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19 APRIL 1775 vs. THE D.C. GUN CASE

 

By Dr. Edwin Vieira, Jr., Ph.D., J.D.
April 14, 2008

NewsWithViews.com

From what I have heard, the oral argument in the Supreme Court on the District of Columbia gun case suggested that a majority of the Justices just might discover an “individual right” “to keep and bear Arms” in the Second Amendment, and on that basis might declare the District’s draconian “gun-control” laws to some degree unconstitutional. Such a decision might lead to further victories against “gun-control” statutes and ordinances in other jurisdictions. Yet it might prove instead to be a Trojan Horse, because it could come down larded with so much judicial mumbo jumbo about “reasonable regulation” and “compelling governmental interests” as grounds for “gun control” that the Second Amendment would be left guaranteeing less of a “right” than of an occasion for endless legislation and litigation. Well, one can only hope for the best—but at the same time one ought to prepare for something less.

My concern is what happens if the Justices somehow do rule favorably on the “individual-right theory.” I suspect that such a victory—after the champagne runs out—will have the perverse result of putting all the pro-Second Amendment people and organizations to sleep. With their personal “gun rights” apparently secure (at least for the time being), they will not be worried about how correctly to construe the Amendment, and how really to enforce it, even though this country needs that construction and enforcement now more than ever before.

The inescapable fact is that whatever “individual right” “to keep and bear Arms” emerges from the D.C. gun case will not provide “the security of a free State” at which the Second Amendment aims. True, tens and tens of millions of Americans possess firearms and ammunition; and perhaps large numbers of these firearms are suitable for Militia service. But the armed individual, simply as an individual, is not enough.

All too many individual gun owners are not even aware of each other. Although some are members of firearms ranges or gun clubs, hardly any if them are organized for anything akin to Militia purposes. They are not members of specific units. They have no designated leaders. They lack systems for communications within or among units, or among individuals for that matter. (Where, for example, is the gun-owners’ equivalent of a “Neighborhood Watch” against local usurpation and tyranny?) Even within their own neighborhoods, among families and friends, they make no attempts to insure uniformity or completeness of equipment. They lack sufficient, and often necessary, education and training. They have prepared no plans to deal with various contingencies, let alone have assigned tasks to be carried out in anticipated emergencies. More crucially, they do not understand their constitutional status, purpose, and especially authority. Many, if not most, of them have no idea what they would be defending with their “individual rights” “to keep and bear Arms”—other than, perhaps, simply maintaining possession of their own firearms for purposes of possible self-defense. So, absent direct attacks on their own persons, how many gun owners today, anywhere, no matter how serious the crisis confronting the rest of society around them, would exercise their “individual rights”? Or could effectively do so? And to what end?

Oh, common Americans may be individually insulted, even outraged, by “the insolence of office” that increasingly characterizes rogue public officials at every level of government today. They may rightly resent, even intensely, the contempt with which such obnoxious officialdom treats them. They may correctly see their and their families’ present financial positions and future economic security being destroyed by the debt-currency schemes, speculative bubbles, and bailouts engineered by the Federal Reserve System and its clients among the low life of high finance. They may be subject to endless harassment by the tax Gestapo or the mentally jack-booted thugs in other governmental agencies. They may even have been the bloodied victims of para-military police brutality. But so what? Now what? They do not know what to do, or how to do it—or perhaps why.

Even if some of these isolated and ignorant individuals could somehow come together here and there in the midst of a crisis that sufficiently rocks society’s foundations to wake and shake them up, they would constitute only armed mobs, not even “militia” in the generic sense, and certainly not “Militia” in the specifically constitutional sense. Moreover, the very few who are already organized, and who do train, as “private militia” lack constitutional authority—and often, if not usually, envision themselves as outside of and antagonistic to “the government” (rather than as the ultimate embodiment of “government”). If these few individuals stood up with their “individual rights” against the trained and ruthless enforcers deployed against them by a police state, they would be branded outlaws or “terrorists”, demonized by the big media, deserted by their fellow citizens, and quickly picked off and packed off to morgues or detention centers.

