On Sun, 4 Nov 2001, Reese wrote:
> States are not prohibited from having a militia, the National Guard is an
> organized militia, until such time they are federalized, at which point
> they fall under the Army's Chain of Command.
No, the can't except in cases of invasion.
> Why do you think all or nearly all states have a National Guard, if it is
> prohibited as you claim?
Technically the National Guard is unconstitutional. It does not qualify as
the 'militia' and ONLY the army, navy, and militia have been authorized
(technically an independent air force is also unconstitutional without an
amendment) by the Constitution (or Congress through an amendment) to date.
The Constitution & Gun Rights: It's bigger than the 2nd alone
This document is an ongoing project where I take comments and observations
from others and post their questions and my replies. Some of this material
is old and some is new. It is intended to demonstrate that when the
Constitution as a whole is applied to sensitive issues it in fact provides
clear direction on the limits and character of the relation between the the
three arms of the government of the United States; federal, state, and
individual. I assume that anyone commenting on this document is giving their
explicit permission to include them with my replies unless otherwise noted.
I would prefer that all discussion take place on the Cypherpunks public
mailing list. I will submit all my responces to submissions to that list. If
you don't wish to discuss this issue in a public forum please do not respond
to me. I have no interest in private discussion on this topic.
This country is going through a crisis of civil liberties and a fundamental
loss of faith in the tenets of democracy. It is becoming more fascist (ie
public management of private property) on a daily basis. In the near future
it could become completely socialist (ie public management of public
property and elimination of private property) in the name of the greater
good. The belief that the needs of the many outweigh the needs of the few or
the individual is in direct conflict with both the spirit and words of the
Constitution. Legislative, judicial, and executive branch decisions and
actions speak to this on a daily basis. One of the most controversial topics
is the private ownership of weapons and the duty of the government to
regulate the same. The current discussion on both sides is limited solely to
the 2nd Amendment. Unfortunately this is a stillborn position because it
misses fundamental issues and questions. To address those I have listed each
of the relevant sections of the Constitution and the Bill of Rights. Perusal
of these make it clear that the right of the individual to own and bear arms
with no interference or regulation is a fundamental right of every American.
This right is justified by a long history of abuse by political systems of
the individual as well as a continous sequence of physical assaults on the
citizenry.
It is worth making special note that the Presidential claim to executive
privilige regarding the use of military forces without Congressional
permission is unconstitutional (see Article II). The Constitution clearly
states the President is the commander in chief of the armed forces only
after they have been called into action. And only Congress may call them
into action unless it can not be conveined. The President of the United
States is not in the chain of command of the military forces without
specific authorization from Congress. Until such time as that is given only
Congress has the authority to direct and organize military activities. This
means that the President may direct military forces only until Congress
convenes. At that point Congress must decide whether to agree to commit the
forces.
Amendment 2, 4, & 9 provide in and of themselves sufficient grounds to find
any federal involvement in the purchase, possession, or operation of a
weapon to be unconstitutional. One of the most specious argumenst in this
discussion is that 'the people' in the 2nd Amendment is not to be construed
as meaning the individual. However, it is clear from the Constitution itself
and other amendments, such as the 4th, that this simply is not so. The term
'the people' means that the decision regarding such issues is to be made at
the level of the individual. In other words whether a particular individual
agrees to participate is completely voluntary.
THE CONSTITUTION OF THE UNITED STATES
We the people of the United States, in order to form a more perfect
union, establish justice, insure domestic tranquility, provide for the
common defense, promote the general welfare, and secure the blessings
of liberty to ourselves and our posterity, do ordain and establish
this Constitution for the United States of America.
[ Note that the intent of the Constitution, and by extension those who
represent us, is to provide freedom of choice (i.e. liberty) for each
individual (i.e. 'ourselves and our posterity'). This means that any
claim that 'the people' does not refer to the individual and their
right to make individual choices is specious and misdirected. ]
Article I
Section 8. The Congress shall have power to lay and collect taxes,
duties, imposts and excises, to pay the debts and provide for the
common defense and general welfare of the United States; but all
duties, imposts and excises shall be uniform throughout the United
States;
To declare war, grant letters of marque and reprisal, and make rules
concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use
shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval
forces;
To provide for calling forth the militia to execute the laws of the
union, suppress insurrections and repel invasions;
[ Note it says 'the militia', not plural and definitely not state oriented
since states are prohibited from raising or supporting troops. Note that
it specificaly directs Congress and the President to use the Militia for
internal issues only. ]
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 the officers, and the authority of training the militia
according to the discipline prescribed by Congress;
[ This says Congress organizes, armes, and disciplines the militia - again
nothing to do with the states and no implication of plurality. The only
job the states have is appointing officers. One can argue over the wording
of the training since it is ambigous. I interpet "..., reserving to the
states repesctively, the appointment of the officers, .." as being a
single clause and not carrying over to "... authority of training ...". ]
No state shall, without the consent of Congress, lay any duty of
tonnage, keep troops, or ships of war in time of peace, enter into any
agreement or compact with another state, or with a foreign power, or
engage in war, unless actually invaded, or in such imminent danger as
will not admit of delay.
