From: john litteken <[john litteken] at [SEMATECH.Org]>
Newsgroups: talk.politics.guns,talk.politics.misc,talk.politics.libertarian
Subject: Re: History of the US National Guard
Date: 15 Apr 1995 13:16:18 GMT
The Right to Keep and Bear Arms
The Legacy of Republicanism vs. Absolutism
Much of today's debate regarding the individual's right to
keep and bear arms, has been shrouded by misapplying various
interpretations of the militia clause of the second amendment to
the US Constitution. The second amendment states:
"A well-regulated militia, being necessary to the security
of a free State, the right of the people to keep and bear
Arms, shall not be infringed."
The proponents of gun control insist that the second
amendment only apply to an organized militia such as the National
Guard. However they overlook the fact the National Guard in times
of national crises, comes under direct control of the Federal
Government. The Guard works in concert with the regular Army in
carrying out the Federal military mission. This was finally put
to rest when in the 1980s, then Minnesota Governor Rudy Perpich
sued the Federal Government over control of the National Guard.
The State of Minnesota lost the case and the Federal Government
won.
The act of federalizing the National Guard is due to the law
passed by Congress on January 21, 1903. It provides that the "..
organized militia known as the National Guard of the state,
Territory or District of Columbia.. " is under the command of the
Nation's Chief Executive. Furthermore, all arms are controlled by
and owned by the Federal Government.
If indeed the National Guard can be placed under Federal
Control, then who is the unorganized militia? This question is
rooted in historical precedence with ample evidence provided by
the ancients, and contemporary thinkers that we are. That is to
say, all able-bodied men (and now women) between the ages of 17
and 45 who are capable of acting in defense of the country. This
definition also exits in the current United States Code [10
U.S.C. 311 (a)] which states:
The militia of the United States consists of all able-bodied
males at least 17 years of age, and, except as provided in
section 313 of title 32, under 45 years of age . . . "
The US Code further divides the militia into two classes:
The organized, and the unorganized militia. The organized militia
is viewed in the USC as the National Guard and Naval Militia, and
the unorganized militia that consists of ".. all members of the
militia who are not members of the National Guard or the Naval
Militia." [10 U.S.C. 311 (c)]
Advocates of gun control not only ignore the definition of
militia as that of the citizen soldier, they also ignore that the
final clause that uses the verbiage of the "..right of the people..",
is the same application of the "the people as used in the First,
Fourth, Ninth, and Tenth Amendments.
The application of the First Amendment applies to an
individual's right to free speech. The Fourth Amendment secures
the individual against unreasonable searches and seizures of
property by the government. If the Second Amendment were to be
construed as a collective right, then it logically follows that
only corporations or collective bodies (such as political
parties) would have a right to free speech, and would be free
from unreasonable search and seizures.
Yet these Amendments have been interpreted to be individual
rights due to the clause that refers to 'the people'. The people
refer to the individuals that make up the general populace.
It is precisely this definition that divides today's debate
on gun control. The idea of the citizen soldier is older than
ancient Rome. The unorganized militia provides for a citizen
soldier to be the guardian of liberty and freedom.
Where did this well established but often overlooked view of
the militia originate? As will be seen, its history can be found
in the most early discussions on politics: From Rome, to Greece,
to Virginia.
The most contemporary work on this subject, is That Every
Man Be Armed - The Evolution of a Constitutional Right, by
attorney Stephen P. Halbrook. Halbrook's work is the most
thorough and documented work on the Second Amendment this
century. This paper relies heavily upon the work of Mr. Halbrook,
and provides the necessary and proper credits in the
bibliography.
The Ancient Greeks and Romans
In Plato's Republic, Plato discusses how, through force, an
unjust state could win favor. Oligarchy forms of government occur
when privilege is fixed by statute. (Republic 139-140.)
Plato envisions a move to a democracy, but retains much of the
social inequality associated with absolutism. The need for a
strong leader is anticipated who would revert to absolute
authority and halt the march to democracy. Plato concludes:
"Then to be sure, the people will learn what sort of a
creature it has bred and nursed to greatness in its bosom,
until now the child is too strong for the parent to drive
out. Do you mean that the despot will dare to lay hands on
this father of his and beat him if he resists?