Such a scenario, of course, is the exact opposite of the true Militia model, and of actual Militia experience in American history. When thousands of Militiamen appeared outside of Boston, Massachusetts, on 19 April 1775, were they acting solely in pursuance of an “individual right”? Did “the embattled farmers” fight only as individuals? Were they just a lawless mob? Was their victory at the Battle of Lexington and Concord the lucky result of martial anarchy? Of course not.

Very few “civilians” (in the purest sense of that term) were involved on that fateful day. Most of the men who mustered were members of Militia companies that had been training assiduously for some time theretofore. (And the ones who were not, because they were too old to be required to serve, but who fought anyway, had been members of the Militia when young.) Had not that been the case, the Militia would never have been able to assemble so many men, on such short notice, from beyond Concord all along the road back to Boston.

Neither did “the embattled farmers” fight merely as individuals. They may have employed the tactics of irregulars—neither maneuvering in parade-ground formations nor presenting a concentrated target to their enemies—but they always operated in set units, typically Militia companies, which averaged about 50 men apiece when at full complement. The Militiamen’s success was based upon organization—being called out in a systematic fashion by riders, bells, or the firing of shots; equipment—being adequately armed and accoutred; training—knowing what to do, under their designated officers; morale—being psychologically ready and confident; and especially authority—knowing that they had the legal right, power, and duty to take action, because British General Thomas Gage, and the Ministerial Government behind him, were the usurpers and law-breakers.

Particularly revealing is the background to Lexington and Concord. Gage’s descent on Concord was only his last misstep in a series of oppressive maneuvers. Disarming the Militia by means of the seizure of their

[g]unpowder was undoubtedly on Gage’s mind when he began sending his troops on marches in the [Massachusetts] countryside early in 1775. * * * Each march also tested the provincial warning system. Gage hoped that if five or six alerts turned out to be false alarms—the regulars were just marching along molesting neither persons nor property—the minutemen might grow weary or careless about responding.

Instead of growing weary, the Americans turned out in force every time the British appeared outside Boston. They saw these confrontations in different terms. When the British turned back, the minutemen were convinced they had done so because they had lost their nerve. [Thomas Fleming, The First Stroke: Lexington, Concord, and the beginning of the American Revolution (Washington, D.C.: National Park Service, United States Department of the Interior, 1978), at 35.]

So, neither Gage nor the Militiamen imagined that only isolated individuals were involved on the patriots’ side of things. Gage knew perfectly well that he was facing an organized body of trained men of a single mind. And by his reactions to their “turn[ing] out in force”, the Militiamen believed that they were deterring him, and gained confidence in themselves from that belief.

On the other hand, the British miscalculated on the basis of overconfidence born of hubris. About a month before Lexington and Concord, Major of Marines John Pitcairn—who later commanded the British troops at the moment when they fired on the Militiamen at Lexington—wrote to the Earl of Sandwich that

[o]rders are anxiously expected from England to chastise those very bad people. * * * I am satisfied that one active campaign, a smart action, and burning two or three of their towns, will set everything to right. Nothing now, I am afraid, but this will ever convince these foolish bad people that England is in earnest. [Letter of 4 March 1775, in The Private Papers of John, Earl of Sandwich, First Lord of the Admiralty, 1771-1782 (London, England: Navy Records Society, G.R. Barnes & J.H. Owen, Editors, 1907-1911), Volume I, at 59.]

