'Homeland Security' Means Revitalizing US Militia

by DR. EDWIN VIEIRA, JR., PhD, JD

Throughout the original thirteen Colonies and States, the laws required each Militiaman to buy his own arms and ammunition in the free market -- thus implicitly guaranteeing the existence and operation of such a market.

If he were under 21 years of age, or an apprentice or servant, though, a Militiaman could require his parents or employer to supply him with a suitable firearm and ammunition. If he were one of the working poor, he might receive assistance from his local government in obtaining a job through which to earn the money to buy them.

And local governments, or very often the Militia, provided publicly owned arms to those individuals too poor to purchase them on their own account. That is, We the People always required themselves to provide themselves with firearms, either directly as individuals, or indirectly through the Militia in which they served or the public officials whom they elected.

Moreover, the Militia statutes of that era generally protected every Militiaman's personal firearms from encumbrance or seizure for the payment of his debts--and in many instances of his taxes, too.

If not explicitly exempted by statute because he held some important public office or practiced some essential profession or trade (such as legislators, physicians, millers, ferrymen, or ministers of religion), every Militiaman was required to bear his firearm and ammunition into the field on a regular basis in order to train in organized formations so as to become proficient with that firearm according to the military tactics of the day.

And almost all Militiamen--including even most of those ordinarily exempted, as well as many normally excused because of old age or disability--were subject to duty in cases of "alarm" (such as invasion or insurrection), where the security of the Colony or State was in immediate and grave peril.

In addition, many of those technically exempted nevertheless served the Militia, such as public officials (who were often high-ranking Militia officers), physicians (who staffed medical units), and conscientious objectors (who performed not only non-military duties but also the dangerous functions of scouts and spies).

Typically, too, those not exempted were required by law themselves to serve in, or to provide able-bodied substitutes for, the regular "watch" (by night), "ward" (by day), and "patrols" of plantations (in the South); and to be subject to "drafts" from the Militia for actual service in the field in times of war.

All of these requirements the Militia statutes enforced with monetary fines levied on defaulters' property, and imprisonment imposed on the defaulters themselves. The Militia were anything but voluntary organizations, their membership anything but limited, the duties they imposed anything but avoidable, and the public services they performed anything but dispensable.

So, in "the Militia of the several States" prior to 1787,

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every man was required by law to acquire and keep his own personal firearm and ammunition (unless he was so poor that the public had to provide them for him);
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every man was protected by law in his possession of firearms, so that he could always perform his Militia duties;
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private industry and commerce provided firearms and ammunition for the Militia through the free market; and
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almost every man so armed and provided was compelled by law to train, and required to perform, personally or by a substitute, a wide range of military and police duties for "homeland security".

Being the whole community in arms, the Militia of every Colony and independent State constituted the best security that could possibly be devised for what the Second Amendment calls "a free State"--not only against invasion, insurrection, rebellion, and widespread violations of the laws, but also against those especially dangerous violations of the laws by erstwhile public officials known as "usurpation" and "tyranny".

All this is no merely quaint story-telling about men attired in knee-britches and three-cornered hats, or the anachronistic and academic stuff of Colonial re-enactors and museums at Lexington and Concord.

This is what "the Militia of the several States" actually were, codified in every relevant statute of every Colony and independent State throughout a period of almost 150 years prior to ratification of the Constitution. And therefore this is what "the Militia of the several States" still are, because that term incorporated in the Constitution must be interpreted in light of its historical antecedents as known to the Founding Fathers, and continue to be given the selfsame construction until the Constitution is amended (which, with the assistance of Providence, in this particular it never will be). See Eisner v. Macomber, 252 U.S. 189, 206 (1920). The only possible difference to be countenanced today actually amounts to an expansion: Now, with the legal emancipation of women, "the Militia of the several States" arguably includes all able-bodied females, who might be called to serve in some capacities in the most critical, last-ditch situations of State and National defense, freeing men for more arduous duties.

So, constitutionally YOU very likely--indeed, almost surely--are a member of "the Militia of the several States" in the State in which you live.

And, if so, the Constitution imposes a duty on YOU to keep and bear arms in the Militia for the defense of your State and Nation, because that is the meaning of the Militia: the people in arms, and therefore the people with arms. And, most importantly, their own arms: their own private property in their own personal possession.

Moreover, because the duty to keep and bear arms is of constitutional stature, each individual enjoys an absolute constitutional right as against every level, department, or branch of government--National, State, and local--to fulfill that duty.

Inasmuch as the Constitution requires all of We the People eligible for the Militia to possess their own private arms in their capacity as a governmental institution, then on no account, for no reason, and by the application of no power can any level of government disarm any of them. Indeed, to argue that any other branch of government may disarm the one branch of government that the Constitution specifically requires to be armed is so illogical as to verge on insanity.