[ This last paragraph is of special importance. It directs the states to
provide for their self defence during times of truly imminent danger.
There is also the implication of immediate responce. Yet the state can
not keep troops or even collect taxes to this end. This also excludes the
Militia since it is under federal control and can't be used by the states
without federal consent. In other words they are not to base their responce
solely on state or federal employees. The implication is that each state is
directed to provide for individual firearms ownership.
It's also worth noting that if the US is actualy invaded and the federal
forces are activated the states are still directed to raise forces
independently of the federal forces, and these forces would be under
state control and operated in parallel with federal forces. In addition
this delegates the states to independant resistance even if the federal
authorities surrender. It is a fundamental recognition of the states
independence. [1] ]
Article II
Section 2. The President shall be commander in chief of the Army and
Navy of the United States, and of the militia of the several states,
when called into the actual service of the United States; he may
require the opinion, in writing, of the principal officer in each of
the executive departments, upon any subject relating to the duties of
their respective offices, and he shall have power to grant reprieves
and pardons for offenses against the United States, except in cases of
impeachment.
[ This last paragraph describes how the President takes control of the
military. It is only after Congress agrees to release the authority.
Normal day to day training and patrol duties are responsible to Congress
only. ]
Article IV
Section 4. The 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.
[ Note this says that federal forces can not be employeed within a state
without the explicit permission of the state government during periods of
domestic violence. In other words "rioting in the streets" is not a
sufficient condition for forced federal involvement through martial law.
The state legislature is the prefered authority unless it can't be convened
in time. In that case the state governor can make the decision but as soon as
the state legislature is convened he's out of the picture. This means that
states always have the option of refusing federal assisstance. This means the
various forced tax and funds refusal threats of the federal government are
unconstitutional. This means states have the option of opting out of any
federal gun control regulations. ]
THE BILL OF RIGHTS
The Conventions of a number of the States having, at the time of
adopting the Constitution, expressed a desire, in order to prevent
misconstruction or abuse of its powers, that further declaratory and
restrictive clauses should be added, and as extending the ground of
public confidence in the Government will best insure the beneficent
ends of its institution;
Resolved, by the Senate and House of Representatives of the United
States of America, in Congress assembled, two-thirds of both Houses
concurring, that the following articles be proposed to the
Legislatures of the several States, as amendments to the Constitution
of the United States; all or any of which articles, when ratified by
three-fourths of the said Legislatures, to be valid to all intents and
purposes as part of the said Constitution, namely:
Amendment II
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.
[ This one really speaks for itself once you've understood the rest. They
are actualy speaking of *two* seperate entities - the single federal
Militia *and* the individual citizen. They are *not* one and the same. ]
Amendment III
No soldier shall, in time of peace be quartered in any house, without
the consent of the owner, nor in time of war, but in a manner to be
prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
[ Our current society has a problem with what is understood to be
'reasonable'. This is a strong indication that we need to create a new
amendment to better describe the interface, expectations, and limits
of actions regarding state representatives and the individual. The only
other option is to eliminate laws respecting consensual crimes such as
individual drug use, abortion, etc.
Arguments based on 'community standard' are inherently broken. It implies
the community has some homogenious standard, there is certainly no
indication of authority to sample the populate with respect to this
question. The religious and free speech and press clauses
prohibit it. It further prohibits laws and acts respecting law
enforcement based on statistical averages, profiles, mass searches,
bumper stickers, public statements not inciteing something worse than
domestic violence, etc. Note that this *does* give Congress the option of
training the militia for operations involving nuclear, biological, or
chemical attack for domestic use. (I believe that any such use must
not allow weapons for other than personal defence to these federal
forces. No tanks, bombs, missiles, etc.)
