"The Militia Of The Several States" Guarantee The Right To Keep And Bear Arms

Submitted by SadInAmerica on Sat, 03/30/2013 - 5:10am.

Edwin-Vieira-2-lecture

One cannot hold to a fanciful, romantic, or even partially erroneous interpretation of the Constitution and nevertheless expect to be able to use the Constitution effectively to protect his rights. ~ Edwin Vieira, Jr., Ph.D, J.D. -
Parts 2 and 3 included

For his opponents will inevitably expose the flaws in his position and exploit them against him. Nowhere is this more true than with respect to the right of the people to keep and bear arms.

Most defenders of that right begin and end with 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."

Inasmuch as the Second Amendment does say that "the right of the people to keep and bear Arms, shall not be infringed", this reliance is not illogical. Less explicable, though, is why so many who advocate that right under color of that part of the Second Amendment nonetheless exclude altogether from their consideration the preceding companion language, "[a] well regulated Militia, being necessary to the security of a free State". Why rely on only a part, but not the whole?  

Often, the reason advanced follows these lines:

Even if the right to keep and bear arms is something that will support "[a] well regulated Militia", it is not necessarily the same thing as, or limited to, or even connected with "[a] well regulated Militia". Otherwise, the Second Amendment would simply say that "a well regulated Militia shall not be prohibited", or that "the right of the people to form a well regulated Militia shall not be infringed", or even that "the right of each State to form a well regulated Militia shall not be abridged". Therefore, the right to keep and bear arms can (and should) be defined, established, guaranteed, and protected separate from considerations of "a well regulated Militia".

One must wonder, however, why people today believe that such an argument can be valid, when obviously the Founding Fathers-who themselves explicitly conjoined the phrases "[a] well regulated Militia, being necessary to the security of a free State" and "the right of the people to keep and bear Arms, shall not be infringed" in the Second Amendment-subscribed to no such theory of separation in thought, nor consequentially in action, either. Certainly, "[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). See also Myers v. United States, 272 U.S. 52, 151-52 (1926); Knowlton v. Moore, 178 U.S. 41, 87 (1900); Blake v. McClung, 172 U.S. 239, 260-61 (1898); Hurtado v. California, 110 U.S. 516, 534 (1884).

The Founding Fathers, of course, were not writing on a clean slate. All of pre-constitutional American history as well confirms this plain linguistic evidence. From the settling of the first Colonies in the mid-1600s, "the right of the people to keep and bear Arms" was everywhere and always coincident with a duty of the people, as individuals, to keep and bear arms for service (actual or potential) in their Colonial and then State Militia.

Indeed, it is impossible to read the dozens of Colonial and State Militia Acts of the pre-constitutional period-in basic form and content strikingly similar to one another, from New Hampshire in the North to Georgia in the South-without concluding that the right and the duty to keep and bear arms were then-and, absent amendment of the Constitution, remain today-two sides of the selfsame coin.

Nowhere will a researcher find a body of Colonial or early State laws explicitly recognizing, protecting, and even enabling the right of individuals to keep and bear arms outside of the context of the duty of each individual to keep and bear arms.

Therefore, anyone conversant with this history-which forms the primary legal basis for "the right of the people to keep and bear Arms"-must question the practicality, and worry about the possible pitfalls, of the theory that reliance solely upon the second phrase of the Second Amendment can secure that right.

""˜In 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, 572-73 (1933). That being so, one hoping to rely on the Second Amendment dissects it at his peril.

Moreover, under present conditions, one who hopes to secure "the right of the people to keep and bear Arms" relies exclusively on the Second Amendment itself at his peril.

In The Federalist No. 84, Alexander Hamilton warned that all bills of rights were not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted….

Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?… [S]uch a provision… would furnish, to men disposed to usurp, a plausible pretense for claiming that power….

This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

Howsoever Hamilton himself may be justly criticized as an advocate of too powerful a central government and of too many "constructive powers", on this point he has proven all too prescient. "Why", one may ask with him, "should it be said that the [right of the people to keep and bear arms] shall not be [infringed], when no power is given by which restrictions may be imposed?…

[S]uch a provision… would furnish, to men disposed to usurp, a plausible pretense for claiming that power." And so Hamilton's prediction has become America's reality-with "men disposed to usurp" today using the very existence of the Second Amendment as a "handle[ ]" and "a plausible pretense for claiming th[e] power" to do precisely what the Amendment prohibits.