Which, of course, is why the Second Amendment speaks specifically of "the right of the people to keep and bear Arms", not vaguely of "a" right or "some" right. "[T]he right", preexisting the Constitution, with which every American of that era was perfectly familiar, and which most of them personally exercised. So, too, the Second Amendment links "the right * * * to keep and bear arms" with "[a] well regulated Militia", because the right to keep and bear arms is inextricably linked to the duty to keep and bear arms, the former being necessary for fulfillment of the latter.

"A well regulated" Militia is what every Colonial and State statute mandated for almost 150 years prior to ratification of the Constitution: everyone armed with his own personal firearm and ammunition (unless too poor to buy them for himself, in which case the Militia or other public officials were required to provide them at public expense).

"The security of a free State" is an armed people--and therefore "a free State" is one in which everyone possesses his own firearms, knows why he is armed, opposes every attempt to disarm him, and with his arms and training fulfills his duties to provide "security" in just proportion with everyone else.

Now, the Constitution delegates to Congress the power "[t]o provide for organizing, arming, and disciplining, the Militia". Article I, Section 8, Clause 16. And with such a power comes a duty to exercise it, whenever necessary and proper. Compare United States v. Marigold, 50 U.S. (9 Howard) 560, 567 (1850), with the Preamble ("provide for the common defence"); Article I, Section 8, Clause 18; and Article VI, Clause 3 ("Oath or Affirmation, to support this Constitution").

True, Congress does make some provision for voluntary training of common Americans in marksmanship. See Title 10, United States Code, Sections 4307 to 4313.


But has Congress required YOU to obtain, or provided YOU with, a firearm and ammunition; or assigned, or even offered, YOU any duties in some program of "homeland security"?

Not unless you have happened voluntarily to join the National Guard or the Naval Militia, which Congress wrongly classifies as "the organized militia". Title 10, United States Code, Section 311(b)(1). (I say "wrongly", because the National Guard and Naval Militia were not in existence during the pre-constitutional period; and much of their structures, duties, and operations bears no connection to, or may even contradict, the characteristics of the constitutional "Militia of the several States".)

Even then, as a National Guardsman you would not keep your assigned firearm in your personal possession at home--as necessarily would a member of "the Militia of the several States" (and as do the Swiss, a people with a militia history longer than that of Americans).

Worse yet, what if you have been relegated to "the unorganized militia", which Congress defines as every able-bodied male "at least 17 * * * and under 45 years of age" who is not a member of the National Guard or the Naval Militia--and which by default includes as well every male from 16 to 17 and over 45 years of age who is constitutionally a member of "the Militia of the several States", but is ignored entirely by the modern statute? See Title 10, United States Code, Section 311(a) and 311(b)(2).

If you are lumped into this "unorganized militia" you are just that: unorganized, unarmed, undisciplined, untrained, unsupplied, undeployed, and unwanted as a matter of statute--thoroughly disregarded by Congress, wholly disconnected from your necessary constitutional rights and duties, dispensed with, and withal dispersed within an impotent, disoriented rabble.

What about your State? If Congress fails or refuses to perform its constitutional duty to "arm[ ]" "the Militia of the several States", as it surely has with respect to what it calls the "unorganized militia", then each State, to fulfill her own constitutional responsibility, must exercise her reserved power to arm and train her own citizens for "homeland security". See Houston v. Moore, 18 U.S. (5 Wheaton) 1 (1820).

But, other than maintaining their State Guards (which as sub-units of the National Guard are not true State "Militia"), most States have done next to nothing on this score, either. Here (as in so many other instances), States' rights and States' duties have decayed through States' ignorance and States' apathy into States' wrongs.

To be sure, one might say that Congress and the States have by default left the vast majority of Americans in the "unorganized militia" to arm and accoutre themselves by the method used most frequently in the pre-constitutional Colonial and State Militia statutes: self-help through resort to the free market.

After all, "[t]o provide for * * * arming" does not necessarily require actual arming by the government itself from public arsenals. (Indeed, this is probably the least desirable way for Congress and the States to fulfill their responsibilities on that score.) Rather, Congress and the States can "provide for * * * arming" by relying on individuals to arm themselves through private commerce.

But, if the free market is the means on which Congress and the States have settled for these "unorganized" Americans to fulfill their constitutional duties to be armed in "the Militia of the several States", why do Congress and the States not require common Americans to purchase, possess, and train with their personal firearms, as did every pre-constitutional Militia statute?

And why do Congress and the States not require properly armed and instructed Americans to participate in some even minimal program of "homeland security", as every pre-constitutional Militia statute teaches that every true constitutional Militiaman should? Indeed, how could atomized Americans effectively arm and train themselves for any State or National program--which, for effectiveness, would necessarily require a high degree of cooperation among participants?

