IN THE NICK OF TIME
PART 2 of 3
Dr. Edwin Vieira, Jr., Ph.D., J.D.
December 29, 2008
This situation flies in the face of Congress’s—and in default of Congress’s action, the States’—absolute duties to organize, arm, discipline, and train the Militia. In particular, the Constitution delegates to Congress, in the interest of promoting national uniformity, the powers “[t]o provide for organizing, arming, and disciplining, the Militia” [Article I, Section 8, Clause 16]. Inasmuch as the Second Amendment declares that “[a] well regulated Militia” is “necessary to the security of a free State,” and inasmuch as “well regulated Militia” are those organized according to the statutory pattern common in the Colonies and independent States prior to ratification of the Constitution, Congress must exercise its power by enacting such appropriate legislation. Or if Congress neglects, fails, or refuses to do so, the States themselves must enact their own statutes—the Militia being, after all, “the Militia of the several States.”
Although this is clear enough from the simple juxtaposition of Article I and the Second Amendment, further proof is available. The preamble to the Bill of Rights explained its purpose as follows:
THE Conventions of a number of the States, having at the time of their 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 * * * .
RESOLUTION OF THE FIRST CONGRESS SUBMITTING TWELVE AMENDMENTS TO THE CONSTITUTION (1789), in Documents Illustrative of the Formation of the Union of the American States, House Document No. 398, 69th Congress, 1st Session (Washington, D.C.: Government Printing Office, 1927), at 1063.
So, because the declaration in the Second Amendment operates “to prevent misconstruction or abuse of [Congress’s] powers”—that is, to limit or remove entirely Congress’s aberrant discretion in the premises—those powers relating to the Militia must be so exercised as to achieve the Amendment’s goal with respect to the Militia, and in no other manner. That goal requires the Militia to be sufficiently “well regulated” that they be capable of actually providing for “the security of a free State.” Part of that “regulat[ion]” involves reliance on “the right of the people to keep and bear Arms.” So, arming the people with firearms suitable for Militia service is Americans’ absolute right and Congress’s absolute duty. Organizing the people in suitable Militia units throughout the country is Americans’ absolute right and Congress’s absolute duty. And so on, through all the elements of “[a] well regulated Militia.” So, too, with the States.
Insofar as Congress’s duties with respect to the Militia are absolute, it cannot possibly set up some other force to take the place of, absorb, or control the Militia. Moreover, that other force could not possibly be the Armed Forces in any event, because the Militia are intended to be a counterweight to the Armed Forces. See Joseph Story, Commentaries on the Constitution of the United States (Boston, Massachusetts: Little, Brown, and Company, Fifth Edition, 1891), Volume 2, § 1897, at 646. And that other force could not possibly be some heretofore unheard-of “civilian national security force”, if only because all of the potential recruits for that force should already be members of the Militia!
A fortiori, if Congress—which exercises “[a]ll legislative Powers * * * granted” in the Constitution [Article I, Section 1]—cannot displace the Militia with some other force, the President—who enjoys no legislative power whatsoever—cannot do so either. Indeed, the President could not do it, and should not want Congress to attempt to do it, because displacing the Militia with (say) some new “civilian national security force” would strip him of part of his status as Commander in Chief by depriving him of some of the forces the Constitution declares he is to command, while adding nothing to that status, because the Constitution makes no provision for substituting new forces in lieu of those (unconstitutionally) displaced. Indeed, by specifying that the President is “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States,” the Constitution explicitly denies him the status of “Commander in Chief” of any other force. Expressio unius exclusio alterius.
Having thus reviewed the right answer, analysis of the wrong ones is now appropriate.
