The Armed Forces and the Militia
Part 1 of 2
Part 1 of 2
By Dr. Edwin Vieira, Jr., Ph.D., J.D.
May 26, 2015
May 26, 2015
Since I first started to write columns for NewsWithViews in 2005 about the need to revitalize “the Militia of the several States”—a full decade ago—that subject has received scant support, sympathy, or even mention from the run of self-styled conservatives, patriots, constitutionalists, and (most depressing of all) champions of the Second Amendment who have made themselves prominent on the Internet. Instead, if they say anything at all about the matter, they tend to parrot the line put out by a certain notorious “‘poverty’ law center”, that anyone who mentions the word “militia” (except to disparage the concept) is some sort of “extremist” or other crackpot whose goal is “to overthrow the federal government”. Or they take the position that the only “militia” in which Americans can have confidence are “militia” with no connections to “government” at all—and that somehow the Constitution provides for such “militia”. Or they contend that Americans’ right to defend themselves with arms against private criminals and tyrants in public office has nothing to do with any “militia”, but is exclusively an “individual” right with no “collective” purpose or manifestation. Apparently, as far as these people are concerned, that the original Constitution incorporates “the Militia of the several States” as permanent, integral components of the federal system of government—and that the Second Amendment conjoins “[a] well regulated Militia” with “the right of the people to keep and bear Arms” in the very same sentence, and even declares that “[a] well regulated Militia” is “necessary to the security of a free State”—are facts without significance (or facts the significance of which has somehow escaped them).
These are not the only examples of the astoundingly tortuous mental gymnastics in which such people indulge, for what reasons Heaven alone can fathom. For, on the one hand, many of them predict with approval that Americans may soon have, and will want, to depend upon leaders in the Armed Forces who will thrust themselves into positions of political authority in order to save this country in the event of a nationwide crisis. Yet, on the other hand, not a few of these very same prophets repeatedly warn Americans that “the federal government” is plotting to deploy the Armed Forces to impose “martial law” throughout this country, under color of either a real calamity or a “false-flag” deception. Apparently, in these people’s imaginations, at one and the same time the Armed Forces are not just capable of, but also intent upon, both a coup d’état to enforce the Constitution and a coup d’état to eviscerate the Constitution. (Note that in the term “Armed Forces” I include both the regular Army of the United States and the National Guard—because, although people often assume that the National Guard is some sort of “militia”, it actually is not any kind of “militia” at all, but instead consists of the “Troops, or Ships of War” which the States may “keep * * * in time of Peace” “with[ ] the Consent of Congress”, pursuant to Article I, Section 10, Clause 3 of the Constitution.)
I presume, however, that the upper echelons of America’s Armed Forces are not yet composed predominantly of aspiring Bonapartists, Peronists, and other assorted uniformed usurpers and traitors who itch to seize control of this country under whatever pretext of faux patriotism or pressure of some manufactured crisis can supply them with a plausible excuse for the imposition of “martial law”. Rather, until the necessary experiment falsifies the hypothesis, I believe that the true patriots within the Armed Forces should, could, and (with the proper encouragement and education) would go a long way towards saving this country by doing exactly what that “‘poverty’ law center” and its partisans, dupes, and useful idiots of both the political “Left” and “Right” so deprecate. Through successfully promoting revitalization of “the Militia of the several States”, the Armed Forces would help to prevent the assassination of the Constitution, by foreclosing the deadly threat of “martial law”, not just now but once and for all. (As I have written a lengthy book, entitled By Tyranny Out of Necessity: The Bastardy of “Martial Law”, on this subject I shall not elaborate on it here.) Not only that, the Armed Forces would help to provide the institutions Americans desperately need in order (among other things) to secure honest elections, to introduce an economically sound and constitutional alternative currency within the several States, to put teeth into “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”, and to make meaningful the assertion of the Tenth Amendment that “[t]he 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”, both today and for the foreseeable future. (As I have written an even more lengthy book, entitled The Sword and Sovereignty, on this subject I shall not elaborate on it here, either.)