But was Hamilton correct that "no power is given [in the original Constitution] by which restrictions may be imposed"? Everyone who pays attention to the issue of "gun control" is familiar with the "gun controllers'" contentions that:

If the Second Amendment did not exist, Congress and the States would enjoy plenary power to ban all private possession of firearms-Congress, through the powers "[t]o lay and collect Taxes" and "[t]o regulate Commerce", which form the jurisdictional predicates for all modern "gun control" emanating from the General Government. Article I, Section 8, Clauses 2 and 3.

And, Even though the Second Amendment does exist, it confines the powers of Congress and the States in that particular only to the limited degree the courts (that is, the General Government and the States themselves) permit.

Everyone, too, has heard the argument that "the right of the people to keep and bear Arms" does not protect the private, personal possession of suitcase nuclear weapons, or anti-aircraft missiles, or heavy artillery-and that if Congress and the States may "regulate" to the point of absolute prohibition the private possession of such "Arms" as these, then they may also "regulate" to the point of absolute prohibition (or licensing, or registration) the private possession of any other "Arms", the sole question in every case being whether some judge will deem such a "regulation" to be "reasonable". (Of course, this line of reasoning is hopelessly illogical.

Just because "the right of the people to keep and bear Arms" might not include certain things that can be called "Arms" does not mean that it does not extend to the very types of "Arms" to which history proves the Second Amendment refers, or that it could ever be constitutionally "reasonable" to do precisely what the Amendment prohibits.

But, as Emerson would have agreed, where the spoils of usurpation and tyranny are at stake, "a foolish consistency is the hobgoblin of little minds".)

From arguments such as these-coupled with the imprudent concession by many supporters of "the right of the people to keep and bear Arms" that that right need not necessarily be construed in relation to or in light of what constituted "[a] well regulated Militia" in American experience-arises the "gun controllers'" latest all-purpose theory that, at the most, the Second Amendment protects the private possession of only some innocuous "sporting" "Arms", but not of any inherently dangerous military "Arms", such as so-called "assault rifles", .50 BMG caliber rifles, "sniper rifles" of all calibers (that is, very accurate rifles, typically with optical sights), and so on.

This theory exemplifies the old adage, "to kill a dog you must first call him mad". And it presupposes that construction of the Constitution may be reduced to puerile "name calling"-or at least that most Americans are so juvenile as to accept such a procedure. Yet, notwithstanding (or is it perhaps because of?) that fatal logical demerit, this jurisprudence of nasty names enjoys remarkable popularity among today's politicians, judges, and trial lawyers.

The epithets that pass for legal reasoning these days are all too familiar-such as "gangster weapons", "Saturday night special" (a bad name with an even worse racist background1), "concealable handgun", "sawed-off shotgun" (essentially, a shotgun plus a hacksaw), "cop-killer bullet" (and soon "cop-killer weapons", because a criminal can employ any firearm to kill a policemen), ad nauseam.

Most elastic and therefore dangerous, perhaps, is "weapon of choice for criminals"-because America's Colonial Militiamen were themselves all "criminals" under British law, as would be any modern Militiamen fighting usurpers and tyrants, if judged according to the usurpers' and tyrants' "laws"!

Thus, under this reasoning-by-labels, notwithstanding the Second Amendment Americans could be denied "the right… to keep and bear Arms" to defend even "the security of a free State", if their possession of "Arms" threatened the usurpers and tyrants intent on destroying that "security", and the usurpers and tyrants enacted "laws" banning such possession!

This last example emphasizes that the "gun controllers'" ultimate goal is to demonize not just certain specific adjectives, but the general nouns: "weapon", "rifle", "handgun", "shotgun", "bullet", and so on-that is, ANY AND EVERY firearm and type of ammunition-as the excuse for the utter elimination of them all from private possession, and with that the exposure of common Americans to whatever usurpation and tyranny surely will follow.

Where "gun controllers" cannot prohibit the private possession of firearms altogether by smearing them with bad names, they work to proscribe possession in certain places by playing on the feel-good modifier "gun free"-as in "gun-free school", "gun-free airport", "gun-free streets", or simply "gun-free zone".