You can't use an individuals beliefs as a basis for law. In that case, with
no sample, the only question is would any citizen object to the
behaviour? It is obvious the question must be answered in the negative
since you have such an example at hand from the community. This effectively
eliminates consensual crimes. If an activity does not cause physical harm
to a person, their property, or a voluntary public trust it can't be made
against the law at the federal level. (I don't believe a coersive public
trust can exist under our Constitution. You can't punish a state or throw
a citizen in jail because they object to participate in federal programs.) ]
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
[ This one is really short and sweet. If anybody has a right then everybody
has the right. There are no womens rights, gay rights, or minority rights;
only human rights.
This amendment prevents the government from even addressing what a persons
rights are by the simple expedient that it prevents the federal or state
government from even enumerating what they aren't. In other words unless
the authority over some activity is proscribed in the Constitution the
question of jurisdiction and decision are the individual states.
It also means that the Supreme Court is prevented from using rulings that
are of the enumerable type. In other words, simply because there isn't a
directive in the Constitution is not sufficient reason to deny the
individual the right of expression, or choice of execution. So arguments
such as 'assissted suicide" isn't a right because there is no indication in
the Constitution are specious and deny recognized fundamental individual
rights in the 1st Amendment. So, in the case of gun control if there is a
question at the federal level of jurisdiction (ie "What is meant by 'the
people'?) the decision goes to the states and their individual constitutions.
If it's not covererd in their individual constitutions then individuals in
those states may make the decision on an individual basis. The Constitution
is designed to fail-safe under questions of federal authority to the states
or the individual. If Congress can't provide a delegate entry in the
Constitution per the 10 th. it must suggest a constitutional amendment to
the states. The current question of gun control has only two outcomes. Either
individuals have their right to own guns recognized or the Congress and the
state legislatures are required to mold an amendment to clarify the 2nd
Amendment. The states can always stop federal aquisition of new
authority at this point by simply refusing to put the amendment up for vote.
At this point the states have a tacit admission of their supreme authority
in such questions. ]
Amendment X
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states
respectively, or to the people.
[ This amendment severely limits what the federal level of authority covers.
It requires the Congress to provide a delegate, one or more sentences,
in the Constition for all laws (and I believe for all suggested bills as
well). it further specifies that in questions of dispute the decision goes
to the individual states and their republican governments (ie state
constitution). If the indvidual states don't regulate the activity it is up
to the individual to participate voluntarily.
The United States of America is a balkanized collection if independant
states who voluntarily give up limited authority to the federal level, they
must explicitly agree to this to become a state. ]
The above document was submitted to the Cypherpunks Distributed Remailer, it
has been expanded since that time. As a result I received various replies.
My comments on the replies are included below along with quotes from the
replies to clarify context.
From: Jim Choate
Subject: CDR: Re: Inferno: The Constitution & Gun Rights: It's bigger than the 2nd
alone (fwd)
Date: Sat, 9 Oct 1999 19:17:40 -0500 (CDT)
> Date: Sat, 09 Oct 1999 17:04:05 -0500
> From: Sean Roach
> Subject: CDR: Re: Inferno: The Constitution & Gun Rights: It's bigger than
> the 2nd alone (fwd)
> I was under the impression that that applied only to the army. I
> thought that it was the intention to keep the navy going full time.
There was no intent not to keep the army going full-time. The intent was to
keep them from getting funding for long periods of time. In other words to
make it harder for them to build a long-term command structure and weapons
cache's (ie hide trusted soldiers away for rainy days). The army is intended
for repelling invasions and insurrections, how often do those happen and how
many last more than two years? If an actual invasion were to take place
martial law would be invoked and the budget limits would be irrelevant at that
point.
But your point is true enough, and I was hoping somebody would bring this
aspect up. It has some interesting points that don't seem to have been
discussed. If you or others know of references I'd appreciate a vector.
If we accept this view (which I have no problem with, it'd be hard for a
Navy to invade Kansas - navies are self limiting) we are left with
joint-contracts that involve the army and navy are unconstitutional. The other
side would be that the navy must accept the more strict contractual limitations
imposed on the army by the Constitution (what I actualy prefer because of
new weapons systems). The intent is to keep the army on a short leash and to be
able to simply bypass this by working with other arms of the military would be
contrary to the Constitutions intent. One could transfer all the army soldiers
to navy command and impliment an oppressive regime that way. I don't believe
that was what was intended.
It also raises the fact that since the Army Air Corp was turned into the Air
Force (and this applies to the Navy and Marine Corp. as well) and no specific
guidance was made via constitutional amendment as to its budget constraints
it may be unconstitutional as currently implimented. Per the 10th there is
nothing that gives Congress the authority to create new military forces
outside of the army and navy. This should be done via a constitutional
amendment.