And why, instead of organizing, disciplining, and especially arming and training We the People, do politicians, legislators, judges, trial lawyers, the intelligentsia, and "the beautiful people" of New York, Hollywood, and every intellectual fever-swamp and moral cesspool in between try their damnedest to disarm common Americans at every turn? To outlaw every type of firearm and ammunition they can, but especially those that are particularly well suited for Militia purposes, such as so-called "assault weapons" not too long ago, or .50 BMG caliber rifles today?

To impose every possible legal restriction on the possession and use of such firearms and ammunition as the Establishment still suffers common Americans to retain?

To hamstring the private firearms industry with bureaucratic regulations and frivolous (but horrendously expensive) lawsuits? And to treat "homeland security" and "the Militia of the several States" as totally disconnected? For two fundamental reasons:

First, if "homeland security" were based to any significant degree on "the Militia of the several States", We the People would influence the course of "homeland security" to a very significant degree.

Revitalized Militia would mobilize millions upon millions of individuals for hundreds of different programs, and bring with them the innovation and experimentation that emanate from minds not mired in the ruts of rigid bureaucratic centralism, and not incapacited by some statist ideology from imagining solutions to the conundrums of "homeland security" that are fully compatible with human liberty.

No longer would "homeland security" depend for direction on exclusive cliques of professional "security" and "intelligence" operatives, including former high-ranking KGB and Stasi agents. (In fairness to such people, though, they surely do know a great deal about terrorism. Yet their expertise lies more in imposing terrorism than in exposing and opposing it--which perhaps suggests why they are on the Department of Homeland Security's payroll.)

Rather than suffering from a national police state composed of elitists and careerists, with its tentacles slithering into every State and local police department, America would enjoy security through thoroughly local responsibility and control--because nothing could be done from above that would not have to be approved from below, what with tens of millions of organized Militiamen arrayed against orders of magnitude fewer operatives in the professional security agencies and police forces.

With "homeland security" properly focused in the States and localities, rather than centralized in Washington, D.C., America would return to the Founding Fathers' federalism, rather than continue to expand Franklin Roosevelt's federalization.

In the most practical possible way, We the People would finally realize their own personal responsibility to maintain "a Republican Form of Government"--that, in the final analysis, "homeland security" means and demands political control by We the People, which We the People must provide directly.

Knowing their true constitutional status, We the People would recognize the source of their authority; from their authority, the source of their power; and from their power, the source of their security. That, in the final analysis, all political power--for both good and evil--comes out of the barrel of a gun was not the discovery of a Chinese Communist. See Quotations from Chairman Mao Tse-tung (1966), page 61.

As the Second Amendment observed much earlier, in aid of a far worthier cause, "[a] well regulated Militia" is "necessary to the security of a free State".

The same insight from two such radically opposed sources emphasizes that guns do not oppress people; some people oppress other people--and generally accomplish that end by depriving the oppressed of the means of opposing their oppressors. Thus, in the hands of the oppressed, firearms are the indispensable instruments of freedom.

So, once "the Militia of the several States" were revitalized for the purpose of providing true "homeland security", the genie of true Republicanism would be out of the bottle.

And could the Establishment ever force it back in, after screaming so loudly and for so long about how absolutely vital "homeland security" is?

At that point, the Establishment would be exposed as the paper tiger it is.

Second, "homeland security" localized in "the Militia of the several States" is the most effective way to protect Americans against the real threat to their liberties.

America will never lose her freedoms because of attacks from some hodge-podge of foreign "terrorists".

The actual, acute danger lies in the organized efforts of home-grown subversives, boring from within the political process, the bureaucracies, the courts, the media, academia, the cultural sewers that spew out "entertainment", and all the other critical points of entry into the machinery of mass psychological manipulation, then political power, then usurpation, then tyranny.

And which subversives are now using a false concern for "homeland security" as their excuse to amass for themselves ever-increasing, ever-more-abusive powers in its name.

For the most pertinent example, no foreign "terrorists" enjoy either the power or the opportunity to disarm and render helpless common Americans by imposing Stalinist "gun control" on this country. But such Senators as Edward ("Chappaquiddick Ted") Kennedy, Charles Schumer, Dianne Feinstein, John Kerry, Hillary Clinton, and the rest of their Bolshevik mob are both positioned and prepared to propose (and, with the assistance of Congressional co-thinkers, fellow travellers, and useful idiots, perhaps even to pass) legislation as draconian as any the Georgian Bandit ever imagined. And they are not alone. No, indeed.

State and local politicians, the media, the organized legal and medical professions, the intelligentsia, the modernist churches and synagogues, and all the Establishment's other mouthpieces, front groups, camp followers, and hangers-on are constantly inveighing about how "guns cause crime", and are therefore bad--except, of course, when wielded by the Armed Forces, the Gestapo-like agencies of the General Government, and the increasingly para-militarized State and local police, in the hands of which firearms of the most savagely lethal varieties are doubleplus good, and would never, ever, be used to further usurpation or tyranny.