If generalized (which is the "gun controllers'" objective), this tactic would gradually prohibit the private possession of firearms except within one's own home-and probably not allow it even there, given that slogans such as "gun-free home" or "gun-free family" doubtlessly will appeal strongly to those people who pay attention to sounds rather than substance.

One can hope that even the dullest American will recognize why, in the real world, where actions have consequences and effects follow from causes, any "gun-free zone" is actually a "self-defense prohibited zone" and a "free-fire zone for criminals and psychopaths", advertised and guaranteed as such to the predators under color of law.

It amounts to locking the visitors at the zoo inside the cages with hungry lions and tigers, jackals and hyenas, at feeding time. In short, it is politically mandated and imposed victimization of innocent citizens, through public officials' intentional aiding and abetting of criminal activities. (Another egregious case of contemporary politicians' penchant for using the law to break the law.)

As commonsensical as this insight is, though, it would be unnecessary if many advocates of "the right of the people to keep and bear Arms" did not concede that the Second Amendment can or even should be construed without reference to "[a] well regulated Militia", and therefore without reference to the actual history and principles of the pre-constitutional American Militia.

For, under all of the pre-constitutional Militia Acts, individuals kept the latest military firearms, ammunition, and accoutrements of their day in their own homes, in their private possession, at all times.

No public official or "gun-control" group would ever have dared to propose anything as ridiculous as a ban on "assault weapons" or "sniper rifles", when the muskets and rifles the laws required individuals to possess were the premier "assault weapons" and "sniper rifles" of that era. And no Militia Act ever created any "zone" where people who were required to possess arms could not go about armed.

To the contrary, in the days of greatest danger Militia Acts specifically designated even such places as town meetings and houses of worship to which individuals were required to bring their firearms in order to provide security for the community2-a practice which, if followed in today's governmental schools (the most extensive and indefensible of America's "gun-free zones"), probably could have stopped in their tracks the deplorable shooting rampages of recent years.

Thus, no free American needs any special reason, excuse, license, or permission to possess firearms or to go armed at home or in most public or private places, because these are not only constitutional rights, but also constitutional duties.3 The Constitution is every American's reason, license, and requirement to be armed.

Therefore the notions that whole classes of firearms suitable for Militia service can be proscribed by giving them bad names, or that huge geographical zones can be carved out in which individuals can be prohibited from exercising and performing their constitutional rights and especially duties, dissolve in the acid of their own absurdity.

Now, no one can deny that proponents of the Second Amendment have done yeoman service in both courts and legislatures, defending and often even advancing "the right of the people to keep and bear Arms"-such as through legislation in many States that expands the right of private citizens to carry concealed handguns in public.

Nonetheless, in contemporary judicial practice the Second Amendment constitutes something of a weak reed on which to lean while opposing prohibitions on the private possession of "bad-name guns", or the establishment of feel-good "gun-free zones".

Every lawyer who has engaged in constitutional litigation knows that judges often allow the General Government and the States to abridge, infringe, violate, or otherwise set aside even rights the Supreme Court considers "fundamental" (including the freedoms of speech and of the press), if government lawyers can satisfy the judges that there is some so-called "compelling interest" for doing so, and the means being employed are supposedly "least restrictive" of the right at issue.

This "compelling governmental interest test" (or "balancing test", as the courts often style it) is hopelessly incoherent, as Justice Hugo Black, dissenting, proved in the early decision in Konigsberg v. State Bar of California, 366 U.S. 36 (1961).

An even more fundamental point than Black made in that case, though, is that any government's most "compelling" interest is to protect its citizens in the enjoyment of their lives, liberties, and property. Every citizen "owes [the government] allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations.

The one is a compensation for the other; allegiance for protection and protection for allegiance." Minor v. Happersett, 88 U.S. (21 Wall.) 162, 165-66 (1875). Accord, Luria v. United States, 231 U.S. 9, 12 (1913).

Absent protection from the government, no citizens owe allegiance to it; but absent citizens' owing allegiance to it, there can be no "government" at all, rightly understood, because a "government" without loyal citizens is a contradiction in terms.

As the Declaration of Independence asserted in its indictment of King George III, "[h]e has abdicated Government here, by declaring us out of his Protection and waging War against us." So, how can there possibly ever be a more "compelling interest" that justifies abridging the government's most "compelling interest", upon the achievement of which its very existence and legitimacy depend?

