By
Dr. Edwin Vieira, Jr., Ph.D., J.D.
June 8, 2009
NewsWithViews.com
In
light of the recent decisions of the Seventh Circuit Court of Appeals
in NRA v. City of Chicago, holding that the Second Amendment
does not apply to the States, and of the Ninth Circuit Court of Appeals
in Nordyke v. King, holding that the Amendment does apply,
some overview and prognostication may be in order.
The
error in the Seventh Circuit’s decision is obvious, inasmuch as
the original Constitution itself describes the Militia as “the
Militia of the several States”, and the Second Amendment declares
that “[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 “Militia” of
which the Second Amendment speaks are “the Militia of the several
States”, to the formation of which “the right of the people
to keep and bear Arms” is critically instrumental. Ergo, the States
have no power to deny this “right” and destroy “the
Militia of the several States” indirectly, any more than they
have the power to excise “the Militia of the several States”
from the Constitution directly. But, in this particular, the Constitution—although
it was written for farmers, mechanics, tradesmen, merchants, and other
common Americans in the late 1700s—seems to be too difficult for
some of the marsupial minds in the current Kangaroo Kourts to understand.
Of
course, the Nordyke case holds that the Second Amendment does
apply to the States. But what is the practical difference between these
two opinions? Nothing at all. In one, the court held that the Second
Amendment does not apply to the States, and therefore individuals’
“gun rights” can be denied. In the other, the court held
that, notwithstanding that the Second Amendment does apply to the States,
individuals’ “gun rights” can be denied. So, whether
the poor chumps demanding their “gun rights” win or lose
on the applicability of the Second Amendment to the States, they find
themselves frozen out on the merits!
Now
a writ of certiorari may be granted on the grounds of “a split
among the Circuits”, and America will be forced to suffer through
the rounds of another circus maximus at the Supreme Court, only to be
handed another District of Columbia v. Heller decision, telling
We the People that, although the Second Amendment does apply to the
States, the States may override it in order to enforce “reasonable
regulation”, or to achieve “compelling government interests”,
or to enjoy some other license from constitutional restraints courtesy
of a few paragraphs of judicial mumbo jumbo! Or telling We the People
that the Amendment does not apply to the States on the grounds of some
equally vapid double-talk. But in either event telling We the People
that, once more (and forever), they are the losers.
In
anticipation of some such fiasco, it seems appropriate to provide a
“different take” on these matters for the ether’s
“I told you so” file. The following excerpt is from a draft
of the second volume of my series Constitutional “Homeland
Security”, Constitutional Principles of the Militia. The
context is the pre-constitutional Militia of Virginia, but
the applicability of the principles discussed is as contemporary as
it could be:
[...start
of excerpt...]
That most Militiamen owned—and if they did not own at least continuously
possessed in their places of abode—the firearms, ammunition, and
accoutrements they brought to their Militia service provides an important
insight into the meaning of the Second Amendment’s command that
“the right of the people to keep and bear Arms, shall not be infringed”.
Distinguishably
from Militiamen, members of Virginia’s regular armed forces who
received public arms typically surrendered them at the completion of
their service. Indeed, on at least one occasion, Virginia even required
some of her troops to take an oath to that effect:
[1775]
“I * * * swear, that I will be faithful and true to the colony
and dominion of Virginia; that I will serve the same to the utmost of
my power, in defence of the just rights of America, against all enemies
whatsoever; that I will, to the utmost of my abilities, obey the lawful
commands of my superiour officers, * * * and lay down my arms
peaceably, when required to do so, either by the General Convention
or General Assembly of Virginia.”
Militiamen
who owned and possessed their own arms were never compelled
to surrender them to public officials, even when some of them were properly
exempted from some or all Militia service because of disability, superannuation,
removal from the Commonwealth, or other reason. No statute purporting
to impose such a general surrender ever saw the light of day in Virginia,
in Rhode Island, or in any other Colony or independent State during
the pre-constitutional era. True enough, “poor” Militiamen
who received arms from the Commonwealth also returned those arms to
their Militia officers as soon as their own service in the Militia ended.