Americans are being indoctrinated that their country should be covered from sea to shining sea with "gun-free zones" in which all "civilians" are stripped of the tools most effective for defending themselves -- while every miniscule hamlet is to be infested with para-military squads in battle dress, staring down the public with menacing glances and body language, backed up by automatic weapons and armored vehicles (thereby demonstrating the type of "homeland security" the Establishment really believes these places are going to get).

Most ominously, by being relegated to the "unorganized militia" and thus prevented from performing their constitutional duties, average Americans are being demeaned as too unimportant, unqualified, ignorant, irresponsible, and especially politically unreliable to be "call[ed] forth" for the purposes as to which the Constitution explicitly and unqualifiedly requires their services.

By being excluded from providing and participating in "homeland security", common Americans are reduced to the subjects, passive recipients, or targets of "homeland security".

Each repetition of the term, however, must receive a different emphasis. For it is hardly mere paranoia to suspect that the "homeland security" of which Americans are to be the subjects, passive recipients, or targets will be drastically different from the "homeland security" they would provide for themselves if they had the opportunity -- and, indeed, were actually required by law -- to do so. Indeed, is not the proof of the pudding being cooked the ingredients the Establishment has carefully excluded from its recipe for "homeland security"?

As merely passive recipients, every American will be exposed to whatever variety of "homeland security" the Establishment -- working through Congress, the President, the top brass in the Armed Forces, the intelligence bureaucracies, and sundry State and local police departments following orders from Washington, D.C. -- decides to impose.

And common Americans had better be prepared to swallow whatever is dished out, even if it stinks of "maximum security".

Because the kangaroo courts will surely hold resistance (perhaps even loud remonstrance) not to be "lawful", and therefore will subject obstreperous dissenters to civil or criminal penalties.

If all this is enough to convince you that America desperately needs to revitalize "the Militia of the several States", as the Constitution intends them to function, then steel yourself for a great deal of work, from the ground up, individual by individual, community by community, State by State.

Fortunately, the first step is the easiest. Only a single question needs to be answered:

Are YOU doing as much as you can to fulfill your own, personal constitutional duty in or for "the Militia of the several States"?

Right now?

That is, do YOU possess a firearm and ammunition suitable for the Militia; and, if so, are YOU becoming proficient with them?

Have YOU taken a firearms training course from some accredited source?

Or are YOU sufficiently self-directed to be preparing yourself?

And are YOU studying the problems of "homeland security", and thinking about how common Americans can--and must--solve them?

If not, YOU need to begin by obtaining a firearm and learning how to use it (LAWFULLY, of course), as well as by learning as much as you can about "homeland security" -- not only what some public officials say that it is, but more importantly what the Constitution teaches that it ought to be, and how to get that job done through public education and legislation in your State.

Then convince at least two other people to do the same, and ask each of them to convince two more, and so on. Most importantly, make sure that everyone knows why.

To my readers:

I am now working on a constitutional program of "homeland security" based on "the Militia of the several States". This is probably the most important project on which I have ever embarked.

It will also be the most difficult to fund, because next to no one among the powers that be, "conservative" or "liberal", wants to see the Militia revitalized.

Therefore, I appeal to common Americans for whatever financial support they can offer to advance this work. Contributions should be marked "Militia Project", and mailed to me at 13877 Napa Drive, Manassas, Virginia 20112. All contributions will be hypothecated to this work only.

Even if you cannot contribute, please drop me a line to let me know that you believe this effort is important.

Thank you in advance.
Edwin Vieira, Jr.

© 2005 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

His latest book is: "How To Dethrone the Imperial Judiciary"

He can be reached at:
P.O. Box 3634,
Manassas, Virginia 20108.

WHEW! I even TOOK "Poli Sci" in college, & this STILL makes me think of I don't know ANYthing!

V_E_R_Y, VERY, TIMELY!! THANKS!

Edwin is very good. He has a 75 page, detailed explanation of exactly who and what the founding fathers intended the militia to be. I'll be posting it here in sections as time permits.

I feel compelled to add something more.

Dr. Rievera presents me with one of the only times that I've REALLY REALIZED a GENUINE hope (beyound PURE FAITH) that there R_E_A_L_L_Y are HIGHLY INTELLECTUALLY capable men P_U_S_H_I_N_G our "cause".

This is NOT a "dig" at the main body of OUR Militia Movement, but, as I was raised on University Campuses for much of my childhood & youth, (BOTH of my parents being double degreeded, & my father a Professor & head of two departments), & thus I was exposed & involved in the "Political machine" early on, I've always known that EVERY VALID MOVEMENT, throughout History has ALL WAYS had, and HAD to have, at it's helm, SUPURB INTELLIGENCIA. (Just note the "Founding Fathers", MARX & LENIN, etc.).