Notwithstanding the self-contradictory nature of the "compelling governmental interest test", the courts now routinely employ it. And inasmuch as they apply it even to the First Amendment-the constitutional provision most beloved by the legal intelligentsiia, because it offers them the greatest range of opportunities for subverting, debasing, and generally corrupting America's culture-judges will certainly enforce it with even more gusto against the Second Amendment, which the legal intelligentsiia despise, fear, and desire to destroy.

Moreover, a "compelling government interest" and the "least-restrictive means" to achieve it are matters that judges themselves will decide, whilst recognizing no requirement for their decisions to rest on actual evidence, historical facts, objective standards, or even common sense.

For example, assume that Congress enacts a purported statute which bans the transportation, receipt, sale, barter, gift, transfer, or possession in interstate commerce of all handguns by private individuals. "Surely a clear-cut violation of the Second Amendment!" you say. Not so, as any $500-an-hour "gun-control" shyster attorney can easily demonstrate in the contemporary kangaroo courts:

* Criminals use "concealable handguns" to commit violent crimes.

* The government has a "compelling interest" in reducing the incidence of all crimes, including those committed with "concealable handguns".

* Because all handguns are more or less "concealable", all handguns are "concealable handguns".

* Criminals obtain handguns in the markets, white or black, which operate through or affect interstate commerce.

* If all these markets were absolutely denuded of handguns, criminals could not obtain them, and then could not use them to commit crimes.

* If interstate commerce were absolutely denuded of handguns, there would be none in the markets.

* The only way to remove all handguns from interstate commerce is to prohibit them absolutely.

* Therefore, the "least-restrictive means" to serve the "compelling interest" is to outlaw transportation, receipt, et cetera of all handguns in interstate commerce. And,

* Inasmuch as the Second Amendment protects only the right of common individuals to possess "sporting" firearms (the Amendment's "well regulated Militia" phrase being irrelevant), the government's "compelling interest" in banning all firearms outweighs any individual's personal interest in possessing any firearm, because the suppression of crime is undoubtedly more important than the pursuit of a mere hobby. Q.E.D.

Thus the Second Amendment is rendered (or proves itself) impotent.

Now, no true constitutionalist would ever admit that the foregoing "gun control" argument is even cogent, let alone unanswerable. To the contrary, properly contested it, and the "balancing test" on which it rests, are easily demolished. Nonetheless, this little mental exercise demonstrates that as soon as one accepts the propositions that

(i) the only or best protection for "the right of the people to keep and bear Arms" comes from those words in the Second Amendment, coupled solely with the further phrase "shall not be infringed",

(ii) the "Arms" to which the Amendment refers have no necessary relation to "[a] well regulated Militia", and

(iii) the Amendment's prohibition on any "infringe[ment]" of "the right of the people to keep and bear Arms" is always subject to the Judiciary's crackbrained "compelling governmental interest test", then the path to destruction of that right is straight downhill.

For a somewhat different example, assume that Congress enacts a purported statute which bans the private possession of all firearms, and requires them to be surrendered to the BATFE for immediate destruction.

On its face, such a statute is legally psychotic: On the one hand, to require individuals voluntarily to surrender their firearms to a governmental agency is to demand that they demonstrate their allegiance to the government by such an act.

Yet, on the other hand, to disarm those individuals is to deny them the means of self-defense and self-preservation both from common criminals and (more importantly) from usurpers and tyrants.

Self-defense is the only recourse left to citizens from common criminals when the police are not on the scene (which is most of the time), and especially when usurpers and tyrants control the police and employ them to enforce their usurpation and tyranny (which in that event is all of the time).

A true "government" is obliged, as a condition of its legitimacy and authority, to provide its citizens with protection under all circumstances-which requires it to empower, enable, or at least allow those citizens to possess and use efficacious means for self-defense when it cannot protect them directly, which is the case from time to time when common criminals or psychopaths strike unexpectedly, or at all times when society finds itself ground down under the iron heels of sociopathic usurpers and tyrants.

For public officials affirmatively and intentionally to make impossible self-protection by the citizens, by requiring them to surrender their firearms and render themselves utterly defenseless in the face of deadly aggression, puts an end to the citizens' "reciprocal obligation[ ]" of allegiance to the government.

