The Militia Of The Several States Guarantee The Right To Keep And Bear Arms. Part 7 of 8
The highest source of the law on this subject is the injunction: “Thou shalt love the Lord thy God, and thy neighbor as thyself.” The right of the individual to defend himself becomes, upon his assumption of familial responsibilities, the duty to defend the members of his own family. His justifiable love of self that compels him to protect his own existence must extend to them, too. In like wise, in any organized community that recognizes a mutual self-interest among its members, if any citizen may claim a right to expect defense from all, in fair compensation he must fulfill a concomitant duty to assist in the defense of everyone else. Given their source, to contend that this reciprocal right of self-preservation and duty of mutual protection are not natural and inherent within society–as a consequence of its being “society,” rightly understood–lacks cogency.
The Founding Fathers’ legal mentor, Sir William Blackstone, made the same point in terms of the specific laws of England. After identifying “the principal absolute rights which appertain to every Englishman”–namely, “the rights of personal security, personal liberty, and private property”–he explained that in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the [English] constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights * * * . Commentaries on the Laws of England (American edition, 1771), Volume 1, at 140-41.
Among these “auxiliary rights” of Englishmen, Blackstone explained, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which * * * is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. In these * * * consist the rights, or, as they are frequently termed, the liberties of Englishmen; liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man * * * lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. * * * And * * * to vindicate these rights, when actually violated or attacked, the subjects of England are entitled * * * to the right of having and using arms for self-preservation and defence.
Ibid. at 143-44.
The pre-constitutional Colonial and State Militia Acts put into practical form “the [English] right of having and using arms for self-preservation and defence”–while showing how different from its practice in England the “public allowance, under due restrictions” was in America. Unlike the situation in England, in America firearms were not only “suitable” for all men (excepting slaves), no matter their “condition and degree,” but also requisite. And “such [firearms] as were allowed by law” included the most modern military-type arms then available in the free market. Thus, in America “the natural right of resistance and self-preservation” not only existed but also suffered no “due restrictions” in positive law. Rather, the Militia Acts extended it into a nearly universal duty. Such an extension of “the natural right of resistance and self-preservation” could not change its innate character, however, only transmit that character to its correlative duty.
That “the right to keep and bear Arms” is a natural right and duty the Declaration of Independence confirms. Through that document, the States “assume[d] among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle[d] them.” That this could be accomplished, according to the principles of “the Laws of Nature and of Nature’s God,” in no way except through exercise of “the natural right of resistance and self-preservation” the Declaration makes clear: “[W]hen a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce the[ people] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” That the Declaration couples “it is their right” with “it is their duty” cannot be nothing more than a slip of the pen.
Moreover, if the States’ independence–and, as a consequence of that, their power to enact their own constitutions, statutes, and other laws, binding on their own people–derived from “the Laws of Nature and of Nature’s God,” then, as a condition of their legitimacy, those constitutions, statutes, and other laws themselves must conform to “the Laws of Nature and of Nature’s God.” Which means inter alia that they must recognize, embody, protect, and empower “the natural right of resistance and self-preservation,” and its corresponding duty.
Even if one humors the skeptic by imagining that, all this legal theory and history notwithstanding, pre-constitutional Colonial or State legislatures might have denied the individual right and duty to keep and bear arms in part or in whole, nothing changes. Because in fact those legislatures never did, or even attempted to, deny that right and duty. A failure ever to exercise a supposed power is convincing evidence that no one in authority ever believed that such a power existed. FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 513 & n.20 (1949). Similarly, whether or not the Constitution might not have recognized the individual right and duty to keep and bear arms, in fact the Constitution does recognize them, because it recognizes “the Militia of the several States,” all of which for 150 years were based on the principle of near-universal possession of firearms by private individuals.
By recognizing “the Militia of the several States,” the Constitution imposes a permanent duty on nearly all Americans to serve therein, according to the principles the pre-constitutional Militia actually put into practice. One part of that essentially governmental duty is to be armed, a responsibility emphasized and effectuated by the power (and duty) of Congress “[t]o provide for * * * arming * * * the Militia.” Article I, Section 8, Clause 16. Every individual subject to the constitutional duty to be armed in “the Militia of the several States” necessarily enjoys a constitutional right as against every public official not to be hindered, and (through Clause 16) a constitutional right to be assisted, in the performance of that duty. No statute, executive action, or judicial decision can possibly change that. Therefore, the “right of the people to keep and bear Arms” is ABSOLUTE, because it is the consequence or corollary of a constitutional duty that applies both to the people and to every public official. Indeed, to argue that any other part of any government at any level may disarm the one branch of the government that the Constitution itself specifically requires to be armed is self-contradictory nonsense.
The absolute nature of “the right of the people to keep and bear arms” is precisely what one would expect from the Second Amendment’s precept that “[a] well regulated Militia, [is] necessary to the security of a free State”. As American history teaches, “[a] well regulated Militia” is composed of an armed people. That being so, “the security of a free State” requires, and for all practical purposes must be equated with, an armed people. Therefore, “a free State” is one in which everyone possesses his own firearms, knows why he is armed, opposes every attempt to disarm him, and with his arms and training fulfills his duties to provide “security” in just proportion with everyone else. As a consequence of this, in “a free State” public officials have no legal authority whatsoever to disarm the people through general “gun control.” So, in “a free State,” “the right of the people to keep and bear Arms” must be absolute, because anything less than an absolute right could not provide adequate “security.” Anything less than an absolute right would always enable a police state to develop, because the police would inevitably end up “outgunning” common citizens (as is the obvious goal of “gun controllers” today).