Dr. Rievera states the case & what I believe SHOULD become our VISION & GOAL, so elloquently that I am almost inspred to "RISE UP & SHOUT"!

BUT! Then my more cynical self arrises & reminds me that:
#1]The "MANIPULATORS" are SO FAR ALONG in their plan that they no longer mind if their plan is exposed(ala "Conspiracy Theory", etc. -- note Mel Gipson's present cruxifiction)
#2] The American branch of the "MANIPULATORS" is so strong as to actually be running this Govt.'s Foreign Policy BLATANTLY & OPENLY...(vis a vis: Lebenon)
#3] Dr. Rievera's disertation of the ECCONOMICS of our present National reality is so immenantly pertinant, that he deserves a "prophets' reward"!
#4] The events, thruout the Globe depict an ominous future that almost TOO closely resembles the Biblical description of the "LAST DAYS" to give me hope that we will actually achieve such a MARVELOUS GOAL as stated so elequently by Dr. Rievera.
#5] And, LASTLY, but not leastly, A_L_L of my above cynicism tells me that Dr. Rievera's "vision" & "goal" (his "MILITIA PROJECT" as he calls it), is going to N_E_E_D as MUCH ASSISTANCE & distrubution as is H_U_M_A_L_Y POSSIBLE!! Because it's going to take a H_U_G_E SHOVE & PUSH from behind to get MOST folks off of theirs! DAMN! I wish I was 25 again! WHAT A CAUSE!!
WE NEED TO ALL BEAT HIS DRUM!!! FAR & NEAR!! DAILY!! and do NOT cease & desist for A_N_Y REASON!! This DEFINATELY will be the LAST HURAAH! YAHOOOOO!!! HELL YES! The South W_I_L_L RISE AGAIN!!!! Yippeeeee!

I'll have to read this one over several times but for now I am truly humbled. I have known and now see that knowledge is Power. I now see that I know very little. I can slip through the boonies with the best, but this is beyond me. This is on a plane above arguing against, although there will be those who will try. The Dr. is in need of vigilant prayers! Uh is he still alive? Any farther attempt at words on my part would be useless. Consig thanks for the link to this>

A. A Brief History of the Militia in the United States

Though largely forgotten, militias were once an important institution in America.[74] The Constitution, for example, mentions militias in several places,[75] most notably in the Bill of Rights.[76] James Madison considered the (p.196)militia to be one of the bulwarks of American liberty.[77] Madison's sentiment was echoed by the famous nineteenth century constitutional commentators Joseph Story[78] and Thomas Cooley.[79] But what was the "militia" of which the Framers wrote? In a nutshell, the Framers' militias were "comprised [of] all males physically capable of acting in concert for the common defense,"[80] or, in other words, they were "citizens primarily, soldiers on occasion."[81]

Militias were part of an inherited, English, radical Whig ideology vigorously opposed to "standing armies"--those armies comprised of professional soldiers--as being inimical to the liberties of the people.[82] The historian (p.197)J.G.A. Pocock described the tradition as

a civic and patriot ideal in which the personality was founded in property, perfected in citizenship but perpetually threatened by corruption; government figuring paradoxically as the principal source of corruption and operating through such means as patronage, faction, standing armies (opposed to the ideal of the militia), established churches (opposed to the Puritan and deist modes of American religion) and the promotion of a monied interest .... Not all Americans were schooled in this tradition, but there was (it would almost appear) no alternative tradition in which to be schooled.[83]

Not surprisingly, this Whig tradition, also called republicanism or civic republicanism,[84] is an intellectual antecedent of Communitarianism.[85]

Independent militias were sometimes organized prior to the Revolution, in part as a counterweight to the Tory-controlled regular militias,[86] and worked closely with the military force of the Continental Army.[87] During the Revolutionary War, these colonial militias performed admirably,[88] particularly when operating close to their home towns and villages, although they often were disparaged by professional military officers as ill-disciplined and unsuited for extended campaigning. This clearly illustrates that militias were primarily intended to be defensive; indeed, those who refused to leave their homes and towns still played an important role in preventing any counterrevolutionary activity from establishing a foothold. Nevertheless, as Professor Robert Cottrol has written, it is important to keep in mind "that the armed population and the militia were intended to serve more than a simple military function. They were seen as fulfilling political and perhaps moral purposes as well."[89] This latter point seems lost on most modern critiques (p.198)of the militia as an institution, which seem solely concerned with the militia's military capabilities, or lack thereof.[90]

As previously mentioned,[91] the militia was featured prominently in the text of the Constitution, and heated debates occurred regarding the extent of federal government control over the state militias.[92] In the end, there was a compromise:[93] the federal government retained the power to call up the militia and to prescribe its training;[94] the states retained the power over the militia members' actual training and could prescribe the method by which officers were chosen.[95]