But if that allegiance is nonetheless forced by, say, requiring citizens to suffer in silence house to house searches for and seizures of firearms, under color of law, what other than tyranny has been established?

A government that refuses protection to its citizens, but instead exposes them to destruction, cannot demand their allegiance; and a government that demands their allegiance without offering them protection-let alone while prohibiting them from protecting themselves-is no government at all, only a criminal conspiracy among the public officials constituting it.4

Thus, the very existence of such a statute, intended to further, and as an overt act evidencing, a criminal conspiracy against society, is itself a perfect legal justification for disobeying its commands, as well as any purported court order or other mechanism aimed at its enforcement.

Disobedience to such a statute, order, or other mechanism could not be a crime, because "[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). "An unconstitutional act is not a law; it binds no one". Huntington v. Worthen, 120 U.S. 97, 101-02 (1887). "An unconstitutional law is void, and is as no law. An offence created by it is not a crime." Ex parte Siebold, 100 U.S. 371, 376 (1880), quoted with approval in Fay v. Noia, 372 U.S. 391, 408 (1963).

Observe that, in the course of this argument, the Second Amendment, "compelling governmental interests", and "least-restrictive means" find no place at all, because the first is not necessary and the other two are not proper.

As a matter of practical politics-or, perhaps more descriptively, of criminal politics-when America reaches the point at which Congress or some police-state agency Congress has created to do the dirty work unconstitutionally demands: "Turn them all in!" the only response for patriots short of accepting the "due Subjection and Obedience" of slavery will have to be "MOLON LABE!" ("Come and get them!" as the Spartan King, Leonidas, told the Persian envoy at Thermopylae).

To be sure, even up to an Angstrom Unit before that point is reached, patriots should still seek relief in the courts (and, should time permit, in legislatures and voting booths), if only to prove to the world who are the aggressors. Every lawful avenue of recourse, no matter how tortuous, must be explored to its very end.

But, even now, one can anticipate that, in the midst of such a crisis, the types of judges who will infest the Bench will lift not a solitary finger to assist common Americans-just as their precursors refused to help, but instead facilitated and covered up the wrongdoing, when Franklin Roosevelt seized Americans' gold in 1933-1934.5

The great question facing this country is whether, by reliance on something more efficacious than simply a part of the Second Amendment, "the right of the people to keep and bear Arms"-and with it all of Americans' liberties-can be protected and advanced short of a new Lexington and Concord.

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".

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[s]" 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.

Furthermore, nothing in the Constitution suggests that Congress must "raise and support… Armies", or "provide and maintain a Navy", should it conclude that neither is "necessary and proper". See Article I, Section 8, Clause 18.

To the contrary: the Constitution requires that, even when Congress does "raise" an army, "no Appropriation of Money to that Use shall be for a longer Term than two Years". Article I, Section 8, Clause 12.

This enables the House of Representatives-the House of Congress electorally closest to the people and (in political theory, at least) most concerned with protecting their lives, liberties, and property-to prevent an army from continuing in existence when it serves no purpose that justifies its expense, or when it threatens Americans' freedoms.

Similarly, had the Founding Fathers contemplated a navy as a permanent establishment, they would not have bothered to empower Congress "[t]o… maintain" one. So, Congress can "raise Armies" and "provide a Navy" if it deems that course prudent; but it can also refuse to do so, or refuse to continue to "support Armies" or "maintain a Navy".

Distinguishably, though, the Constitution plainly presumes that "the Militia of the several States" existed as of its ratification, and will continue to exist thereafter, whatever Congress may do or not do.

Which, of course, follows from the historic definition of the "Militia" as the whole body of the people of each State, armed and accoutred for military service with appropriate firearms and ammunition always maintained in their personal possession.

Moreover, "[t]o provide for organizing… the Militia", or for "arming, and disciplining" them, cannot license Congress to proceed in whatever whimsical manner its Members may choose.

First, in light of the critical purposes the Militia may be called upon to serve-"to execute the Laws of the Union, suppress Insurrections and repel Invasions"-the Constitution cannot possibly contemplate, or tolerate, complete Congressional inaction on this score.

