“The Militia Of The Several States” Guarantee The Right To Keep And Bear Arms
Part 2

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Too many people wrongly assume that the purpose of revitalizing “the Militia of the several States” (or, for that matter, of forming the kind of private citizens “militia” that already exist in several States) is to fight new battles of Lexington and Concord. To the contrary: The goal must be, if at all possible, to deter usurpation and tyranny, so as to make actually fighting any battle here in America unnecessary. Deterrence is always the best defense. And preparedness makes deterrence credible. Besides, the ultimate purpose of revitalizing “the Militia of the several States” is to reassert We the People’s control over both the General Government and the States, from the inside and under the law, by infusing with energy a very important constitutional component of those governments that has withered to a present-day impotence and insignificance. Yet nonetheless not to irrelevance–for “the Militia of the several States” remain not only part of the Constitution, but also, with the continuing crisis over “homeland security”, more relevant and needed than ever before.

The problem and the challenge are for Americans to develop–on their own, because no one from the Establishment will ever help them–the necessary knowledge, skills, and attitude that can develop preparedness, and thus provide deterrence.1 Or, to put into action the principle: self-help leads to self-defense, which leads to self-government. “Knowledge” looks to discovery of what the Constitution really means. “Skills” relates to the ability to organize for effective political action in order to secure and advance the protection the Constitution offers. And “attitude” requires taking all of this seriously: recognizing that the constitutional “right of the people to keep and bear Arms” is also, and most importantly, the constitutional “duty of the people to keep and bear Arms”, and that no constitutional rights can possibly be secure unless We the People perform their constitutional duty to take control of their governments at every level and at all times. The remaining PARTS of this commentary will focus on these issues.
KNOWLEDGE–What is the true constitutional protection for “the right of the people to keep and bear Arms”?

As PART ONE of this commentary pointed out, Alexander Hamilton argued that all of the Bill of Rights, including the Second Amendment, were unnecessary and even potentially dangerous. Hamilton, of course, was not the only Founding Father to advance such an assertion, to which Time and Experience, too, have given much credence. But if Hamilton and his co-thinkers were correct, then the original Constitution, prior to ratification of the Bill of Rights, must have delegated no power to Congress to disarm the people, and suffered no such power to remain in the States (if any had ever existed there at all). Instead, the original Constitution must have recognized an enforceable disability (an absence of legal power and authority) in both Congress and the States to interfere with “the right of the people to keep and bear Arms”–which disability in some superfluous manner and degree the Second Amendment merely reiterated and confirmed; and which disability still exists in its full original form and force, even without consideration of the Second Amendment, because the Constitution has never been amended in that particular since the Second Amendment was ratified.

1. The Militia Clauses. So where in the original Constitution appeared (and now remain) any provisions that, in line with but more effectively than the Second Amendment, protect “the right of the people to keep and bear Arms” from infringement? The proper direction in which to look is indicated by the rule of construction that when the Framers used a word in more than one clause of the Constitution, they presumably meant it to have the same meaning in each. See, e.g., Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 452-53 (1805).

The key word here, of course, is “Militia”, which appears in the original Constitution in:

    Article I, Section 8, Clause 15–“[Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions”.

    Article I, Section 8, Clause 16–“[Congress shall have Power] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”.

    Article II, Section II, Clause 1–“The President shall be Commander in Chief… of the Militia of the several States, when called into the actual Service of the United States”.

And in the Second Amendment:

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Self evidently, the “well regulated Militia” to which the Second Amendment refers must be “the Militia of the several States” as they existed in the period from 1787 to 1791 (and for nearly 150 years theretofore)–to be sure, after 1787 properly “organiz[ed], arm[ed], and disciplin[ed]” by Congress, “train[ed]” by the States, and led by the President as “Commander in Chief… when in the actual Service of the United States” for the three particular purposes the Constitution allows, but otherwise under the command of competent State authorities. For neither the Second Amendment nor the body of the Constitution mentions any other “Militia”; and Americans of that era knew of and had participated in none other than those.

Revealingly, the noun “Militia” does not appear in Article I, Section 10, Clause 3: “No State shall, without the Consent of Congress,… keep Troops, or Ships of War in time of Peace,… or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Thus, as this Clause attests, “Troops” are not the same as “Militia”. For the States may–indeed, must–maintain their “Militia” even “without the Consent of Congress”, because the Constitution itself recognizes “the Militia of the several States” as permanent institutions.

For the same reason, even “without the Consent of Congress” the States retain their pre-constitutional powers over their Militia, subject only to Congress’s limited supremacy as allowed in Article I, Section 8, Clauses 15 and 16. See Article VI, Clause 2. And should Congress neglect, fail, or refuse to exercise its powers properly under those Clauses, the States on their own authority may–indeed, constitutionally must–interpose whatever “organizing, arming, and disciplining”, “governing”, and “training” of their Militia they consider necessary to maintain “the Militia of the several States” in existence and readiness. See Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820).

The Second Amendment’s phrase “the security of a free State” does not appear in so many words in the original Constitution. Article IV, Section 4 does provide, however, that

    [t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

To the Founding Fathers, the verbal formulas “a free State” and “a Republican Form of Government” must have been closely connected. Which doubtlessly is why the Second Amendment recites that “[a] well regulated Militia [is] necessary to the security of a free State”; while Article IV, Section 4 “guarantee[s]… every State… against Invasion… [and] domestic Violence”; and Article I, Section 8, Clause 15 empowers Congress “[t]o call forth the Militia to execute the Laws of the Union” (including Article IV, Section 4), and to “suppress Insurrections and repel Invasions”. The unity of thought throughout these provisions could not possibly be just accidental.