But, although they never attained actual legal title to the arms the
Commonwealth supplied, while their service continued these “poor”
Militiamen were never deprived of personal possession of those arms,
except perhaps to turn them over to other Militiamen for the performance
of those Militiamen’s service (as, for example, in the case of
rotation in duty). So, save for those unavoidable (and presumably short)
periods of time during which Militia officers transferred possession
from one “poor” Militiaman to another, a public firearm
used for this purpose never left the personal custody of some Militiaman
required to employ it as his own firearm in the fulfillment of his own
Militia duties.
All
this, of course, was the result of a statutory structure, in Virginia
as elsewhere throughout pre-constitutional America. But when
the Constitution incorporated into its federal system “the Militia
of the several States” as they existed during those times,
every member of every one of “the Militia of the several States”,
unless properly exempted according to constitutional principles, thereafter
became and remains today subject to a constitutional duty at
least to possess, if not also actually to own, a firearm, ammunition,
and accoutrements suitable in some manner for Militia service. And,
howsoever he may lawfully acquire that equipment, every member of any
of “the Militia of the several States” enjoys at least a
constitutional right to possess it, and most likely also a constitutional
right of actual ownership of it, in order to perform that constitutional
duty.
The
Second Amendment states this conclusion in a slightly different fashion:
“[T]he [constitutional] right of the people” is “to
keep and bear Arms”. The purpose of this “right” is
to fulfill “the people[’s]” constitutional duty to
serve in “well regulated Militia”, which are “necessary
to the security of a free State”. In any “well regulated
Militia”, each Militiamen always possesses, and usually owns,
one or more “Arms” suitable for Militia service, which he
“keep[s] and bear[s]”. Therefore, the injunction “shall
not be infringed” means, at the minimum, that no public official—whether
of the General Government or of any State—is authorized to deprive
any member of “the Militia of the several States” of his
ownership or possession of such firearms, or of the ability to acquire
them in the first instance through the free market if some public agency
does not supply them directly.
Not
just that, either. When an individual member of the Militia qualifies
for an exemption from Militia service—as through disability, superannuation,
or some other legitimate reason—if the firearm he theretofore
acquired for and used in his Militia service is his own “property”,
he cannot thereafter be “deprived of * * * [it] without due process
of law”. And the only instance generally recognized for such a
deprivation in pre-constitutional times was “impressment”,
whereby the firearm could be taken for, and only for, the public use
for which it was competent—namely, Militia or other military service—and
even then only with just compensation to the expropriated party. In
addition, the mere status of that individual as exempted from the Militia
can never be a basis for his disarmament, because an exemption does
not extinguish his legal obligation to serve if called, and
therefore he always remains a potential active member of the
Militia: If his exemption arose from some personal disability, he could
possibly be cured. If his exemption was founded simply on his superannuation,
if still healthy he could volunteer for further service in
the Militia. And if his exemption rested on partial disability or some
other ground, it could be disallowed by legislative action, because
no exemption from Militia service is of constitutional stature other
than the physical impossibility of a Militiaman’s performance
of any duty whatsoever. Similarly for a Militiaman who did not own,
but merely possessed on loan, a firearm during his term of service,
but who obtains a firearm, either of his own or on loan from some legitimate
source, after that term ends: The acquisition of that new firearm can
always be justified—and constitutionally protected—as in
furtherance or anticipation of his renewed Militia service.
Thus,
no individual either (i) who is an actual member of the Militia at the
present time, or (ii) who was an actual member of the Militia and although
now exempted from Militia service could be eligible for future active
membership in the Militia, can lawfully be deprived of ownership or
possession of a firearm suitable for Militia service. And inasmuch as
essentially every firearm can conceivably be employed in some profitable
manner in Militia service, no such individual can lawfully be deprived
of any such firearm. Therefore, inasmuch as actual or potential members
of the Militia, men and women, encompass almost every last adult American
among “the people”, the injunction “shall not be infringed”
applies universally, to every American, to every type of “Arms”
suitable for Militia service, everywhere, and at all times. Or,
no conditions could possibly exist under which any significant segment
of WE THE PEOPLE, not enlisted within the regular Armed Forces, must
“lay down [their] arms peaceably, when required to do so [by any
public official]”. No public official has any power so to
require. And WE THE PEOPLE labor under no duty to obey any command issued
under color of such a non-existent power.