See Article I, Section 8, Clause 15. Nonfeasance is not an option. For with the delegation of any constitutional power comes the imposition of a corresponding constitutional duty to exercise that power whenever necessary and proper.

Compare United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), with the Preamble ("insure domestic Tranquility" and "provide for the common defence"); Article I, Section 8, Clause 18; and Article VI, Clause 3 ("Oath or Affirmation, to support this Constitution").

Surely, Congress cannot have exercised its constitutional power, and fulfilled its constitutional duty, "[t]o provide for organizing, arming, and disciplining, the Militia" if they remain unorganized, unarmed, and undisciplined, whether in whole or in large part.

Second, the Constitution cannot possibly contemplate, or tolerate, Congressional negligence or error, either. Misfeasance, too, is not a option. The Constitution does not define the verbs "organizing, arming, and disciplining, the Militia". But, that does not leave Congress wholly at sea.

In the Founding Fathers' minds, the proper definitions naturally arose from the Colonial and State history with which all Americans of their era were intimately familiar.

So, "organizing, arming, and disciplining, the Militia" constitutionally means proceeding according to the historic pattern of American experience: the whole body of the people, armed and trained along contemporary military lines with appropriate firearms and ammunition always maintained in their personal possession.

Because if the whole people-or any significant subset of them, for that matter-are not "organiz[ed], arm[ed], and disciplin[ed]" according to that pattern, they do not constitute "Militia" in the American sense of that term at all.

Third, under no circumstances can the Constitution possibly contemplate, or tolerate, Congress's refusal to follow the law. Malfeasance is beyond the pale.

Inasmuch as the power "[t]o provide for organizing, arming, and disciplining, the Militia" does not allow Congress to leave the Militia unorganized, unarmed, and undisciplined through sloth or incompetence, it most assuredly precludes Congress from actually disorganizing, disarming, or disarraying the Militia-whether this results from intentional malevolence or from willful blindness to or reckless disregard of the consequences of its actions.

"To provide for organizing, arming, and disciplining, the Militia" are affirmative verbs. And "[a]ffirmative words are often, in their operation, negative of other objects than those affirmed". Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).

Thus, those words not only delegate a power, and impose a duty, but also create an absolute disability. Under no circumstances may Congress leave the Militia unorganized, unarmed, or undisciplined-let alone knowingly and intentionally impose such conditions.

Of the three requirements for the Militia-organization, arms, and discipline-arms are the most important. Organization and discipline are next to useless without arms.

Even a rabble in arms can give some good account of itself, and can slowly organize and develop discipline while it maintains an minimally adequate posture of self-defense. But unarmed people are almost always helpless, hapless, and hopeless.

Although Congress has a constitutionally duty to "arm[ ]" the Militia, and a constitutional disability to disarm them, it need not act directly. "To provide for… arming… the Militia" does not necessarily require actual "arming" of individuals by the government itself from public arsenals.

(Perhaps the necessary involvement of the government is why Congress's power as to an army or navy is "[t]o raise" or "[t]o provide" simpliciter, rather than "[t]o provide for raising".)

Indeed, for the government to arm the Militia is probably the politically least prudent way for Congress and the States to fulfill their responsibilities on that score, as well as being the course least in keeping with historic practices.

Instead, Congress and the States can and ought to "provide for… arming… the Militia" by relying on the method universally used in the pre-constitutional Colonial and State Militia Acts: individual self-help through resort to private commerce in arms and ammunition in the free market.

Requiring members of the Militia to arm themselves largely shifts the economic burden from taxpayers to those individuals who have the ability to pay. More importantly, though, it protects all individuals from the sudden imposition of usurpation and tyranny that would be possible were the provision of arms a governmental monopoly.

After all, for individuals throughout the Nation to arm themselves for Militia purposes demands

* a large number of private manufacturers, distributors, and retailers of arms and ammunition;

* a nationwide free market for commerce in arms, ammunition, and accoutrements;

* no general "gun-control" statutes at the National, State, or local levels; and

* a judicial system that does not hold the production, sale, possession, and use of firearms and ammunition hostage to predatory trial lawyers.

Unfortunately, one important condition for constitutionally "arming… the Militia" is almost totally absent in contemporary America: namely, the legal requirement found in every pre-constitutional Militia Act, that common Americans purchase (or otherwise acquire), possess in their homes, and regularly train with their personal firearms, or be subject to fines or other penalties.