So, the provisions in the original Constitution that deal, directly or indirectly, with “the Militia of the several States” and their purposes when “in[ ] the actual service of the United States”

    (i) recognize the prior and present existence of, and make permanent, “[a] well regulated Militia” in every State;

    (ii) guarantee “the security of a free State” for every State–and, collectively, for the United States–through “calling forth the[se] Militia” whenever necessary to secure “a Republican Form of Government” for each State and “to execute the Laws of the Union, suppress Insurrections, and repel Invasions” throughout the country; thus,

    (iii) empower “the Militia of the several States” and their members as the ultimate providers of “homeland security” against all “Insurrections”, “Invasions”, “domestic Violence”, and violations of “the Laws of the Union”; and, overall,

    (iv) treat “the Militia of the several States” as parts of both the General Government and the States, with vitally important public functions to perform.

All of this became part of “the supreme Law of the Land” well before the Second Amendment was ever debated in Congress, let alone ratified by the States. And it would continue to be “supreme Law” were the Second Amendment grossly misconstrued in the courts or even repealed altogether.

Perhaps most importantly, “the Militia of the several States” rank among only six institutions that the Constitution names and treats as permanent: to wit, We the People (in their capacity as earthly sovereign), the Militia, the States, the United States, Congress, the President, and the Supreme Court. True, Congress is empowered “[t]o raise and support Armies”, “[t]o provide and maintain a Navy”, and “[t]o constitute Tribunals inferior to the supreme Court”, if it finds them “necessary and proper”. Article I, Section 8, Clauses 9, 12, 13, and 18; and Article III, Section 1. But neither an “Arm[y]”, nor “a Navy”, nor any “Tribunal[ ] inferior to the supreme Court” has or can claim any constitutionally mandated and protected existence at all, absent affirmative Congressional action. Whereas, the Militia, the States, the United States, the President, and the Supreme Court exist perforce of the Constitution itself, notwithstanding anything that Congress may do or not do. And of these six constitutional institutions, “the Militia of the several States” are surely the oldest, because they existed in every one of the Colonies, even before the Colonies became independent States and formed the United States.

Also, with respect to the importance of their function, “the Militia of the several States” rank alongside the President himself. For they may be “call[ed] forth… to execute the Laws of the Union”, under the President as their “Commander in Chief”, to assist the President in performing his duty to “take Care that the Laws be faithfully executed”. Article I, Section 8, Clause 15; Article II, Section 2, Clause 1, and Section 3.

Interestingly, “the Militia of the several States” rank ahead of the Supreme Court, because to function at all the Court needs the President to appoint, and the Senate to confirm, its Justices; whereas, being composed of the body of the people of each State (as discussed below), the Militia exist as long as any of the people do.

Arguably, too, the Militia rank ahead of even the States and the United States, because whether a State retains “a Republican Form of Government” at all the Constitution itself foresees as possibly depending upon her “protect[ion] against Invasion… [and] domestic Violence” by the Militia; and whether the United States can “execute the Laws of the Union, suppress Insurrections, and repel Invasions” may depend upon the Militia as well. Article IV, Section 4; Article I, Section 8, Clause 15.

Finally, “the Militia of the several States” rank alongside We the People themselves, because the Militia are composed of the people, and, in the final analysis, We the People’s sovereignty depends on their control of the Power of the Sword through their Militia.

2. “The Militia of the several States”. The Constitution employs the noun “Militia” only in the plural: It designates the President as “Commander in Chief… of the Militia of the several States”, not of some single, unified militia; and it empowers Congress “[t]o provide… for governing such Part of them as may be employed in the Service of the United States”, not “for governing” some single, unified entity. Article II, Section 2, Clause 1; Article I, Section 8, Clause 16.

Moreover, the Constitution did not create from whole cloth “the Militia of the several States”. Instead, it

    * recognized “the Militia of the several States” as institutions that already existed (and, indeed, had existed for some 150 years in every one of the Colonies and independent States);
    * incorporated them all into the plan for a federal government;
    * made them all a permanent part of that plan (subject only to constitutional amendment); and
    * empowered them all to perform certain vital governmental functions,

      all according to the Militia’s historic purposes, principles, structures, functions, and operations.

      The last-mentioned point is of fundamental importance. When the Constitution incorporated “the Militia of the several States” into its federal system, it did so without defining them in any of those particulars. This was because–as with many constitutional terms perfectly familiar to the Founding Fathers and We the People at the time–no definitions were necessary. In the late 1700s, everyone knew what the attributes of “the Militia of the several States” were. And because no definitions were then considered necessary, the conclusion is inescapable that the Constitution must intend “the Militia of the several States” permanently to have and exercise their well-documented historic purposes, principles, structures, functions, and operations.

      This is apparent with respect to the three specific purposes for which the Constitution empowers Congress “[t]o provide for calling forth the Militia”: namely, “to execute the Laws of the Union, suppress Insurrections and repel Invasions”. Article I, Section 8, Clause 15. The Constitution needed to enumerate these purposes in order to define (and thereby limit) the authority of Congress to “employ[ the Militia] in the Service of the United States”. Article I, Section 8, Clause 16. Historically, though, these were among the primary functions of all the Colonial and State Militia from the beginning. Had the Constitution empowered Congress simply “[t]o provide for calling forth the Militia”, these three purposes would have been authorized by reference to the historic definition of the term “Militia”. The Framers explicitly listed them because they intended that only these purposes (and not any of the others the Militia may have served in pre-constitutional times) would justify Congress in “calling forth the Militia” “in the Service of the United States”.

      1 Anyone who has ever attended a firearms-training course conducted by NRA-certified instructors can appreciate why “knowledge”, “skills”, and “attitude” are central to everything concerning the lawful and competent use of firearms.

      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). His latest book is: How To Dethrone the Imperial Judiciary.