DISSONANCE AND THE SECOND AMENDMENT
PART 2 of 2
Dr. Edwin Vieira, Jr.,
November 28, 2014
DISSONANCE AND THE SECOND AMENDMENT
Dr. Edwin Vieira, Jr.,
Increasingly in recent years (as in Mr. LaPierre’s article in the American Rifleman), the NRA has suggested sotto voce that contemporary Americans need to preserve and exercise “the right of the people to keep and bear Arms” in order to defend themselves against domestic political criminals—who, in the nature of things, can victimize everyone in America, State by State or throughout the Nation as a whole. But the notion that even well-armed individuals—lacking the organization, training, discipline, and especially the legal authority of some collective, constitutionally recognized institution such as the Militia—could stand up in isolation or in small ad hoc groups for very long against the para-military police-state apparatus of a full-blown tyranny is childish. Moreover, the NRA offers mere “civilians” no training aimed specifically at resisting political criminals; but it does conduct classes restricted to law-enforcement officers, some of whom may very well end up relying upon that very training to oppress the citizenry on behalf of those very criminals. In addition to all of this, some Americans—perhaps far too many overall, and certainly many too many amongst present-day public officials—are on record as in favor of expanding the police-state apparatus in this country, with the particular goal of thoroughly disarming the general public through pervasive “gun control”. So, although the fear of domestic tyranny might cause not a few foresightful Americans to arm and train themselves as individuals, by itself it could hardly promote the kind of near-universal participation in the NRA and its programs that would likely deter, and if deterrence failed could possibly defeat, such tyranny.
The only sure way the NRA could ever have been, or could now become, successful with respect to its professed aim would have been, and would now be, to advocate—in fact, to insist upon—and to assist in revitalization of the Militia of the several States. This is hardly out of the question today. For no institutional stricture prevents the NRA from assuming a leading rôle in that endeavor. After all, Article II of the NRA’s Bylaws states in pertinent part:
Observe that points 1 and 3 specifically refer to the Militia. And point 2 refers to “public safety, law and order, and the national defense”, which are the explicit constitutional responsibilities of the Militia under Article I, Section 8, Clause 15 of the Constitution, which empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. Thus, according to this bylaw, the NRA should be an ardent advocate, assistant, and even architect of the Militia in the several States, so as fully (in its bylaw’s own words) “[t]o protect and defend the Constitution of the United States” in keeping with the declaration of the Second Amendment that “[a] well regulated Militia” is “necessary to the security of a free State”. Why, then, is the NRA not such an advocate, assistant, and architect?
Perhaps the NRA imagines that the National Guard constitutes the modern-day Militia. The National Guard, however, is not an establishment with the historical pedigree and constitutional rank of the Militia, but instead is a merely statutory creation which Congress and the States did not begin to cobble together until 1903. The Militia to which the Second Amendment and the Militia Clauses of the original Constitution refer, distinguishably, had been in existence in the Colonies and then the independent States long prior to ratification of the Constitution, and had continued to exist (albeit in a constitutionally unsatisfactory state of disrepair) until the sequence of statutory events which began only at the turn of the Twentieth Century. Certainly America’s Founders would never have left it to Congress from 1788 (the date of ratification of the Constitution) or 1792 (the date of ratification of the Bill of Rights) until 1903 and thereafter finally to get around to setting up the institutions which the Second Amendment declares always to be “necessary to the security of a free State”. In fact and law, the National Guard has nothing whatsoever to do with “militia” in any sense of that term, but instead consists of the “Troops, or Ships of War” which the States may “keep * * * in time of Peace” “with[ ] the Consent of Congress”, under Article I, Section 10, Clause 3 of the Constitution. The reader interested in details should refer to The Sword and Sovereignty, at 786-793. The National Guard may very well be useful (in the NRA’s words) “[t]o promote * * * the national defense”—but not in the capacity of “Militia” as the Constitution understands that term.