But an anti-constitutional condition is all too prevalent: namely, general "gun-control" statutes that deny to almost everyone the right to possess or use certain types of firearms (such as "assault weapons"), kinds of ammunition, or accoutrements (such as "high-capacity magazines") within some jurisdictions, or that totally disarm large segments of the population on the basis of some geographical criteria (such as "gun-free zones") or legal disabilities attaching to the person.

The present plethora of general "gun-control" statutes at the National, State, and local levels arises from politicians' and judges' disregard of the precept that "the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution." Williams v. Rhodes, 393 U.S. 23, 29 (1968).

For example, at the National level most "gun-control" statutes have been enacted under color of Congress's powers "[t]o lay and collect Taxes" or "[t]o regulate Commerce". Article I, Section 8, Clauses 1 and 3.

In effect, this sets aside the explicit power and duty to "arm[ ] … the Militia" in Article I, Section 8, Clause 16 in favor of a contradictory power to "disarm[ ]" everyone hidden in Clauses 1 and 3.

Apparently, no one among Washington's power elite has noticed (or cares to take into account) that "[t]he fundamental [constitutional] principles" in Clauses 1, 3, and 16 "are of equal dignity, and neither must be so enforced as to nullify or substantially impair the other".

Dick v. United States, 208 U.S. 340, 352 (1908). Or, that no rational constitutional jurisprudence can employ Clauses 1 and 3 so as to transmogrify the affirmative duty of Clause 16 into a negative power.

Modern legislators, judges, and law professors may be that illogical or dishonest. But to impute such stupidity or duplicity to the Founding Fathers is defamatory in the extreme.

States and localities cannot enact general "gun-control" statutes either, because such statutes directly interfere with Congress's fulfillment of its duty "[t]o provide for… arming… the Militia"-indeed, undermine the very existence of the Militia as the armed body of the people-which the Constitution mandates and requires the States and their subdivisions to treat as "the supreme Law of the Land".

Article VI, Clause 2. Moreover, the permanent incorporation of "the Militia of the several States" into the Constitution requires the States to keep up their Militia, whatever Congress may do or not do.

Because, in American historical experience, the whole population of free males comprised "the Militia of the several States", and was always armed to almost the last man with the latest firearms suitable for military service, the States must maintain at least that level and quality of armament throughout their citizenry-which result, of course, general "gun-control" statutes are intended to prevent.

That is, the existence of "the Militia of the several States" as a permanent part of the Constitution's federal structure renders all general "gun-control" statutes unconstitutional.

Congress has a further constitutional power and duty, when "necessary and proper", "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions". Article I, Section 8, Clauses 15 and 18.

Self-evidently, it would be next to useless to "call[ ] forth the Militia" for these purposes of "homeland security", were the Militia not properly "organiz[ed], arm[ed], and disciplin[ed]". So the constitutional mission of the Militia underlines the absolute necessity for Congress to secure "the right of the people to keep and bear Arms", by "provid[ing] for… arming… the Militia".

(c) The President. The President cannot participate in-or even passively tolerate-any program aimed at disarming common Americans because, by historic definition, "the Militia of the several States" consist of the body of the American people, armed and trained along contemporary military lines with appropriate firearms and ammunition always maintained in their personal possession.

"The President shall be Commander in Chief… of the Militia of the several States, when called into the actual Service of the United States". Article II, Section 2, Clause 1.

So, for the President to cooperate in disarming, or to stand idly by while others disarm, the people would be for him to help destroy the Militia, and thereby eliminate his own position as "Commander in Chief" thereof, in direct defiance of his own constitutional appointment. It would hardly overstate the case to label such constitutionally self-contradictory behavior "legally psychotic".

Moreover, the President also labors under a duty to "take Care that the Laws be faithfully executed". Article II, Section 3. Performance of this duty may require that the Militia be "call[ed] forth… to execute the Laws of the Union". Article I, Section 8, Clause 15.

The efficacy of the Militia in this service will require that they be properly "organiz[ed], arm[ed], and disciplin[ed]". Clause 16. Therefore, the President cannot enforce, or allow others to enforce, any general "gun-control" statute (National, State, or local) that results in disarming all or a large part of the people who comprise the Militia.

