imaginable " except when courts engage in them when they seem to proceed in the direction of centralizing power.)  it was argued by Lincoln and others that a more perfect union (alluded to in the Preamble) was a union more perfect than that “created” by the AoC and was thus “more perpetual than perpetual”.  The political campaign rhetoric was enshrined in law by the infamous Texas v. White court case.  The judge who wrote it into the decision happened to be a Lincoln appointee.  This language can be seen as tending to centralize power by making the Constitution appear non-revocable.  Lincoln was cited as saying, “No government has ever contemplated its own destruction.”

* * * * * * * * *

It is often said that the document places constraints only on the federal government, but the Tenth Amendment speaks of powers prohibited by the Constitution to the states.

 

The mission of the Constitution for the USoA was to “repel invasion from without and quell convulsion within”.  In the period between 1783 (official cessation of hostilities between USoA and England) and 1787 (when the supposedly perpetual union nearly imploded), the States were doing things to each other that practically guaranteed a major “convulsion within”.  Article I Section 10 contains a list of powers prohibited to the states that either had actually been demonstrated during these 4 years or were anticipated as clearly posing a problem regarding domestic tranquility.  When domestic tranquility prevailed, “invasion from without” was less likely.  Thus, imposing these restrictions on the States was seen as supporting the overall mission of the Constitution for the USoA.  It was the people, not the fictitious central body of the federal government, nor the (13 at that time) fictitious state bodies of the federal government, who saw the need for these and imposed them.

* * * * * * *

Though I haven’t heard this argued elsewhere, and I haven’t attempted to muster historical documentary support for the idea, I suspect the Second Amendment contains one such prohibition. That is, I think it is likely intended to guarantee the people of all the states their freedom " not just guarantee the states their sovereignty (conceivably even as totalitarian states)  That interpretation of a “doubly binding” Second Amendment is reinforced by the Constitution’s guarantee of a republican form of government for each state..

 

This notion is also supported somewhat by the supremacy clause and the Constitution’s provisions for its own amendment (tch tch Lincoln!)  If an amendment could supersede provisions of the original seven articles(as more than one does), they had to carry the same weight.  Article V says this (note bold text):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

 

 

The supremacy clause (Article VI, paragraph 2) says this (also note text in bold):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

 


 

So the second amendment is part of the supreme law of the land.  It can be seen as “incorporated against the States” in 1791.  Interestingly enough, it is my understanding that the second amendment is not considered thus today because such has not been enshrined in law, though the recent Heller decision my lend support to such incorporation.

 


 

I’m told that Huey P. Long’s bodyguards were deprived of their weapons when he visited New York state.  The Sullivan Law was cited.  First point " even celebrity or political status does not guarantee your rights, especially if you happen to be unpopular (you go Marc Victor!)

 


 

Second point, funny how full faith and credit applies to driver’s licenses and marriage licenses (now including gay marriage licenses) but not to CCP’s.  I can just see Arsenio Hall rubbing his chin and saying, “This is one of those things that make you go ‘Hmmmm’!”

 


 

            * * * * * * * *

     Repeating a statement from the prior cite:

Though I haven’t attempted to muster historical documentary support for the idea, . . .

I hope the following act of shameless self-promotion will be forgiven by anyone who has read this far.  I hope to have an unedited draft of my next book available in Kindle format next Saturday or before.  I’m currently having hell getting cover art to my own satisfaction.  When that is accomplished, the remaining steps toward publication will be undertaken.

This book pursues many of the thoughts expressed in my comments here to a much greater degree.  The discussion is supported by history surrounding the framing of the Constitution for the USoA.  I hope that you Mr. Paine and others will be sufficiently interested by my comments here to give this work a look.

Moving right along . . . .

* * * * * * * * *

The notion of a republican form of government for un-free people is downright oxymoronic.

 

Yes!!!!!!

* * * * * * * *

Another indication that the Second Amendment restricts the states is the choice of language different from that used in the First Amendment. Why didn’t the Second Amendment simply prohibit Congress alone from legislating away the right to weaponry, just as it did with respect to free speech and religion? It can hardly be that the option never occurred to anyone! No, “shall not be infringed” implies an insistence that under the Constitution no agency whatever may attack the ownership of personal weapons.

The BoR was ratified December 15, 1791.  Do you suppose that on December 16, 1791 that the central body of the federal government would act to counter something like the Sullivan Law in New York state?  I doubt it.  At that time, the (fledgling) central body of the federal government was not strong enough to do it.  The union contemplated in the preamble was also not-as-yet welded and concreted together by the Civil War.  Would that union survive any attempt by the (then-fledgling) central body of the (also then-fledgling) federal government.

While I strongly favor personal ownership of firearms, I shudder at the thought of legal support for this right ever depending on the central body of the federal government.  The thought of such support originating in state bodies of the federal government is also of little comfort.  Better it come from the people.  An ounce of prevention is worth a pound of cure.  The attempt must continue to be made to get folk friendly to natural rights in seats of the formal government in all bodies, including municipal, county/parish, state and central, of the federal government.

* * * * * * * *

Bering Sea Gold rant

Not part of your article, but just something that caught my attention last night.  The Captain of one of the boats is pouring fuel into a tank.  He rants, “I can P*$$ faster than this!!!  And it’s all because of the federal government.  Their regulations force me to use this slow-pouring spout!!!!!! &#@!()&&& the federal government!!!!”

Of course, he is referring to one (or perhaps more) of the bureaucratic agencies operating under the auspices of the central body of the federal government.  I suppose his rant could lose impact if he said all that.

Still, the very use of the word “federal” in this context, while at the same time expressing opposition to its policies, obscure the intended distribution of powers.

 * * * * * * * * * *

Only an armed populace (a good, historical, common working definition of “militia”) can secure the people’s liberty at all levels of government.  

Also Yes!!!  Armed with adequate weaponry along with facts and truth (the latter two commodities being scarce in war and not always plentiful in time of domestic tranquility), the people can secure their own liberty and natural rights.

** * * * * * * * * *

It is no accident, then, that the Second Amendment specifies a right of the **people** to keep and bear arms.  It is also unnecessary for those who insist on Constitutional protection against gun control by state or local governments to argue that the Fourteenth Amendment “federalizes” the Bill of Rights, as is usually done. The Second Amendment never needed to be extended by the Fourteenth to pertain to the states, for it already did. At least that’s my reasoning.

 

Back in the 1990’s I made a similar argument, based on the use of the phrase “right of the people”, people being the operant word.

In the final analysis, it is the people themselves, not any body of the federal government, which must preserve any natural right.  When the seats of the formal government are occupied by folk friendly to natural rights, there is some hope of preserving those rights with (or perhaps despite) their oversight.  If folk who occupy the seats of formal government are not friendly to natural rights . . .

** * * * * * * * * *

DC Treybil

 

 

 

       
 
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