On the Militia, and Tyranny

In previous posts, I’ve attempted to shed light on what the Founders intended when they ratified the 2^nd Amendment. Some people believe that the 2^nd Amendment applies only to “organized militias”; other people believe that the 2^nd Amendment guarantees that every American has the right to own a gun. I will admit to a bias in favor of the former interpretation, but further investigation – as well as insightful comments from readers of the New Independent Whig – has inspired me to adopt a more circumspect position.

In the wake of the unspeakable tragedy in Newtown, Connecticut, many Americans have become more fervent in their desire to place some sort of restriction on gun ownership. Other Americans have noted this movement and have become more fervent in their desire to defend their right to bear arms.

The result has been yet another repetition of the poisonous, partisan spirit of our times. Advocates of gun control mock and belittle the views of gun rights advocates, and gun rights advocates have churlishly thumbed their nose at their opposition by parading about town wearing assault rifles.

In truth, gun rights advocates deserve recognition. Unlike the stupefied masses, they understand that we are no longer living in the Republican society that the Founders envisioned. Instead, we are living in what the Founders would consider a tyranny. 

Proposition: The United States is a Tyranny 

Richard Price drew a contrast between good government and tyrannical government in these terms: "Legitimate government ... as opposed to oppression and tyranny, consists ‘only in the dominion of equal laws made with common consent, or of men over themselves; and not in the dominion of communities over communities, or of any men over other men.’” In more contemporary language, tyranny may be viewed as domination: that is, “the ability to arbitrarily interfere in the affairs of others without being constrained by their interests or stated preferences (source).” And a good society is that in which non-domination prevails. 

If you believe any one of the following statements to be true, then you also believe that the United States is a tyranny by the standards of Classical Republicanism:

(1)    Wall Street financiers and CEOs have a greater influence over government policy than ordinary working Americans,

(2)    Government agents, by spying on law-abiding Americans, will eventually create an environment in which Americans can no longer and should no longer feel at ease when exercising their freedom of speech whether they are lawfully protesting or communicating by phone or by Internet, 

(3)    Political leaders break their campaign promises with impunity, with no explanation, and no shame,

(4)    The American people are compelled to pay taxes but have little say over how the money is spent,

(5)    Leaders in Washington prosecute rash, expensive, and unproductive wars in foreign lands and do so without the consent of the people. 

Tyranny does not refer solely to the actions of government. If, in a society, some are armed and others are not, the armed members of society can tyrannize the unarmed members of society. Granted, all Americans could arm themselves, but if this were to happen, the more skilled marksmen would prevail over the less skilled; the more callous would prevail over those who hesitate before firing; those who band together in mobs would prevail over those who prefer a solitary life. 

Vigilantism

The shooting death of Trayvon Martin at the hands of George Zimmerman is an example of tyranny of a man over another man. The reader may have heard only partial accounts of this case. On Fox News, the only portion of Zimmerman’s account starts when he is allegedly punched by Martin, but the incident began several minutes earlier. As Martin walked home along a street, Zimmerman followed the boy in his car, by his own account keeping the boy under continuing surveillance, until the point came where Martin was acutely conscious of the fact that he was being followed and began staring back at Zimmerman. This, by Zimmerman’s account, eventually led to a confrontation. Zimmerman approached the boy and evidently accused the boy of criminal intentions (although Zimmerman saw nothing in the boy’s behavior to suggest that a crime was in the offing).  

By attending to Zimmerman’s own words, we can safely conclude that he had alternatives -- other than the use of lethal force – that would have ensured his own safety. If he had simply notified the police of a suspicious person and left it to them (and he did call the police and the police did say to leave the matter to them), the outcome would have been very different.

                                     Zimmerman's Account

Some have speculated that race may have been a factor. Had Martin been white instead of black, walking along a street in this gated Florida community, he might not have aroused Zimmerman’s suspicions and, even if he had, Zimmerman might have been less frightened and less likely to pull a gun. Again, these are matters of speculation. It is very likely, though, that Zimmerman would have been less aggressive in his surveillance activities or in his verbal confrontation with Martin if he did not have a gun in his possession, and it is certainly the case that Martin would be alive today.  

The death of Martin is assuredly an instance of vigilantism. Zimmerman acted as judge, jury, and executioner and denied Martin’s right to the due process of the law. Vigilantism is the tyranny of one man over another. Lest we forget our history, there was a time when southern lynch mobs executed people found guilty of belonging to an abolitionist movement. Vigilantism is as dangerous to the welfare of the American people as a tyrannical government. 