From all this, several important conclusions follow–
• “[W]ell regulated Militia” are organized and operate according to the historic principles of “the Militia of the several States.” That is, nearly everyone in the community is required to be armed, trained, and assigned definite duties for the provision of “homeland security” as component parts of the government. In this structure, arms are the key component, because training for the use of arms is useless without the arms, whereas armed men can often acquire training even “on the job” through the use of their arms.
• “[T]he right of the people to keep * * * Arms” is a right of private possession (and usually ownership, too) of firearms and ammunition in individuals’ homes, ready and available for use at all times, rather than stored away in government arsenals to be handed out only when some public officials deem it necessary. Private possession is absolutely necessary for “the security of a free State,” because only private possession can maximize both readiness and deterrence–particularly against usurpers and tyrants, who historically have proven the most dangerous threats to every “free State.”
• “[T]he right of the people to * * * bear Arms” encompasses, at the minimum, the freedoms to go abroad individually, and to assemble, with arms for all Militia purposes (the first being necessary to the second). The reasons for this are obvious: The Militia operate through individuals with arms in their hands. In the nature of things, most Militia operations must occur outside of individuals’ homes. The awareness on the part of potential criminals, terrorists, usurpers, and tyrants that untold numbers of Militiamen are or could be carrying firearms, openly or concealed, in public and private places deters anti-social action. So every single individual who might carry a firearm outside his home thereby performs part of a vital Militia function.
Furthermore, because the Constitution requires Congress “[t]o provide for * * * arming * * * the Militia,” and prohibits the States and their subdivisions from interfering with the fulfillment of Congress’s duties, governments at all levels must recognize, facilitate, and protect this activity–by eliminating almost all “gun-free zones,” providing the widest latitude for private individuals to carry firearms both open to common observation and concealed, and so on.
• The “Arms” the people may “keep and bear” include all firearms that could serve Militia purposes–from the firearms appropriate for a regular light infantryman, to whatever arms might prove useful for someone performing the functions of a policeman or security guard, or a guerrilla, partisan, franc-tireur, or resistance fighter.
• “[T]he people” who enjoy “the right * * * to keep and bear Arms” includes all common Americans. No exclusion can exist on the basis of servitude (Amendment XIII), race (Amendment XIV, Section 1), sex (Amendment XIX), or any but the most serious legal disability, such as proven disloyalty or the commission of a crime for which slavery or involuntary servitude is an appropriate penalty.
Moreover, no one can be denied “the right * * * to keep and bear Arms” simply because he is not sufficiently “able bodied” to serve in the Militia. This is not only because what constitutes being “able bodied” turns upon the service to be performed, which is a matter that depends upon evaluation of person, time, place, and circumstances, rather than application of an arbitrary label; but also because no pre-constitutional Militia Act ever disarmed any free man simply because he was not “able bodied”. If not being subject to serve in the Militia because of some physical disability did not disqualify a free man from possession and ownership of firearms independent of the Militia then, it cannot do so now. To the contrary: That a physical disability never disqualified a free man in pre-constitutional times from possession and ownership of firearms proves that “the right of the people to keep and bear Arms” was not then considered solely a consequence of service in the Militia, but instead was always understood as a precondition for forming the Militia in the first place.
• “[T]he right of the people to keep and bear Arms” in and for the purposes of “[a] well regulated Militia” does not define the full extent of that right. For, plainly, firearms suitable for use in the Militia can be used–and where the Militia are properly functioning are always at hand to use–for personal protection, hunting, target shooting, or other “sporting” or “recreational” pastimes. Besides the facts that personal protection is, at base, a Militia use at the individual level, and that most other normal uses of firearms sharpen the users’ skills for Militia use, no pre-constitutional Militia Act ever disallowed such uses for Militia arms.
• The Second and the Thirteenth Amendments work together to outlaw general “gun-control” legislation by both the General Government and the States. A people held in slavery live in the very opposite of “a free State.” General “gun control” enforced against innocent individuals is the antithesis of “[a] well regulated Militia” because it makes the existence of such a Militia impossible. Because “[a] well regulated Militia, [is] necessary to the security of a free State,” in its absence such a State cannot survive. Therefore, general “gun control” must be unconstitutional, as a means to impose or maintain slavery. And assuming for purposes of argument that some “compelling interest test” were relevant, no level of government can assert any “compelling interest” in imposing general “gun control,” because the only constitutional “interest” that justifies slavery or involuntary servitude is “as a punishment for crime whereof the party shall have been duly convicted.”
• The Second and the Fourteenth Amendments also work together to outlaw general “gun-control” legislation by the States, for two reasons. First, Section 1 of the latter Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.” Among those “privileges and immunities” is “the right * * * to keep and bear Arms.” See Scott v. Sandford, 60 U.S. (19 Howard) 393, 449-50 (1857). Another is the “immunit[y]” from slavery or involuntary servitude “except a punishment for crime.” So the Privileges and Immunities Clause bans all general “gun-control” legislation.
Second, Section 1 of the Fourteenth Amendment also provides that “[n]o State * * * shall deprive any person of * * * property.” A principle of the pre-constitutional Militia Acts–and therefore of “the Militia of the several States”–is each individual’s actual ownership of a firearm (where within his personal financial capability), as well as his possession thereof. So no conceivable “due process of law” could justify expropriation of Militia firearms individuals own, because to do so would necessarily destroy “the Militia of the several States,” the permanence of which the Constitution presumes. Self-evidently, no State or local government can assert any “compelling interest” in enacting legislation that cannot amount to “due process of law.”
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Written by Dr. Edwin Vieira, Jr., Ph.D., J.D.