[B]The overtly military scheme should be investigated first, because at least the Constitution does provide for Armed Forces. According to an article in The Washington Post of 1 December 2008 by Spencer S. Hsu and Ann Scott Tyson, entitled “Pentagon to Detail Troops to Bolster Domestic Security,” the basic plan is to deploy some 20,000 troops “trained to help state and local officials to respond to a nuclear terrorist attack or other domestic catastrophe.” The dangerously open-ended term here, of course, is “other domestic catastrophe.” The most likely—indeed, now almost certain—“other domestic catastrophe” will be an explosion of the Federal Reserve System in hyperinflation, accompanied or followed by a depression, with concomitant economic chaos, social upheaval, and political unrest permeated with mass violence. In any event, it is obvious that whoever in the final analysis commands the troops will determine when a “domestic catastrophe” sufficiently grave to rationalize their deployment has occurred, and then will tell “state and local officials” what to do. Even The Washington Post reports critics’ complaints that this is “‘a creeping militarization’ of homeland security.”
“Creeping militarization,” however, is hardly descriptive of this situation. “Leaping” is more accurate. The Post quotes an Assistant Secretary of Defense for Homeland Security as admitting that before 9/11 “dedicating 20,000 troops to domestic response * * * ‘would have been extraordinary to the point of unbelievable’ * * * . But the realization that civilian authorities may be overwhelmed in a catastrophe prompted ‘a fundamental change in military culture.’” The question, though, is why would “civilian authorities * * * be overwhelmed in a catastrophe”? The answer is that they are not prepared to deal with “catastrophes”—neither the affected States and Localities themselves, nor those States and Localities in coöperation with others. And why not? Not because they lack the money, the manpower, and the other necessary resources—but because no State or Locality has a proper constitutional Militia in place, or in the process of revitalization. Inasmuch as “[a] well regulated Militia” is “necessary to the security of a free State,” and inasmuch as no such Militia exists within any of the fifty States, of course “civilian authorities [will] be overwhelmed in a catastrophe.” The Constitution itself presciently warns that no other outcome is possible.
The Post’s story further reports that “[l]ast month, * * * authorities agreed to begin a $1.8 million pilot project funded by the Federal Emergency Management Agency through which civilian authorities in five states could tap military planners to develop disaster response plans.” Yet, if these States can concert their efforts in such a “pilot project,” why could not other States, or all of the States for that matter, design, test, and put into practice a wide variety of appropriately individualized programs, even without infusions of money from FEMA (and the strings of control stretching back to Washington, D.C., that are invariably attached to such subsidies)?
This kind of experimentation is precisely what I propose should be done by private citizens in order to establish “homeland security” on constitutional principles State by State across this country.
[The book is entitled Constitutional “Homeland Security,” and is available for $19.95 postpaid ($20.95 for purchasers within Virginia), check or money order payable to “Edwin Vieira, Jr.,” at 52 Stonegate Court, Front Royal, Virginia 22630.]
If I could figure this out—without any help from FEMA, “military planners” or others in Washington—any competent State legislator can figure it out just as well, especially now that I have supplied him with the answer. Provided that his constituents organize themselves to give him a politically forceful nudge in the right direction.
Typically, though, the scheme emanating from Washington (and apparently being accepted without question in some States) relies, not on We the People who organize themselves and take personal control of “homeland security” “from the bottom up,” but on aloof and elitist “civilian authorities” who “tap military planners to develop disaster response plans” “from the top down.” The obvious—and ominous—anomaly in this situation is that We the People not only are the subjects of “homeland security,” whose defense and welfare are its objects, but also are the most important, constitutionally speaking, of all “civilian authorities”. So any plan that invests “civilian authorities” and “military planners” instead of We the People with ultimate control—that emphasizes bureaucracy rather than democracy, and “federalization” rather than federalism—is unlikely to provide “homeland security” in its only constitutionally acceptable form: “the security of a free State.”
Moreover, as a practical matter, “top down” organization from Washington must prove inadequate, if not doomed to failure. If recent History is any guide, the “top down” approach invariably delivers too little real assistance to States and Localities, too late, and at too great a cost; and what it does provide is too often ham-handed, counterproductive, or even futile. And apparently nothing will change as a result of this latest scheme to “tap military planners to develop disaster relief plans.” For The Post itself reports that “a congressionally chartered commission * * * concluded in January [of 2008] that the [National] Guard and reserve forces are not ready and that they lack equipment and training” to “respond adequately to domestic disasters”. So, once again, the big brains in the District of Confusion are caught advocating that the blind and the lame lead everyone else!