Initially, Congress took seriously its responsibility toward the militia,[96] passing an act in 1792 that detailed uniform standards for the militia of all (p.199)states, down to the number of rounds of ammunition a militiaman was expected to have on hand.[97] As Hamilton foresaw,[98] by the mid-nineteenth century, the militia had declined.[99] The federal government came to rely more on a professional military, and the states simply were unwilling to shoulder the financial burden of maintaining militias.[100] Nevertheless, the militia was still seen as a valuable community institution.[101] The decline, no doubt, accelerated as the United States began to aspire to empire in the late nineteenth century. National authorities, frustrated by their inability to send state militias outside the country's boundaries, sought a new organization--one that could remain under the nominal control of the states until such time as it was called into service of the United States.[102] In 1909, the National Guard was born.(p.200)
B. The National Guard and the Death of the Universal Militia

The Dick Act,[103] passed in 1903, "signified the ... [end] of the old, ... state-controlled, system"[104] by introducing significant federal requirements for the training and equipping of state militias. The National Defense Act of 1908[105] followed the Dick Act and authorized the use of the newly constituted "National Guard" to serve outside the boundaries of the United States.[106]

Congress passed another national defense act[107] in 1916 as part of general preparedness in the face of an escalating European war. Among the increased requirements placed upon the states (and upon the United States Army, the administrator of the requirements) was an innovative solution to the constitutional prohibition against the foreign use of militia troops: the President was authorized to draft state Guard members into national service as federal reserve troops.[108] Furthermore, the National Defense Act of 1916, which acted as a condition precedent to the states' receipt of federal funds, forced the states to cede most of whatever control they retained over the militia, including the constitutional prerogative to appoint officers to command the militia.[109] As one commentator has noted, "A recurring fact (p.201)pattern emerges: the states, faced with ever more demanding standards but unable to pay for upgrading, are forced to accept both federal funding and the resulting loss of control that goes along with that funding."[110]

This pattern continued into the 1930s with the establishment of a "dual enlistment policy," whereby each member of a state National Guard unit simultaneously became a member of the United States National Guard.[111] Though militia members retained their status as members of the state National Guard, Congress could order them into actual service for the United States[112] whenever it declared a national emergency. During such service, members lost their status as members of the state National Guard.[113]

In 1952, Congress removed the national emergency requirement as a prerequisite for federal control of state militias and, instead, authorized federal control for "training" purposes regardless of the existence of national emergency.[114] This power was subject to gubernatorial approval, a requirement removed in the mid-1980s by a Congressional amendment precipitated by some governors' refusal to send forces to train in Central America.[115] Thus, in less than a century, state militia systems were dismantled piecemeal; what remains today is, at best, a "select militia" which, because it lacks universal membership, would be viewed by the Framers as little better than a standing army.[116] More ominously, the destruction of state militias removed an important civilian check upon federal military power:

By providing for a militia in the Constitution, the Framers sought to strengthen civilian control of the military. They postulated that a militia composed of citizen-soldiers would curb any unseemly ambitions of the small standing army. Today's National Guard is often perceived as the successor (p.202)to the militia, and observers still tout the Guard's role as the ultimate restraint on the professional military.

The reality, however, is much different. Today's National Guard is a very different force from the colonial-era militia. With 178,000 full-time federal employees and almost all of its budget drawn from the federal government, the National Guard is, for all practical purposes, a federal force.[117]

C. Mandatory Militias?

Despite some interest in militias in the early twentieth century[118] and more recently in a few communities around the country,[119] the federal government, and the populace in general, seems uninterested in reestablishing a universal militia.[120] Nevertheless, a Communitarian approach to the Second Amendment that focuses on the Constitution's militia clauses makes a case that Congress is obligated to provide the states with the ability to maintain a militia that the Framers would recognize, rather than merely providing for the operation of the National Guard.

If one accepts the Communitarian platform's community-oriented approach,[121] it can be argued plausibly that the Second Amendment actually requires the maintenance of a universal militia. After all, the opening clause of the Second Amendment begins, "A well regulated Militia, being necessary to the security of a free State ...."[122] Thus the Framers considered a well-regulated militia to be, well, necessary to the security of a free (p.203)state.[123] Add to this straightforward textual language what we know about the historical background, particularly the Framers' Whiggish hostility toward standing armies,[124] and the idea that the federal government, and perhaps the states as well, possess an absolute obligation to maintain a universal militia seems reasonably well-founded. This intent is evident in light of the 1792 Militia Act,[125] which is entirely consistent with this understanding.