Yes, when once he has disarmed him." (Republic 295)
The idea of a philosopher king that Plato contemplates,
assumes the best in human nature and does not speculate on the
more contemporary historical fragility of such assumptions. Even
Catherine the Great of Russia, an enlightened despot, later
reversed herself from enlightenment to absolutism (The Western
Heritage, 653.) Whereas once a shrewd promoter of Voltaire and
others, Catherine later burned his books and banned them from
Russia. (The Western Heritage, 679.)
Aristotle argued that citizens must be protected from
tyranny, and that tyranny was achieved through the King's use of
a standing army. (Politics, 82) Both Plato and Aristotle spoke of
the King's use of the standing army to wage war, and to heavily
tax the populace. These efforts would preoccupy the general
populace to prevent an overthrow the oligarchy. (That Every Man
be Armed, 12)
Rome's Cicero also put forth the notion that an individual
also has the right to bear arms in self defense. When defending
Titus Annius Milo in 53 B.C. for the murder of Publius Claudius
Pulcher, he stated:
There are, many occasions on which homicide is justifiable.
In particular, when violence is needed to repel violence, such an
act is not merely justified but unavoidable" (Selected Political
Speeches, 78-81)
Here the natural law of self defense is eloquently stated by
Cicero. Cicero states ".. there exists a law, not written down
anywhere but inborn in our hearts; a law which comes to us not by
training or reading but by natural intuition." He further
discusses the moral righteousness of using ".. every method to
protect ourselves." Not only is Cicero speaking of the
individual's right to bear arms in self defense from another
individual, but also to defend one's person and property from
violence by the state.
Rome stood as a free republic until Gaius Marius abolished
the citizen soldier in 49 B.C. (That Every Man Be Armed, 18)
Caesar's reign marked the beginning of the Empire. Caesar was
ruthless in his conquests. He would not accept surrender from his
enemies until all the arms of the conquered town had been
collected. He would mutilate those who bore arms against him by
cutting off their hands. (That Every Man Be Armed, 18) Caesar
knew that an armed populace was more difficult to conquer.
Machiavelli
Machiavelli was also a believer in the citizen soldier or
citizen militia. In his work Discourses on the First Ten Books of
Titus Livy, he praises Rome before the reign of Caesar.
Machiavelli was also against large standing armies as shown in
the following passage.
"..in attacking a foreign country, [the Romans] never sent
out armies greater than fifty thousand men; but for home
defense against the Gauls after the first Punic war
eighteen hundred thousand....In conclusion, therefore, I
say again that a ruler who has his people well armed and
equipped for war, should always wait at home to wage war.."
(Discourses, 107)
Machiavelli also notes that "Rome remained free for four
hundred years and Sparta for eight hundred" with an armed
populace, while other countries who disarmed their citizens "lost
their liberties in less than forty years." (The Art of War, 18)
The comparison of Machiavelli's writing to similar wording found
in our Constitution proves to be surprisingly similar.
Machiavelli wrote that private citizens made up the "..regular
and well ordered militia.." (The Art of War, 39) and our
Constitution reads "A well regulated Militia being necessary to
the security of a free State.." To Machiavelli, well ordered, and
to our founding fathers well regulated, meant the same thing:
Citizens trained to arms.
Seventeenth Century Thought
In the 17th century, great thinkers attempted to justify the
existence of absolute rulers, while others such as Algernon
Sidney and John Locke argued for a democratic republic. In
arguing for a monarchy, Jean Bodin sees the deprivation of arms
essential to maintaining a ruler's authority. Bodin believed that
such ruler's were above the law.