But how should this be done? Quite simply. Every time questions of “homeland security” arise in Congress and the States’ legislatures, spokesmen for the Armed Forces who are called as expert witnesses should make it a point to testify in favor of revitalizing “the Militia of the several States” as the missing, critical, and indispensable element in any coherent, comprehensive, and constitutional plan for “homeland security”. Not just referring to revitalization, not just recommending it, not just urging it—but demanding it in no uncertain terms. Explaining that no fully constitutional Militia now exist in any State in this Union. And emphasizing that something needs to be done as soon as possible to correct this situation—because, without revitalization of the Militia, this country very soon will find itself in exceedingly dire trouble with which the Armed Forces are almost entirely unqualified, as well as quite ill prepared, to deal.
That is what spokesmen for the Armed Forces should be telling legislators at every opportunity. If they did, their audiences would have to pay serious attention to what was being said. The big “mainstream media” could not get away with refusing to report the story. Average Americans would take notice. And even the mass of self-described conservatives, patriots, constitutionalists, and champions of the Second Amendment could no longer disregard or dismiss the matter!
Exactly why, though, should the Armed Forces take it upon themselves—indeed, perhaps go out on a political limb—to promote revitalization of “the Militia of the several States”? For two reasons: principle and practicality.
I. Revitalization of “the Militia of the several States” is a matter of imperative moral, political, and legal principle. Perhaps the most familiar of the mottos people associate with the Armed Forces is “Duty, Honor, Country”. But what is the very first and most important duty all members of the Armed Forces—and especially the higher ranks in the Officer Corps—owe to their country? Why, to do their best to understand, to protect, to defend, and to promote America’s foundational laws: namely, the Declaration of Independence and the Constitution of the United States.
Consider first the Declaration. Intent upon “let[ting] Facts be submitted to a candid world”, the Declaration set out a litany of abuses related to King George III’s deployment of “Standing Armies” and their imposition of “martial law” against the American Colonies:
He has kept among us, in times of peace, Standing Armies, without the Consent of our legislatures.—He has affected to render the Military independent of and superior to the Civil power.—He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:—For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:— * * * For depriving us in many cases, of the benefits of Trial by Jury:—For transporting us beyond Seas to be tried for pretended offences * * * .—[and] He has abdicated Government here, by declaring us out of his Protection and waging war against us.
These, the Declaration asserted, constituted “a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States”.
Moreover, the Declaration did not reflect American patriots’ mere disapproval, or disparagement, or even disgust with those abuses, but instead evidenced their downright denunciation of such wrongdoing. Those “repeated injuries and usurpations” constituted no less than violations of “the Laws of Nature and of Nature’s God”, so serious that they justified “the good People” of the Colonies in absolving themselves “from all Allegiance to the British Crown” and in severing “all political connection between them[selves] and the State of Great Britain”.
Self-evidently, in the light of this history, no member of America’s Armed Forces who takes seriously the motto “Duty, Honor, Country” should desire to give anyone the impression—or worse, grounds for suspicion—or worst of all, an actual basis in “Facts [to] be submitted to a candid world”—that he would ever advocate, participate in, or aspire to take a commanding rôle with respect to the sort of abuses in condemnation of which the Declaration excoriated George III. Nonetheless, the present-day para-militarization of State and Local police forces, the provision to those forces of military equipment by the Department of Defense, and the close coöperation being effected between the Armed Forces and State and Local “law-enforcement agencies” in various domestic “anti-terrorism” exercises all supply “Facts” from which “a candid world” could reasonably draw the conclusion that someone is preparing the Armed Forces to implement something akin to “martial law” somewhere within this country under some circumstances in the foreseeable future—as well as conditioning common Americans to accept this turn of events as somehow justifiable as well as inevitable. The obvious danger is that, once the precedent for such a deployment has been set anywhere within the United States, rogue public officials can concoct one ersatz “crisis” or another in order to rationalize further deployments of the Armed Forces just about everywhere, until “martial law” (in effect if not in name) becomes commonplace.