After the battle, though,

[Lord] Percy[, one of Gage’s best officers,] recognized, with the eye of an intelligent soldier, one of the least understood realities of April 19th. The Americans who responded to the British challenge were not a mass of disorganized individuals; they were a well-supplied rudimentary army which had been organizing and training for 6 months. They were in a state of battle readiness, much better prepared to fight than the British soldiers who marched out of Boston. A heavy proportion of the American officers were veterans who knew how to lead men into battle. Their training and the knowledge that they outnumbered the British five to one (even counting all the men Gage had in Boston) added to the confidence with which they responded to the alarm when the fighting began. In short, April 19th was a victory of preparedness. It was not the product of spontaneous enthusiasm. The militiamen of Massachusetts knew their strength, and, more important, they knew they had the ability to use that strength effectively. [Fleming, The First Stroke, at 92-93.]

Apparently, history is repeating itself today, at least in part. In the manner of General Gage, present-day rogue politicians are systematically constructing a national police state and testing its mechanisms—experimenting to discover how much of the gall and wormwood of oppression ordinary people will swallow, and otherwise creating uncertainty, self-doubt, mutual distrust and recriminations, fear, apathy, and resignation among the populace. Simultaneously, they are expanding Americans’ personal economic dependency upon the corrupt political system—the apex of which abjection will arrive with the amalgamation of national health care, on the one hand, and control of the food supply by a cartel of gargantuan agribusinesses, on the other, so that from day to day every ordinary American’s very life and death will be in the unclean hands of rogue politicians and the special interests that pull their strings.


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But, in stark contrast to 1775, while all of this is going on, the Militia are exerting no deterrence whatsoever. Not because, of course, there are no “embattled farmers” (or men and women of every occupation and socio-economic class who suffer from oppression) today, but because today there are no Militia.

Deterrence is the first and most important line of defense. It is the essence of prudence, and of good strategy, too. As Sun Tzu taught, “to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting. Thus the highest form of generalship is to baulk the enemy’s plans[.]” [Sun Tzu on the Art of War (Taipei, Taiwan: Literature House, Lionel Giles translation, 1964 reprint of the 1910 edition), at 16.] Yet deterrence must be real, such that the enemy cannot believe in its ability to project power everywhere without fail, cannot imagine how to maintain its control over society (let alone regain the power it has lost), and cannot hope for final victory—so that, thus, the enemy finds itself psychologically defeated before it has begun to fight.

To provide deterrence sufficient for “the security of a free State” the size of the United States requires collective effort on a massive scale, not “individual rights” individually exercised in isolation. Also, in a constitutional republic, deterrence against aspiring usurpers and tyrants requires legal authority, which individuals generally lack except when exercising their absolute right of self-defense. The Constitution tells this country that “[a] well regulated Militia” is “necessary”. Not just desirable—but necessary. And the Constitution provides “the Militia of the several States” with all the authority they need. Under today’s conditions, only through the Militia could sufficiently large numbers of patriots be organized legally, economically, politically, and otherwise outside of the deceptive control-structures the Forces of Darkness use to maintain their illicit power. Once “well regulated Militia” are revitalized in enough States, they will far outnumber all of the thugs any unconstitutional police state could possibly deploy. And, knowing that, both rogue politicians and their myrmidons would have to think twice, thrice, and more about the harsh consequences to themselves of attempting to clamp down on the people.

Admittedly, at first such a situation might amount to no more than a Mexican standoff between the Forces of Darkness on one side and the American people on the other. But at least it would be a standoff—and that should suffice for starters. For Americans do not enjoy the luxury of even a standoff now. Rather, they are on a one-way street with the flow of traffic running against this country at an ever-accelerating speed. While deterrence provided a standoff, millions upon millions of outraged Americans could take political action, using the Militia as their focus, to reassert popular sovereignty—rationally, steadily, and above all constitutionally and peacefully.