Similar to today's argument's for gun control, Bodin saw
arms control as a means of people control, to control the masses
and prevent seditions. Similar to today, the arguments used in
achieving an unarmed populace were to prevent murders, and
seditions. Bodin states in his Six Bookes of A Commonweale
(1606),
"..the law may be good, just, and reasonable, and yet the
prince to be no way subject or bound thereto: as if he
should forbid all his subjects, except his guard and
garrison soldiers, upon pain of death to carry weapons, so
to take away the fears of murders and seditions; he in this
case ought not to be subject to his own law, but to the
contrary, to be well armed for the defense of the good, and
punishment of the evil." (Six Bookes on A Commonweale, 106)
To Bodin, the ruling monarchy was to be placed above the
laws that governed their subjects. Acts not unlike what Bodin
had envisioned, occur today where citizens are disarmed by law,
yet the privileged class is exempted.
John Locke was also an advocate of the citizen soldier.
Locke explained in great detail in his Two Treatises on Civil
Government (1689), that government of man must be based on mutual
consent, and that each individual remains free due to the natural
laws of nature. Because of this, each man has the right to
overthrow a despotic government. As each individual maintains
their natural rights, they also have the right to defend those
rights against any individual or group who threatens them. Locke
wrote: ".. it being reasonable and just I should have a right to
destroy that which threatens me with destruction." (Second
Treatise of Civil Government, 14)
Locke firmly believed that man had a moral right to use
force to overthrow an unjust government. That the right to resist
an unjust government with arms was little different than
protecting one's self from an individual's aggression.
Framer's Intent
Locke's influence on our founding fathers was profound. His
major contribution that all men retain their natural rights to
life, liberty, and property became a major influence on how our
Constitution was written. The Virginia Declaration of Rights,
(which was largely written by George Mason on June 12, 1776),
nearly echoed verbatim Locke's views on natural rights. Article
One states:
"That all men are by nature equally free and independent,
and have certain inherent rights, of which, when they enter into
a state of society, they cannot, by any compact, deprive or
divest their posterity; namely, the enjoyment of life, liberty,
with the means of acquiring and possessing property, and pursuing
and obtaining happiness and safety."
"That a well regulated militia, composed of the body of the
people, trained to arms, is the proper, natural, and safe defense
of a free state; that standing armies, in time of peace, should
be avoided as dangerous to liberty; and that, in all cases, the
military should be under strict subordination to, and governed
by, the civil power."
Here again we plainly see that the early framers of the
Declaration of Rights believed that the new nation's security
rested upon a citizen militia. The idea presupposes a natural
right for the citizens to keep and bear arms. Virginia's
Declaration of Rights would later serve as the model for our own
Constitution.
During the Philadelphia Convention of 1788, Patrick Henry
argued passionately for the individual's rights against the
Federalists James Madison and Edmund Randolf. Henry was insistent
that the new Constitution of the United States contain a Bill of
Rights similar to Virginia's. Madison did not believe one was
necessary as the people retained the right to overthrow an unjust
government. He also believed that all rights not given up to the
new government were retained by the people.
Henry and Mason both argued against ratifying the new
Constitution unless specific right's were enumerated as had been
done with their own State Constitution. Randolf, himself an ally
of Madison's, refused to sign the new Constitution unless a Bill
of Rights were present. (Madison and The Bill of Rights, 4)
The original language of the Second Amendment as proposed by
Madison, read:
"The right of the people to keep and bear arms shall not be
infringed; a well armed, and well-regulated militia being the
best security to a free country: but no person religiously
scrupulous of bearing arms, shall be compelled to render military
service in person." (Madison and the Bill of Rights, 5)
Madison added the language of the right to keep and bear
arms in first draft. A right of the people. The wording the
house committee chose read:
"A well regulated militia, composed of the body of the
people, being the best security of a free state, the right of the
people to keep and bear arms shall not be infringed, but no
person religiously scrupulous shall be compelled to bear arms."
This draft, reversed the people and militia clauses but
retained Madison's conscientious objector clause. Additionally
author Halbrook points out that it is clearly shown from
Madison's notes that he would use to propose the Amendment:
"They [the proposed amendments] relate first to private
rights .." (That Every Man be Armed, 76)
The Senate version dropped the conscientious objector clause
all together, and what was to become our nation's second
amendment was finally adopted by the states:
"A well regulated militia being necessary to the security of
a free state, the right of the people to keep and bear arms,
shall not be infringed."