Unless Americans will have lost their wits entirely, though, they will eventually recognize these events as parts of what the Declaration of Independence described as “a long train of abuses and usurpations, pursuing invariably the same Object[, which] evinces a design to reduce them under absolute Despotism”—and the stage will then be set for desperate patriots once again to assert “their right” and “their duty, to throw off such Government, and to provide new Guards for their future security”. Yet that, one may rest assured, will be a consummation devoutly to be avoided, if at all possible. Certainly the Armed Forces should not want to be the immediate cause of such a calamity—indeed, to be the moving parties, as the Armed Forces are the only establishments that can actually attempt to impose “martial law” within America. Fortunately for them, they can always put that praiseworthy desire into effect. For they are the only parties capable of absolutely guaranteeing that “martial law” will never be imposed, because if they do not impose it no one else can.
Part 2 of 2
By Dr. Edwin Vieira, Jr., Ph.D., J.D.
May 26, 2015
May 26, 2015
To be sure, one must take seriously the objection that extraordinary situations may arise “in the Course of human events” when and where only some “martial” institution can adequately execute the “law”, and that this possibility must somehow justify some form of “martial law” administered by America’s Armed Forces, notwithstanding the Declaration of Independence’s unqualified animadversions on “martial law” administered by Britain’s “Standing Armies”. Obviously, though, the great statesmen who subscribed to the Declaration, along with the other enlightened patriots of that time, were not unaware of this seeming paradox—or of how to resolve it.
The solution to the apparent problem of “martial law” is found, in pellucid terms, in the Constitution. No spurious distinction between America’s Armed Forces of today and Britain’s “Standing Armies” of yesteryear need be attempted. For “martial law” administered by Americans can no more claim a place within the Constitution than “martial law” as administered by the British found favor in the Declaration. That is, as a matter of constitutional law, “martial law” in that sense can find no place at all.
As the Preamble to the Constitution attests, “WE THE PEOPLE * * * ordain[ed] and establish[ed] th[e] Constitution”. However, WE THE PEOPLE enjoyed the legal authority to do so only because the Declaration of Independence “solemnly publish[ed] and declare[d], That the[ ] United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES; * * * and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do”. But “may of right do” in accordance with what standards of “right”? Obviously, the standards established by “the Laws of Nature and of Nature’s God” which, as the Declaration explained, alone “entitle[d]” Americans “to assume among the powers of the earth, [a] separate and equal station”. Those “Laws” establish that “Governments are instituted among Men, deriving their just powers”—and only “just powers”—“from the consent of the governed”. Even the People themselves cannot consent to be governed by any “Form of Government” purportedly vested with “[un]just powers”. (Which, of course, is why the Preamble lists “establish[ing] Justice”, not “imposing Injustice”, as one of the Constitution’s six goals.)
Plainly enough, America’s Founders did not consider “martial law” such as George III attempted to fasten upon them to be a “just power” under “the Laws of Nature and of Nature’s God”, or they would not have catalogued and condemned it in the Declaration of Independence as part of “a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny” on the King’s part. Therefore, imposing “martial law” of that ilk on America’s citizenry cannot be included within the “Acts and Things” which the Declaration asserted that “Independent States may of right do”. As an unjust power, it could not have been delegated to any “Form of Government” by “the consent of the governed” in the late 1700s—neither by WE THE PEOPLE to their State governments in the several States’ constitutions, nor by WE THE PEOPLE to the government of the Union in the Constitution of the United States. And because a power to impose “martial law” could not have been delegated to any “Form of Government” in America then, no “Form of Government” in America can claim to exercise such a power now. “Martial law” is as morally, politically, and legally impossible under the Constitution today as it was impossible under the Declaration of Independence in 1776.
Nonetheless, the Constitution does provide for certain “martial” institutions to which it assigns the authority, responsibility, and capability “to execute the Laws of the Union” “when called into the actual Service of the United States”: namely, “the Militia of the several States”. U.S. Const. art. I, § 8, cls. 15 and 16; and art. II, § 2, cl. 1. It delegates no such authority or responsibility to the Armed Forces, though. See U.S. Const. art. I, § 8, cls. 12 through 14; and art. II, § 2, cl. 1. So, if “martial law” is defined in general terms as the execution of the “Laws of the Union” (or of the several States each within her own jurisdiction) by a “martial” institution, then the only institutions constitutionally entitled, and required, to engage in such execution are “the Militia of the several States”, either “when called into the actual Service of the United States” or otherwise in the performance of duties mandated to them by their own States.