One thing is certain: Without such deterrence, there will be trouble. As monetary and banking crises continue and worsen, the big cheeses and special-interest groups will sacrifice average Americans in order to save themselves, their wealth, their political positions, their social status, and all the other excessive perquisites and abusive privileges they have stolen, embezzled, or otherwise connived to obtain at this country’s expense. You will be taken to the cleaners, or worse, for all you are worth—through hyperinflationary depreciation of currency in order to lessen the real burden of debts, or through increased taxation, or through seizures of individuals’ property under “eminent domain” in order to transfer it to favored creditors of the National and State governments, or through some other scheme by which the powerful crime families in big business, high finance, and gangster politics contrive to loot the common man while casting the blame on someone else. And if you complain too vociferously as these “reforms” impoverish you, or if the whole rotten system suddenly implodes when the pressure of this economic madness becomes too great for it to bear, aspiring usurpers and tyrants will attempt to crack down with police-state repression. So, revitalizing “the Militia of the several States” is not optional—unless your and your family’s security, and this country’s survival as a free and prosperous republic, are merely optional.

Doomsayers and defeatists will contend that any recommendation to revitalize the Militia is merely academic or nostalgic, because the Militia are now “outmoded”. How or why, though, are the Militia “outmoded”? Simply by the mere passage of time since the late 1700s? Can time alone negate the constitutional principle that “[a] well regulated Militia” is “necessary to the security of a free State”? Does not the mess in which America finds herself today, coupled with the absence of the Militia, prove the wisdom of that principle, and the foolishness of having let so much time pass without putting it into practice? Are the Militia “outmoded” simply because Americans are not now properly organized, equipped, and trained for Militia service? With the proper will to do so, cannot the people organize, equip, and train themselves to whatever level they need? Who, after all, is paying for the huge police-state apparatus rogue politicians are now constructing? If Americans can afford to pay for their own oppression, cannot they afford to pay a little more for their own liberation? What choice do they have? Will they not be forced to pay a crushing price, unto their utter destitution, if they fail to act before it is too late?

If the Militia are “outmoded” today in fact—because Americans are unorganized, unequipped, untrained, and undisciplined—that is the fault, first, of rogue politicians in Congress and the States’ legislatures; and, second, of the voters themselves, who elected such subversives or incompetents. This sorry state of affairs cannot be attributed to the concept of “[a] well regulated Militia” as the Founding Fathers handed it down—or to anything else in the Constitution, which provides sufficient power to accomplish, and affirmatively commands, the proper result. In the last analysis, that America is treading water in History’s septic tank is We the People’s own responsibility. But, as well, that situation lies within We the People’s ability to correct right now. And everyone reading this commentary knows it to be true.

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Nonetheless, if you are not yet ready to help in revitalizing “the Militia of the several States” in your own locality through peaceful, constitutional means while time still remains on your side—if you stubbornly insist on your “individual right” “to keep and bear Arms”, but refuse to understand what that “right” really demands in terms of civic duty and collective action, even as your world comes tumbling down around your own head—then at least learn something practical that may prepare you for the certainty of an uncertain future. Take an NRA firearms course (or, better yet, several such courses)—“First Steps”, “Basic Pistol”, “Basic Rifle”, “Basic Shotgun”, “Personal Protection in the Home”, and (for those who qualify) “Personal Protection Outside the Home”—from NRA-certified instructors in your own home town. Then learn to be a real rifleman by participating in an “Appleseed” program. See appleseedinfo.org for full information and scheduling. So that, when Destiny finally summons you to exercise the “individual right” that you imagine is more valuable (and certainly less tiring) than revitalizing the Militia, or to go under altogether in the dustbin of History, you will at least be minimally prepared to do the one rather than the other.

2008 Edwin Vieira, Jr. - All Rights Reserve

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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

His latest book is: "How To Dethrone the Imperial Judiciary" ... and Constitutional "Homeland Security," Volume One, The Nation in Arms...

He can be reached at:
13877 Napa Drive
Manassas, Virginia 20112.

E-Mail: Not available


 

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My concern is what happens if the Justices somehow do rule favorably on the “individual-right theory.” I suspect that such a victory—after the champagne runs out—will have the perverse result of putting all the pro-Second Amendment people and organizations to sleep.