Of course, such a duty could be meaningless in practice. Similar obligations of the federal government, after all, have largely been interpreted out of existence. The Guaranty Clause of Article IV, Section 4,[126] for example, was the subject of judicial near-abnegation,[127] with its goal being achieved, if at all, by such other provisions as the Due Process Clause and the Equal Protection Clause. In general, courts are far more willing to entertain claims based on individual rights than on government obligation.[128]

In this light, the Second Amendment could be understood as an example of very careful drafting indeed: a government obligation (to maintain a militia) coupled with an individual right (to keep and bear arms) that ensures that the key element of a universal militia (an armed citizenry) cannot be extinguished by government neglect.[129] At the very least, the clear constitutional statement regarding the necessity of a well-regulated (universal) militia for the security of a free state should give us pause. The logical consequence of this statement is that a state lacking such a militia is either insecure or unfree.[130] In light of what is known about the purposes of the (p.204)Second Amendment and the Framers' views regarding standing armies and armed citizens, an interpretation of the first clause of the Second Amendment as requiring universal militias seems well-founded. It is certainly better grounded in the Constitution's text, history, and purposes than many other constitutional arguments that have attained general acceptance.[131]

Nor is that the only consequence. Accepting, arguendo, that a court lacks the power to order the creation of a universal militia, the absence of such a militia could still have legal (and political) consequences. One can imagine the following exchange between a government representative and a member of one of today's neomilitias:

GOVERNMENT: You have no right to operate a private militia. The only militia recognized under the Second Amendment is a state-sponsored militia. Private groups have no standing.[132]

MILITIAMAN: A state-sponsored militia, eh? Which one is that?

GOVERNMENT: The National Guard, of course.[133]

MILITIAMAN: Don't be silly. The National Guard is not universal, and it isn't state-controlled. At best, it's a select militia of the sort that the Framers disliked.[134](p.205)

GOVERNMENT: Oh, all right. The truth is, we allowed the real militia to die. It wasn't good for much. We couldn't even use it to invade Mexico or Canada. Furthermore, the professional military didn't like it.[135]

MILITIAMAN: Fine. Because you admit you've defaulted on a constitutional obligation that is "necessary to the security of a free state," we've resorted to self-help. We'd rather see a universal militia of the sort the Framers envisioned, but only the government can create that. We've done the best we could in light of your default. And you should be estopped from complaining, until you have lived up to your constitutional obligation.[136]

GOVERNMENT: But private militias are dangerous. They don't necessarily represent the whole community; only portions of the community join such groups. They are prone to being infiltrated by malcontents, and they scare people.[137]

MILITIAMAN: All true. That's why we should have a universal militia. Too bad you guys have fallen down on the job.

Despite its half-whimsical treatment here, the argument is a serious one. (p.206)If a well-regulated militia of the sort the Framers envisioned is as important as a Communitarian interpretation of the Second Amendment suggests, then there is a constitutional argument for self-help in the event of a government default. Such an argument would likely fail in court, but that does not necessarily diminish its political, or even its constitutional, force. The easy solution is to take seriously the Second Amendment's first clause. Doing so, however, is likely to pose problems for the Communitarians' stated goal of domestic disarmament.
D. The Communitarian Militia

Critics will no doubt label militias as quaint anachronisms, unsuited for either modern military service[138] or local law enforcement,[139] activities viewed as best left to "professionals," though the recent record of some law enforcement professionals should give one pause.[140] Despite what critics say, states continue to take their militias semi-seriously: almost every state in the nation has a statute that designates the citizenry of a specified age as the "unorganized militia" of the state.[141] Many states even have updated their unorganized militia statutes in recent years to include women.[142] Although geopolitical realities probably preclude reliance on the militia as the keystone of our military strategy, this is not a flaw of militias; rather, it speaks to the role the United States has assumed in world affairs, a role the Framers had not likely intended. Using a militia to service the security needs of states and communities, on the other hand, makes good sense[143] (p.207)and can be done in a way that constitutes a perfect fit with Communitarian principles.

In the eighteenth century, universality was viewed as the great virtue of militias.[144] The militia was seen as incorruptible and thus incapable of tyranny because the diversity of membership was thought to be a powerful guard against any one element in a community gaining sway over the whole.[145] Militia service brought together community members from varied backgrounds.[146] (Communitarian reticence about acknowledging the virtues of militias is especially puzzling given the strong, community-centered and self-reliant elements in the Communitarian platform.[147] ) Further, if cultivated, the militia could reinforce the idea of duty to the polity in the deepest sense by obligating members to take up arms for the community's defense and by accepting responsibility for the safety of residents and visitors.[148] A (p.208)reconstituted militia serving individual communities under the aegis of the state also would accomplish the Communitarian goal of resolving problems by use of the smallest possible societal unit.[149]