What we have today is a joint command that integrates all the various
military forces under one umbrella. That joint command is an arm of the
executive branch and not Congress, that may be unconstitutional itself. This
raises the question of how seperate they are now and how congruent with the
Constitution it actualy is.
So, because of this the Joint Chiefs and the Pentagon may be unconstitutional
as currently implimented, or one could argue that all budgets must be limited
to 2 years. Since the Constitution requires such budgets to be reviewed from
time to time it implies that a full budget review of the military is required
every two years.
> However, it is not my place to say that they would have done this had
> they had the chance.
If you're a citizen of the US not only is it your place it's your duty.
> Too many of our regulations are based on this belief that our founding
> fathers would have seen things "my" way. I hate that the intent of the
> constitution is ignored so blatently, but judging intent is like proving
> opinion.
To quote Jefferson:
The earth belonds to the living, not the dead.
The founding fathers wanted Americans to be free peoples pursuing their own
individual life, liberty, and happiness. It is the duty of all Americans to
protect those rights, even from other Americans. We have to decide the way
*we* want to live and the kind of world our children will inheret. The kind
of world our forefathers had and the decisions they made within that milieu
are good for exemplary review only. Santyana is a good guide. If nothing
else it is clear the fight is never over. No matter what we do our children
will have to fight it all over again on different ground and different
issues. We should at least give them a fighting chance.
I don't believe for a moment the founding fathers felt they had created a
once-and-for-all document. Nor do I believe they felt they were living at
the epitome of technical and social achievement within the total history of
mankind. Part of Jeffersons stock and trade was advancement, it's why he
created the University of Virginia. They knew they couldn't predict the future
and the best peoples to judge it were the ones living it. What they wanted
was a mechanism that would guarantee that the poeple had a say and were not
ruled over by a despot or tyranny. They hoped to give us a good chance at
reaching our individual and social goals, what those goals were are for us to
decide. We, not the founding fathers, have to live with them after all. They
were, if nothing else, simply trying to be good parents (both to a country
and to their biological children) and teach us basic principles.
> I'd like to see something more like the swiss have. Everyone gets
> basic. Perhaps as part of grades 11-12. Some few can stay on in
> administrative roles throughout. And rely entirely on the draft, but
> only for threats on home ground.
I don't believe in the draft, it is coersion and is contrary to the tenets
of the Constitution. An army made of people who don't *want* to fight for
their country will lose. An army of peoples who will die rather than
surrender their liberty will always win, even if they are all killed they
deny the oppressor their goals.
One does not give up democracy to protect democracy.
This does point up one aspect of nuclear defence that has also seldome been
discussed, nuclear suicide. Instead of pointing weapons at other countries
one points the weapons (lot's of them) at oneself. If another country begins
a nuclear conflict (which is inherently unwinnable) the Earth as we know it
will become uninhabitable. Who wants to subject their peoples to the starvation
and other privations that will bring on. It is better to kill oneself
quickly and humanely and in that act poison the well so the enemy suffers at
their own hands and in the worst way. I believe we will never get rid of
nuclear weapons, and shouldn't, and this is the only sane way to control their
use.
[1]
From: Jim Choate
Subject: CDR: Re: An immediate way to end federal gun control? (fwd)
Date: Sun, 10 Oct 1999 09:10:59 -0500 (CDT)
----- Forwarded message from Steve Schear -----
Date: Sat, 09 Oct 1999 22:38:24 -0700
From: Steve Schear
Subject: Re: An immediate way to end federal gun control?
At 10:32 PM 10/9/99 -0500, Jim Choate wrote:
This is not new turf. In my view you are correct, but the federales have
stolen the show through a number of legal shennagans and the refusal of
courts to hold them to their constitutional mandates. For an excellent
review of this topic, see Brannon P. Denning, Palladium of Liberty? Causes
and Consequences of the Federalization of State Militias in the Twentieth
Century, http://www.2ndlawlib.org/journals/denpall.html
----- End of forwarded message from Steve Schear -----
Actualy it's not the same thing at all. As to federalization of state
militia's. This should surprise no-one since states can't keep troops of any
form, even militia. The Constitution is also clear that there can be only
*one* militia and it is a national or federal militia. Even Mr. Denning
doesn't seem to catch the paradox because of his use of 'militias' in the
plural. It also misses the point that individual rights to own weapons is
*not* based on the requirement to have a militia. If the Constitution is
taken as a whole the right of the individual to own and bear arms is in
addition to both the federal military and militia. Also, his claim that
membership in the Militia is universal is faulty as well, membership is
voluntary but by no means mandatory as he implies.