Perhaps the NRA shies away from any association with even the term “militia” because: (i) The NRA is quite active in providing State and Local law-enforcement agencies with various forms of training in which mere “civilians” are not allowed to participate. (ii) Certain well-known subversive organizations are conducting intensive campaigns to demonize the term “militia” and to deceive law-enforcement agencies into accepting the manifestly false proposition that anyone participating in or even merely supportive of a “militia” is a dangerous “extremist”. And (iii) the NRA does not want to disturb its coöperative relationship with law-enforcement agencies by challenging the malign misperception of “militia” which all too many of them have unthinkingly adopted. This, of course, is a paradoxical state of affairs—for the selfsame subversive organizations which defame the proponents of “militia” are also in the forefront of the movement for the comprehensive “gun control” which the NRA vehemently opposes. In any event, in contrast to the Militia, State and Local police departments and other law-enforcement agencies can claim no explicit basis in the Constitution of the United States. And, upon revitalization of the Militia, in order to imbue them with as much constitutional authority as possible, all of the personnel in those departments and agencies should be incorporated into the Militia as specialized units. So, upon revitalization of the Militia, the NRA could maintain its present relationship with these law-enforcement agencies upon a legal foundation far more significant and firm than now exists.
Although every year the NRA trains large numbers of “civilians” in various aspects of the use of firearms (and does so in a highly competent manner), perhaps it discerns no connection between this praiseworthy activity and the Militia. Self-evidently, though, because “a well regulated militia” is “composed of the body of the people, trained to arms”, almost all “civilians” amongst able-bodied adults in every State and Locality would be eligible for some sort of service in revitalized Militia—and therefore would be required to participate in some sort of training with firearms (if only to learn the basic rules of firearms safety), much if not most of which the NRA could conduct. Thus, instead of training only hundreds of thousands of individuals each year, the NRA should, could, and would be training tens of millions. It surely passes understanding why the NRA should want to forego the sizeable financial returns and other benefits that would accrue to it in this regard upon revitalization of the Militia.
Perhaps the NRA does not comprehend the ultimate purpose of the subversive political ferment on behalf of “gun control”, and how best to counter it. “In 1975, recognizing the critical need for political defense of the Second Amendment, NRA formed the Institute for Legislative Action, or ILA” for the purpose of opposing “gun control”. [“A BRIEF HISTORY OF THE NRA”.] But, since 1975 and unto the present day, the NRA has never realized—or certainly has never acted on the realization—that, were the Militia revitalized, all obnoxious “gun control” would be eliminated at one stroke, forever. A permanent and unassailable constitutional defense of the Second Amendment would take the place of the repetitious, tedious, expensive, and not invariably successful “political defense” the NRA now mounts, year after year, against the well-funded, widely propagandized, and strident fanaticism of “gun controllers”.
The NRA would do well to pay attention to the primary focus of contemporary “gun control”. Yes, the destination of “gun controllers” is the complete disarmament of the American people, through every device up to and including the outright confiscation of all firearms in private possession: As Senator Dianne Feinstein notoriously expressed her and her co-thinkers’ desideratum, “Mr. and Mrs. America, turn them all in!” Since the Clinton Administration, however, “gun controllers” have emphasized, and continue to harp upon, banning, confiscating, registering, or otherwise onerously regulating the possession by ordinary Americans of so-called “assault rifles” (and such accoutrements as “high-capacity magazines” typically associated with such rifles). It is utterly irrelevant to “gun controllers” that the extent of private possession of these arms bears no significant relationship to the overall level of violent crime throughout this country. The decisive point which “gun controllers” never mention, but which should be obvious to any observer, is that these rifles are closely akin to the most modern of military small arms (being similar or even essentially identical in form and function, except for their capability of only semi-automatic rather than fully automatic fire). So, although any and every firearm could be suitable for some variety of Militia service, “assault rifles” constitute the best sort of Militia firearms now generally available to ordinary Americans in the free market. Thus, contemporary “gun controllers” aim first and foremost at denying ordinary people eligible for the Militia (that is, essentially every able-bodied adult citizen) the right to possess what would be the indispensable tools of revitalized Militia.