By delegating to the Militia—and to the Militia alone—the right, power, and duty to execute the laws, the Constitution solves the apparent paradox of “martial law” mentioned above. For, although the Militia are governmental institutions of the States, and permanent components of the federal system, they are not “standing armies”. Perhaps nothing makes this dichotomy clearer than Article 13 of Virginia’s original Declaration of Rights in 1776: “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty”. Similarly, the Second Amendment declares “well regulated Militia” to be “necessary to the security of a free State”. So the “law” executed by the Militia, even in a “martial” fashion were the circumstances to warrant it, would always be executed by THE PEOPLE themselves for the ultimate purpose of securing their own freedom.
The problem which confronts America today is that, if constitutional “martial law” were ever needed in response to some major nationwide crisis, constitutional “martial law” could not be had. For the constitutional “Militia of the several States”, for all intents and purposes, do not exist—and therefore cannot be “called into the actual Service of the United States” in order “to execute the Laws of the Union”, or called forth to fulfill the analogous duty for their States. Some Americans have voluntarily enrolled in the National Guard, which a statute deceptively denominates as “the organized militia”, when actually it is no “militia” at all—whereas all other Americans who are eligible for service in the Militia have been consigned by that same statute to what it calls “the unorganized militia”. See 10 U.S.C. § 311. Relevant statutes of the States follow the same pattern. As the name implies, “the unorganized militia” is precisely that: unorganized, unarmed, undisciplined, untrained, and ungoverned. Contrast U.S. Const. art. I, § 8, cls. 15 and 16. But, as American legal history proves beyond any possible doubt, an “unorganized militia” is as much of a contradiction in terms as a “square circle”—and therefore is a constitutional impossibility. (See my book The Sword and Sovereignty.)
What obviously needs to be done in order to forefend the danger of “martial law” of the sort denounced by the Declaration of Independence, as well as to provide for the possibility that a “martial” execution of the laws allowable under the Declaration and the Constitution may become necessary in this country the not-too-distant future, is for the “martial” institutions which rogue public officials expect will impose “martial law” on common Americans—that is, the Armed Forces—to state publicly, categorically, and repeatedly that: (i) the imposition of “martial law” in any form is not and cannot be the constitutional mission of the Armed Forces; and (ii) execution of “the Laws of the Union” and of the several States in a “martial” fashion under exigent circumstances is the constitutional prerogative of “the Militia of the several States”, and only the Militia. Inasmuch as no one is better positioned at the present time to make this clear to legislators and the general public than are the Armed Forces themselves, it is their duty to do so.
II. Revitalization of “the Militia of the several States” is a matter of practical necessity. Unfortunately, even with a constitutional principle in one hand, today one still needs an Abraham Lincoln Federal Reserve Note in the other hand to be able to buy a small espresso in a fashionable coffee shop. That is, constitutional principles command very little purchasing power in the contemporary “real world” of egotism, materialism, and hedonism, which allow only two notes on their discordant scale: namely, “me...me...me” and “dough...dough...dough”. So even the Armed Forces will need some very practical incentives to promote revitalization of the Militia. Some of the most important of these, however, are not difficult to identify.
a. Just as an authority “to execute the Laws of the Union” forms no part of the Armed Forces’ express constitutional mandate, so too does it fall outside, and would be expected to hinder the fulfillment, of their vital practical mission to deter aggressors in foreign venues and to defeat them if deterrence fails and Congress must “declare War”. (Surely it is no accident that Congress’s power to do so, set out in Article I, Section 8, Clause 11 of the Constitution, is immediately followed by its powers “[t]o raise and support Armies” and “[t]o provide and maintain a Navy” in Clauses 12 and 13.) Revitalization of “the Militia of the several States” will enable the Armed Forces to devote their undivided attention to their constitutionally proper rôle, relieved of the possible burden of being diverted into domestic difficulties through deployments that smack of “martial law”. The Militia would “secure the home front” by maintaining law and order domestically in its proper form: namely, what the Second Amendment denotes as “a free State”.