There are a couple of issues with the current implimentation of the National
Guard as well. If it's the militia then there can't be 50 of them organized
by state. If they're not the militia then the state funding that goes
directly into them is unconstitutional. The reality is that at the federal
level there are three military forces; army, navy, and militia.
I am unaware of any assaults on federal gun control laws that use this line
of reasoning; states are required to protect themselves against invasion or
periods of domestic violence not dependant upon federal or even state
resources and that this authorizes private ownership of weapons. If you can
point to a summary of such a case I'd appreciate it.
From: Jim Choate
Subject: CDR: Constitution, gun rights, et al (fwd)
Date: Mon, 11 Oct 1999 18:02:10 -0500 (CDT)
----- Forwarded message from Sean Roach -----
Date: Mon, 11 Oct 1999 16:38:30 -0500
From: Sean Roach
Subject: CDR: Constitution, gun rights, et al
I got this in response to something I said here. I decided to pass
it along to you.
>Date: Mon, 11 Oct 1999 14:03:19 -0400
>From: Steven Furlong
>Subject: Constitution, gun rights, et al
>
>force with trained leaders. You said you don't know the word to
>descibe it.>
>
>Sounds like a militia. In at least some implementations, the private
>soldiers, and I use the term advisedly, trained once in a while to
>familiarize them with group movements, but didn't have any other
>peacetime responsibilities. Officers were also "regular folks" but
>they got more extensive training in tactics, communications,
>logistics, and the whole shebang.
>
>That worked when the basic tools of war were the soldier's personal
>long guns and horse-drawn wagons, and the scope of the militia was
>much smaller, with all members of a company, including the leaders,
>being drawn from the same community. I don't know that it would be
>effective with today's complexity of weapons systems and logistics
>systems. The scale of military operations is another problem. I have
>some ideas on simplifying the technical systems. Bringing the scale
>of military operations back to a militia level is a political and
>social question, and I don't think it can be addressed in the US
>without some major societal changes.
>
>I'm sending this via email rather than by posting to the c-punks
>list because I'm not a subscriber to the list. It seems that I
>_could_ post, but think it would be rude. Feel free to quote this
>message if you want to post a response.
----- End of forwarded message from Sean Roach -----
I see the point he's making, I think it makes some assumptions that aren't
realy valid though.
At the federal level you have: army, navy, militia. All are managed by
Congress unless they hand authority to the President. In all cases the
funding and regulation comes from Congress. The states do get to appoint the
officers of the Militia however. I assume this is under the presumption that
such officers are more likely to refuse to follow federal orders if those
orders are clearly outside the line. It's a sort of checks and balances.
Now if we look at the section on states, that I claim gives the states the
responsibility to keep an indipendant force in time of invasion, there is no
stipulation as to who or how they are to be selected, organized, or funded;
other than it ain't federal or state doing it. One could argue that this
would then mean counties/parishes and then indipendant municipalities
before it gets to individual citizens, but that seems to beg the question in
my mind; not to mention they are not involved in the government of the US. It
can't be federal because there is no delegate that directs the Congress to
allocate funds for this use. It can't be the states doing the funding since
they are specificaly prohibited from doing this, without permission from
Congress, until an actual invasion or a situation that 'will not admit delay'.
This implies the sherrif and associated folks going from house to house asking
for help from the citizens as they see fit. Bubba and all his rowdies (those
that haven't been co-opted by the federal forces so far) along with Grandpa
and the two Jones' sisters ( :) ) getting in their pick-ups and going hunting.
It seems to me that it is the lower civil authorities deputizing the commen
citizen as a last ditch defence effort.
I think 'deputized citizen' is a more accurate term to describe the
participants of this last ditch effort to retain freedom.
As to the claim of militia or citizen soldiers not being effective, there
are plenty of bush wars going on right now that would argue contrary to
this.
Using poetic license;
I suspect that if you got a squad of Texans chasing a group of non-US soldiers
out in the bush of Texas we'd have 'em for lunch. The same holds for just about
every other state as well. I can just imagine the results of a bunch of
Russians (for example) trying to chase Cajuns in the swamps of Louisiana. Or
American Indians in S. Dakota. They couldn't beat the Mujahadin and they
sure as hell won't beat us on our home turf. Compared to a Dog Soldier the
Mujahadin are amateurs.
"Give me liberty, or give me death."
--
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The Armadillo Group ,::////;::-. James Choate
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