Now why would “gun controllers” imagine the denial of this right to be so consequential that they would push for it at every opportunity? Is their intent just to deny individuals, as individuals, the right to keep and bear these particular arms, as distinct from other types, because of some curious concern over the mere appearance of these rifles? Is it just to deny individuals, as individuals, the right to shoot targets with these particular arms, as opposed to rifles that are often far more accurate at far greater ranges? Is it just to deny individuals, as individuals, the right to hunt with these particular arms, which in many instances are already deemed not allowable for harvesting certain kinds of game under perfectly valid State and Local laws? Or is it just to deny individuals, as individuals, the right to personal self-defense with these particular arms, even though an “assault rifle” is not recommended by experts, including the NRA, as the type of firearm best suited for self-defense in most cases? No, no, no, and no! “Gun controllers’” recondite but real intent is to render the formation of “well regulated Militia” in the several States exceedingly difficult, if not impossible, by denying the community the collective right to keep and bear the very firearms particularly suitable for service in the Militia, through the denial to individuals of the right to keep and bear such arms—thus stripping the community of the collective ability to defend itself most effectively against usurpers and tyrants.
“Gun controllers” are perfectly aware that the concern of the Second Amendment is not hunting, target shooting and other sports, or even self-defense by individuals as individuals. Unless one dispenses with the definitions of words and the rules of grammar, the Amendment’s own language and sentence-structure prove that the notion of an exclusively “individual” “right * * * to keep and bear Arms” is alien to it. The Second Amendment is directed towards “the security of a free State”, not just the security of individuals as individuals. To draw on the phrase made familiar by Massad Ayoob, the Amendment aims at community preparedness in anticipation of “the gravest extreme”: namely, an attack upon “a free State” by usurpers and aspiring tyrants. In the Amendment the Militia occupy the central position, in both principle and practice: “A well regulated Militia is necessary to the security of a free State”, and “the right of the people to keep and bear Arms, shall not be infringed”, precisely because “Arms” in the hands of “the people” themselves are essential to “[a] well regulated Militia”. Indeed, a fully armed people is a precondition for “[a] well regulated Militia”.
In the final analysis, this is why “gun controllers” demonize (when they do not disingenuously disregard) the Militia, and deride and defame anyone who promotes the Militia. And this is why “gun controllers” are perfectly content to oppose the NRA’s present-day “political defense of the Second Amendment” simply by attacking the “individual right” to possess particular types of firearms (and, in the limit, all firearms) as being in supposedly irreconcilable conflict with the right of the community to be “safe” from “gun violence”. After all, “gun controllers” realize that they cannot possibly win the legal-cum-political argument over “gun control” if they allow the proper understanding of the constitutional Militia to become central to the debate. Can they come out and say, “Americans will be much more ‘safe’ when thoroughly disarmed and disorganized in a police state, than when exercising ‘the right of the people to keep and bear Arms’ in ‘a free State’ through the Militia”?
Would anyone accept the notion that he could ever be “safe” to any degree in a police state—especially when deprived of the most effective means to defend himself, collectively as well as individually, against oppression? Or would most Americans believe that the right of the community (and thereby its constituent individuals, too) to live in “a free State” is far more important than the conjectural avoidance of possible injury to any particular individual (or even to many individuals) from some other individuals’ improper use of firearms—especially when that possibility would be minimized because most individuals were thoroughly trained in the safe use of firearms as part of their Militia service?
The question of the greatest practical consequence, then, is why does the NRA—and, for that matter, most other self-styled advocates of the Second Amendment—obstinately continue to fight the battle against “gun control” on the ground most advantageous to “gun controllers”? One would expect that the very worst manifestations of cognitive dissonance would arise from simultaneously believing that “gun controllers” were so dangerously wrong and yet so politically influential that they threatened Americans’ most important freedom, whilst nonetheless allowing them to set the terms of the debate on “gun control” to their advantage—and that the resulting stress would have to be relieved by rejection of one of these mutually conflicting positions as soon as possible. If someone can offer an explanation for the persistence of this most peculiar state of affairs, and can advance a proposal for how to correct it, I for one would appreciate knowing what they are. Perhaps so might the NRA. For part one click below.
� 2014 Edwin Vieira, Jr. - All Rights Reserved
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
He can be reached at his new
The only sure way the NRA could ever have been, or could now become, successful with respect to its professed aim would have been, and would now be, to advocate—in fact, to insist upon—and to assist in revitalization of the Militia of the several States. This is hardly out of the question today. For no institutional stricture prevents the NRA from assuming a leading rôle in that endeavor.