b. In the event of an unavoidable nationwide domestic crisis, such as the collapse of the monetary and banking systems, revitalization of the Militia would be requisite, for the obvious reason that the Armed Forces could never deploy enough “boots on the ground” to reëstablish and then maintain law and order in every locality where significant social unrest arose and civil disobedience broke out. Part of the explicit constitutional authority of the Militia is to “suppress Insurrections”. U.S. Const. art. I, § 8, cl. 15. And enrollments in revitalized Militia would outnumber by far the total possible enlistments in the Armed Forces. Even if the Armed Forces could mobilize forces arguably sufficient in raw numbers to quell violent disturbances throughout the entire country, those forces would face innumerable, often novel, and predicably insuperable difficulties in dealing with other untold problems peculiar to the thousands of unfamiliar Localities they would be called upon to police. Revitalized Militia, in contrast, would be composed entirely of Local citizens—raised, organized, specially trained, and always deployed at the Local level—and imbued with intimate knowledge of and sympathy for their Localities and the people who lived there, which would enable them to deal intelligently and effectively with all of the disparate situations which arose in different areas of the country.
c. A collapse of the monetary and banking systems is not the only conceivable nationwide or regional catastrophe which might threaten this country in the near future. Consideration must also be given to pandemics, famines, natural disasters, and massive industrial failures or accidents, to name but a few. The Armed Forces are not prepared, and therefore cannot be expected—let alone ordered—to deal with all of the complex challenges each and every one of these events could bring forth. Indeed, the Armed Forces can never be prepared for such duty, because they have few, if any, places in their tables of organization for people with the various kinds of highly technical knowledge and specialized experience which would be vital to draw upon in the event of such crises. In contrast, being composed of just about every adult American not enrolled in the Armed Forces, “the Militia of the several States” would not just as a matter of fact have access to, but also as a matter of law could call upon and dispose of, almost the entirety of national talent in every relevant field—with many, if not the vast majority, of these people already resident in, and therefore familiar with, precisely those areas in which the crises would most seriously manifest themselves.
d. Even in the event of an actual invasion of the United States, the Armed Forces would need support from the Militia. That support would be forthcoming, because one of the explicit constitutional responsibilities of the Militia is to “repel Invasions”. U.S. Const. art. I, § 8, cl. 15. Moreover, that support would likely be necessary. For any initially successful invasion would involve hordes of enemy troops which would have to be fought with every tactic available, from direct counterattack at the invasion sites to guerrilla and partisan warfare throughout every part of the country into which the invaders penetrated—which types of warfare would require full and unstinting participation by the Militia.
To expect such a “Red Dawn” scenario always to be confined to movie theaters is naïve in an era in which America’s borders apparently cannot be made secure against even an invasion of illegal aliens composed almost exclusively of unarmed men, women, and children. (And, by revitalization of the Militia, even these now-porous borders could finally be sealed, without deployment of the Armed Forces.)
A final note of concern and caution. In the present state of political, economic, and social uncertainty and unrest throughout America, the Armed Forces will surely forfeit the confidence of every thinking citizen if, instead of supporting revitalization of “the Militia of the several States”, they attempt to impose “martial law” anywhere within this country when some major crisis breaks out (for which eventuality many observers believe they are training right now). For, by such behavior, they will prove “to a candid world”:(i) that they are politically unreliable “Standing Armies” with scant concern for the Constitution; and, worse yet, (ii) that they are willing to aid and abet America’s dysfunctional and disloyal political-cum-economic Establishment in “affect[ing] to render the Military independent of and superior to the Civil power” throughout this land—even if that turns out to be part and parcel of the Establishment’s “design to reduce the[ People] under absolute Despotism”. Confidence so lost can never be regained. Once the Armed Forces have alienated themselves from the people, the full consequences of their breach of trust may be unpredictable. But they surely will be prove to be undesirable in the extreme
© 2015 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