For any such statute must be unconstitutional. 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).

If "not a law" at all, then such a "gun-control" statute cannot possibly be among "the Laws [to] be faithfully executed" by the President. Rather, the President must "execute[ ]" "the supreme Law" of the Constitution to set such a inherently invalid statute aside entirely and permanently, and to prevent its enforcement in any particular against anyone.

(d) The Courts. Perhaps the less said about the contemporary courts the better. To expect them to recognize and protect, let alone to advance, "the right of the people to keep and bear Arms" plumbs the depths of blindness and folly.

Modern judges are drawn from the legal intelligentsiia, the vast majority of whom are corrupted and compromised by anti-constitutionalist ideology, the lust for power, outright personal greed heedless of its anti-social consequences (especially the so-called "plaintiffs' bar" of personal-injury trial lawyers), and a thoroughgoing contempt for common Americans and this country's traditions.

Moreover, in the main they wallow on the Bench in grandiose self-importance and narcissistic self-absorption that rivals the rank self-adulation characteristic of talentless movie stars and tone-deaf pop vocalists.

Worst of all, most of them utterly belie their titles of "Your Honor" by practicing continual, cynically calculated intellectual dishonesty-a vice for which vanishingly few are ever held accountable, as the errors or lies of one rotten judge are appealed to some other equally unscrupulous jurists, in most cases simply to be covered over with a whitewash compounded of different errors or lies.

Assuming for the sake of argument, though, that one could successfully appeal to rationality and fairness in the courts, four conclusions would be undeniable:

* "The right of the people to keep and bear Arms" cannot be subjected to any "compelling governmental interest test", because neither the General Government nor any State can possibly put forward any "interest"-and certainly no "compelling interest"-for destroying or debilitating "the Militia of the several States" that the Constitution incorporates in its federal system as a governmental institution or entity.

If We the People ever deceive themselves into believing that they have a "compelling interest" in abolishing or emasculating their own Militia, they must amend the Constitution to that effect. Article V.

* No firearms, ammunition, or accoutrements can be banned, confiscated, punitively taxed, or subjected to licensing or registration simply on the basis of whatever "bad names" "gun-control" wordsmiths may fashion to demonize them.

For essentially any firearm, ammunition, or accoutrement could be used by "the Militia of the several States" in one of their many roles-particularly as guerrillas, partisans, or resistance fighters opposing usurpation and tyranny-and therefore must be freely available to members of the Militia, in their personal possession, at all times.

* No warrant exists for the establishment of almost all "gun-free zones", there being no place in this country where the laws need not be enforced (especially against violent criminals and psychopaths), where it might not be necessary to suppress sudden insurrections, or especially where Americans must not be ready at all times to repel invasions in the persons of agents of global terrorism.

* Finally, the constitutional reasoning of Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76-78 (1869), absolutely prohibits Congress from enacting general "gun-control" statutes that destroy or debilitate "the Militia of the several States".

Lane County teaches that Congress cannot exercise its monetary power so as to require the States to employ Congressional legal-tender paper currency, in preference to some other media of exchange they desire to use in the performance of their sovereign functions-even when the Supreme Court holds that Congress enjoys a power to emit such currency, and the Constitution explicitly withdraws from the States all power to create any form of money on their own.

Article I, Section 10, Clause 1. If so, then Congress cannot require the States to suffer their Militia to be disarmed, either, when Congress itself has no power whatsoever to "[dis]arm[ ]" the Militia, but only a power to "arm[ ]" them; when the Constitution explicitly recognizes the Militia as "the Militia of the several States", not "of the United States"; when no provision of the Constitution disables the States from maintaining their Militia with proper armaments; and when the Militia comprise one of the two great sovereign powers of any government: the Power of the Sword, and the Power of the Purse.

Indeed, inasmuch as Lane County holds that Congress cannot interfere with any State's exercise of her sovereign Power of the Purse, how Congress could interfere with any State's exercise of her even more important sovereign Power of the Sword passes understanding.

 

The above article is Part 1 of 3

Continue to Part 2

Continue to Part 3

 

Edwin Vieira, Jr. - March 30, 2013 - posted at FromTheTrenchesWorldReport

 

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.

 

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Submitted by SadInAmerica on Sat, 03/30/2013 - 5:10am.