Worse yet, as The Post reports, “critics * * * express concern that the new homeland security emphasis threatens to strain the military and possibly undermine the Posse Comitatus Act, a 130-year-old federal law restricting the military’s role in domestic law enforcement.” A critical concern, this: For, although the Posse Comitatus Act is only a statute, it nonetheless reflects the Constitution’s express mandate that “the Militia of the several States”—not any part of the Armed Forces—be “call[ed] forth * * * to execute the Laws of the Union” in domestic disasters (or at any other time, for that matter). So one must ask why no one in public office, in either the General Government or the States, proposes that the Militia be revitalized so that they can be “call[ed] forth” for their constitutionally appointed service—before anyone advocates “tap[ping] military planners to develop disaster response plans,” let alone deploying troops to carry out those plans.
This constitutional objection—to which no adequate response is possible—should be paramount in the minds, not only of civilians, but also of every member of the Armed Forces. They all should ask themselves precisely what is the constitutional basis of this plan—or of any other plan—to deploy thousands of troops “trained to help state and local officials to respond to a * * * domestic catastrophe.” Such a scheme might be constitutionally plausible if the Militia, although fully organized, armed, disciplined, and trained, had proven unable to perform their three constitutional functions—“execut[ing] the Laws of the Union, suppress[ing] Insurrections and repel[ling] Invasions” [Article I, Section 8, Clause 15]—in the face of one “domestic catastrophe” after another. Self-evidently, though, that condition precedent has not yet occurred—simply because, being thoroughly “unorganized” through the fault of Congress and the States’ legislators, “the Militia of the several States” have not been and cannot be put to the test in any State.
In advance of such a test to which the Militia actually prove unequal, the Armed Forces should have no place in a general plan to “help state and local officials to respond to * * * domestic catastrophe[s]”. The Constitution describes the Militia—not the Armed Forces—as being “necessary to the security of a free State” because:
and foremost, the Armed Forces are not composed of every able-bodied
American from sixteen to sixty, and thus the very embodiment of We the
People—the Militia are.
Second, the Armed Forces are not organized on the basis of “the several States,” in keeping with the foundational principle of federalism—the Militia are.
Third, the Armed Forces are not delegated by the Constitution the explicit responsibility “to execute the Laws of the Union, suppress Insurrections and repel Invasions”—the Militia are.
Fourth, the Armed Forces are not constitutionally entitled to refuse to take commands from a rogue President and Members of Congress—the Militia are.
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The possibility that “martial law” might be declared as the result of some “domestic catastrophe” does not to any degree detract from these observations. One may well doubt that “martial law” has any place whatsoever in America’s constitutional system. For, as Sir William Blackstone told the Founding Fathers and continues to tell us, “martial law, which is built upon no settled principles, but is entirely arbitrary in it’s decisions, is * * * in truth and reality no law, but something indulged, rather than allowed as law * * * ; and therefore it ought not to be permitted in time of peace, when the * * * courts are open for all persons to receive justice according to the laws of the land.” Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 1771), Volume I, at 412. Moreover, the Constitution provides in no express manner for any declaration of “martial law” by anyone, for any reason. But if any form of “martial law” is somehow constitutionally permissible, such “martial law” must be among “the Laws of the Union”—there being no other body of laws, except “the Laws of Nature and of Nature’s God,” to which Americans are subject. The Constitution, however, explicitly delegates the authority and responsibility “to execute the Laws of the Union” to the Militia, and to the Militia only. At base, the Militia are “martial” establishments. Therefore, in the first (and probably every) instance, “martial law” within the United States, if it can be executed at all, must be executed by the Militia, not the Armed Forces. For part three click below.