During the House debates, of our Second Amendment,
Representative Elbridge Gerry begged the question: "What, Sir is
the use of a militia? It is to prevent the establishment of a
standing army, the bane of liberty." The well-regulated clause of
the second amendment suggests that the citizen soldier must
retain not only the right to keep and bear arms, but must be
proficient in their use. (That Every Man Be Armed, 78)
The argument that the "well-regulated militia" clause
implies a collective rather than an individual right can be
rebuked with the Federalist Papers number 29, where Alexander
Hamilton wrote:
"..the great body of yeomanry and of the other classes of
citizens to be under arms for the purpose of going through
military exercises and evolutions, as often as might be necessary
to acquire the degree of perfection which would entitle them to
the character of a well-regulated militia." (Federalists #29,
184-185)
Here, as can be clearly seen, a well-regulated militia is
composed of ordinary citizens who are trained to arms. The
contemporary argument used by gun control advocates that the
militia clause means only police or the government should be
allowed to have arms, has no historical, or factual precedence
what so ever.
Conclusion
The militia is quite simply you and me. It is our moral duty
to be proficient in the use of arms for our own self preservation
and that of our country. Standing armies have been viewed as the
bane of liberty, and not the protectors of it. Freemen have a
right and moral duty to oppose the unlawful taking of our natural
rights by any means available to us. As radical and revolutionary
as this may sound today, it has been said many times before. It
is as true today as it was in Ancient Rome, Sparta, or in
Eighteenth Century Virginia.
Works Cited
Plato, Republic 139-140 (E. Vornford translation. 1945), as cited
by Halbrook, Stephen P., That Every Man Be Armed, p. 9. The
LibertyTree Press, San Francisco CA. 1984.
Plato, Republic, p. 295 (E. Vornford translation. 1945), as cited
by Halbrook, Stephen P., That Every Man Be Armed, p. 10. The
LibertyTree Press, San Francisco CA.
Kagan D., and Ozment S., and Turner F., The Western Heritage
(Fourth Edition, Volume II), p. 653. Macmillan Publishing
Company, NY, 1987.
Id. at 679.
Aristotle, Politics, p. 82, as cited by Halbrook, Stephen P.,
That Every Man Be Armed, p. 9. The LibertyTree Press,
San Francisco CA. 1984.
Halbrook, Stephen P., That Every Man Be Armed, p. 12. The
LibertyTree Press, San Francisco CA. 1984.
Cicero, Selected Political Speeches, pp. 79-81 (M. Grant transl.
1969), as cited by Halbrook, Stephen P., That Every Man Be
Armed, p. 16. The LibertyTree Press, San Francisco CA.
Halbrook, Stephen P., That Every Man Be Armed, p. 18. The
LibertyTree Press, San Francisco CA. 1984.
Machiavelli, Discourses, p. 107, as cited by Halbrook,
Stephen P., That Every Man Be Armed, p. 21. The LibertyTree
Press, San Francisco CA. 1984.
Machiavelli, The Art of War, p. 18, as cited by Halbrook,
Stephen P., That Every Man Be Armed, p. 22. The LibertyTree
Press, San Francisco CA. 1984.
Machiavelli, The Art of War, p.39, as cited by Halbrook,
Stephen P., That Every Man Be Armed, p. 22. The LibertyTree
Press, San Francisco CA. 1984.
Bodin, Jean, Six Books on A Commonweale, p. 106, as cited by
Halbrook, Stephen P., That Every Man Be Armed, p. 25.
The LibertyTree Press, San Francisco CA. 1984.
Locke, John, Second Treatise of Civil Government, p.14,
(Chicago 1955), as cited by Halbrook, Stephen P.,
That Every Man Be Armed, p. 22. The LibertyTree Press, San
Francisco CA. 1984.
McCabe, Michael K., Madison & The Bill Of Rights, p. 4, American
Rifleman, Feb., Mar., Apr., 1991. National Rifle
Association, Washington DC.
Id. at 5.
Halbrook, Stephen P., That Every Man Be Armed, p. 76. The
LibertyTree Press, San Francisco CA. 1984.
Id. at 78.
Not stated in the article is that the National Guard was federalized
in 1903.
John