This
follows not only from the practical consequence of the general rule
pertaining to individuals’ possession of firearms for Militia
service during the pre-constitutional era, but also from consideration
of why this rule existed at all. If WE THE PEOPLE did “lay down
[their] arms”, not just “well regulated Militia”,
but any true “Militia” whatsoever would cease to exist.
What is “necessary to the security of a free State” would
no longer be available. With its security hopelessly compromised, each
and every erstwhile “free State” would collapse—perhaps
into the chaos of anarchy, but more likely into the clutches of tyranny.
No “free State”, however, can exercise a power to commit
political suicide or to perpetrate the political mass-murder of its
citizens. A power to destroy itself or its citizens is not among the
“just powers” that any government could “deriv[e]
* * * from the consent of the governed”, because “Governments
are instituted among Men” to “secure [unalienable Rights]”,
not to allow them to be violated, let alone affirmatively to participate
in their violation. And if such a “Government”, purporting
to exercise such an “unjust power[ ]”, did expose the community
to such mortal danger, it would be the people’s duty, as well
as their right, under “the Laws of Nature and of Nature’s
God” immediately “to throw off such Government, and to provide
new Guards for their future security”.
[...end
of excerpt, endnote and footnotes omitted...]
This
material is drawn from pages of the draft tentatively numbered 367 through
370—from which datum one can gain a sense of how extensive and
comprehensive this work will eventually turn out to be (if it ever sees
the light of day).
The
question is, will these ideas (and many others that accompany them in
the book) ever have any positive and timely impact on the course of
the on-going struggle for Second Amendment rights and “the security
of a free State”? I hope they will; but I suspect they may not.
Because the people in the forefront of the “gun-rights”
lobby—other than a few gems such as Larry Pratt and Aaron Zelman—are
coming at the problem from the wrong end of the horse, so to speak.
(By the way, go to <www.jpfo.org> and view Aaron Zelman’s
powerful and painfully true new documentary, “No Guns for Negroes”,
to see how this matter should be approached.)
Asking
America’s Kangaroo Kourts for assistance in enforcing the Second
Amendment is politically suicidal. Even a decision of the Supreme Court—which
is the “Holy Grail” for so many “gun-rights”
advocates—is not the same as the Constitution. Decisions of the
Supreme Court do not determine what the Constitution means—the
Constitution had a fixed meaning before the first Justice of the Supreme
Court was appointed. Rather, the Constitution determines whether a decision
of the Supreme Court is correct or incorrect—and, in proof of
this, the Supreme Court has made, and admitted to, serious errors in
constitutional interpretation time and again. Thus, rather than promoting
the Constitution, the judicial strategy being followed today by far
too many “gun-rights” advocates actually advances an anti-constitutional
principle: namely, that “We the Judges”, rather than We
the People, exercise sovereignty in this country.
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If
We the People actually want to exercise their sovereignty, they must
do it, not in court rooms from which issue all-too-often-faulty “judicial
opinions”, but in their State legislatures, where true “laws”
are made. In the long run, this will prove to be, not just a better
way, but the only way. Unfortunately, when that realization
finally dawns on the “gun-rights” gurus, there may not be
sufficient time remaining for anything else to be done to avoid the
imposition on America of a first-class para-military police state. If
so, please do not complain when everything turns out badly. I did
tell you so. And more than once.
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).
For more than thirty years he has
practiced law, with emphasis on constitutional issues. In the Supreme
Court of the United States he successfully argued or briefed the cases
leading to the landmark decisions Abood v. Detroit Board of Education,
Chicago Teachers Union v. Hudson, and Communications Workers of America
v. Beck, which established constitutional and statutory limitations on
the uses to which labor unions, in both the private and the public sectors,
may apply fees extracted from nonunion workers as a condition of their
employment.
He has written numerous monographs
and articles in scholarly journals, and lectured throughout the county.
His most recent work on money and banking is the two-volume Pieces
of Eight: The Monetary Powers and Disabilities of the United States
Constitution (2002), the most comprehensive study in existence of American
monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under
a nom de plume) of the political novel CRA$HMAKER:
A Federal Affaire (2000), a not-so-fictional story of an engineered crash
of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
Self-evidently, the
“Militia” of which the Second Amendment speaks are “the
Militia of the several States”, to the formation of which “the
right of the people to keep and bear Arms” is critically instrumental.