More importantly, the existence of a citizen militia responsible in some way for the security of a given community also might reintroduce responsibility into the administration of law enforcement. Although law enforcement officials formerly were liable, for example, in trespass for improperly serving a search warrant or for breaking into the wrong house to make an arrest, legal fictions such as sovereign immunity and qualified immunity now present almost insuperable barriers for citizens wishing to hold law enforcement officers accountable for mistakes or abuses.[150] Further, the recent phenomenon of the "militarization" of law enforcement at all levels of government evokes sinister analogies to authoritarian regimes and the much feared "midnight knock at the door."[151] Professional law enforcement officers clad in Nomex coveralls and face shields, after all, hardly seem to represent the community even in their own minds, much less in the minds of many onlookers. Encouraging communities to take responsibility for their security might also have the effect of making those charged with law enforcement duties morally responsible to their friends and neighbors, and thus help them exercise greater care and restraint in carrying out their law enforcement duties. Though many might raise the specter of vigilantism and argue for respecting the domain of law enforcement professionals,[152] the recent behavior of some law enforcement agencies implies that a "professional" record is not always something to which communities should aspire.[153] Likewise, charging members of a community with its security will sensitize them to the link between rights and responsibilities. Moreover, requiring that community members police the "rights-responsibilities" boundary will highlight the social cost that accompanies the exercise of rights in a diverse and plural community.[154](p.209)

A universal militia also would take advantage of some important characteristics of human psychology.[155] At the risk of sounding too flip, if militias are outlawed, only outlaws will join militias. Conversely, the establishment of a government-sponsored universal militia would produce a very different dynamic. Rather than a way to rebel against the status quo, militia service would be a means of community service, similar to jury duty. As with jury duty, those lacking community spirit would probably devote their energies to finding ways of avoiding service. A universal militia of a very different character than the private groups extant today possess--a character far closer to what the Framers envisioned would result.

Similarly, mandatory training in the use of arms in connection with militia service similarly would further important Communitarian goals. It could teach forbearance, illustrating that the right to keep and bear arms does not give one the right to be a "gunslinger." At the same time, arms education also would address one of the "clear and present dangers" to the public health cited in the Communitarian platform: deaths caused by accidental gunshot wounds.[156] A return to the Framers' universal militia, then, would obviate the need for "domestic disarmament" by eliminating the platform's reason for it. In addition, it would provide a meaningful Communitarian interpretation of the Second Amendment, just as the Communitarian platform commands.[157]

One thing should be obvious from this discussion: in principle, it is possible to have "community militias" composed of all law-abiding citizens or to have domestic disarmament, but not both, as the Communitarian platform demands. If all law-abiding citizens belong to the universal militia, then they will be armed; that is what belonging to a militia means, as the Supreme Court made clear in United States v. Miller.[158] The platform does not address this contradiction, and the other Communitarian discussion of guns is so unrelentingly hostile to gun ownership by individuals that it is difficult to believe Communitarians take seriously their own beliefs in this context. As the following discussion demonstrates, that is unfortunate.

Why has this not been read in congress?

ConSig, do you know if Dr. Reveiras' Paper has been gotten to Ron Paul?

Does ANY one here KNOW that fine Legislator? He's about the ONLY legislator that has even an inkling of what's going on, & he's quite outspoken.

Also, what response is Dr. R recieving? Is there a "movement" developing? Are the various Leaders of the States Militias discussing & debating &, if so: where & how?

While I'm TREMENDOUSLY encouraged, & "SEE" what this material, (in the right hands, &. with the right sort of exposure), could, & SHOULD accomplish, and WILL accomplish I_F the full force needed is applied, I'm concerned that this is the only mention of this gentleman's material I've seen. My Q is: Is the necessary FORCE being planed, taken care of, intiated, etc.?

SITREP NEEDED! Thanks!

Ridgerunner...

The dumbasses in kongress are too stupid to comprehend it.

Zerodin...Yes, something is in the works...might be USMA related.

Thanks ConSig...I'd like to be kept up to date if & when possible...

If, perchance you are in contact with that fine Gentleman, please give him our regards & assure him that his efforts, while DEFINATELY swimming UP stream, are N_O_T unappreciated & A_R_E HIGHLY respected...

DON'T tell him this...SADLY, I fear his eloquence, knowlege, understanding, & wisdom may be a mite late...I P_R_A_Y NOT tho!

Man, this is something that should be taught in every high school.

Funny you should have Dr. Vieiras statement. I used his money argument in a court case in the 80's.
I realized back them this nation was dieing, when one of those black robe bastard would not allow the constitution to be allowed in his court.

DR. EDWIN VIEIRA Arcive:

http://www.newswithviews.com/Vieira/edwinA.htm

We archive all of Edwin's works here as well.

If one person was to pick this up and run with it, he would no doubt disappear!

Can you spell R _ _ P _ _ _? He hasn't been "desesperado" as yet....

Are you implying that this might happen to the individual who tries to implement this?