The Founders’ Idea of a Militia

The Founders did not advocate a form of government that would encourage vigilantism. Instead, they ratified a Constitution that prescribes the due process of law and the right to a jury of one’s peers.  They envisioned a society in which the rights of life, liberty and property were ensured. This is not the same as a society in which these rights are tenuous and are only sustained for as long as citizens can keep up an armed defense against those who would seek to take their lives, liberties, or property.

The meaning of “well-regulated militia” is not well defined in the Constitution. However, a case may be made that there was a common understanding among 18^th century Englishmen of what the term meant. According to one historian, 

A militia which derived from the Latin miles and the old English and French milice indicated ‘the obligation of every able bodied Englishman to defend his country.’ It implies the obligation that all citizens … have to serve in the armed forces of their nation. In the American colonies the transition was made from English common law to the law of the colonies.  The federal Constitution made certain that any national obligation did not preclude service to the state which was primary and original. Initially the enrolled militia (or organized militia) included those select or specially trained militia enlisted by the colonies or states. Early select and enrolled militia were occasionally called Trained Bands.  The minutemen of New England were select or enrolled militia (source).

Cesare Beccaria was among the authorities esteemed by the Founders. He believed, “A government of citizens, where the commonwealth is equal, is hardest to be conquered [because] ... such citizens, being all soldiers, or trained up to their arms, which they use not for the defence of slavery, but of liberty, [are] ... the vastest body of a well-disciplined militia, that is possible in nature.” This implies that members of a militia have some form of military training and discipline. James Madison described militia members as being “trained to arms.” 

In the various state constitutions there are also references to military knowledge and military discipline. In Virginia’s Bill of Rights, a well-regulated militia is said to be “composed of the body of the people, trained to arms (source).” In Benjamin Franklin’s revisions to the Pennsylvania Declaration of Rights (1776), he wrote that “the People have a Right to bear Arms for the Defence of themselves and the State, and as standing Armies in the Time of Peace are dangerous to Liberty, they ought not to be kept up: And that the Military [i.e., militia] should be kept under strict Subordination to, and governed by, the Civil Power.” 

Simeon Howard, writing in Boston in 1773, said that a militia was, “the power of defense in the body of the people . . . [that is], a well-regulated and well-disciplined militia. This is placing the sword in hands that will not be likely to betray their trust, and who will have the strongest motives to act their part well, in defence of their country.” This implies that there is some means by which local authorities can decide which citizens can be entrusted with the responsibility of bearing arms.

In the U.S. Constitution itself, the term "militia" is defined: “The Congress shall have Power . . . To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” [Article 1, § 8.]

It is clear, then, that militia members were expected to be well disciplined, trusted, and of sound judgment. By discipline, what is meant is the kind of training that enables a person to remain in control over his or her emotions during threatening situations, and not shoot in a moment of panic or doubt. This training would instruct the militia member on the evils of vigilantism and the virtues of a society that is ruled by laws enacted by the American people.  These are appropriate qualifications for anyone who is to be entrusted with lethal weapons and – by implication – the responsibility for deciding when it is appropriate to use lethal force. (The interested reader may wish to read of a historical incident in which the militia were dispatched against vigilantes here).

The Supreme Court

The St. Valentine’s Day Massacre of 1929 refers to the gang-related deaths of 7 men. Submachine guns were used to commit this crime, and public outrage led to the enactment of the National Firearms Act, which required that automatic weapons, sawed-off shotguns, and other potent weapons be registered at a federal agency. The law was protested and the case eventually made it to the Supreme Court.

In the Miller vs. United States decision of 1939, the court decided to uphold the National Firearms Act, and explained the intent of the 2^nd Amendment as follows: 

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress (source).

The Miller decision pointed to several legal cases from the 1780s in which the nature of a militia was discussed. The Virginia General Assembly required that, in a militia, “Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o'clock in the forenoon, armed, equipped, and accoutered.” This indicates that the militia is an organized body of men. A subsequent decision, Lewis vs. United States, upheld the Miller decision: “the Second Amendment guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well regulated militia (source).” 

The District of Columbia vs. Heller decision of 2008 dismissed the Miller decision on the basis that it did not provide an explication of the 2^nd Amendment. As noted in a previous post, the Heller decision is tainted by the fact that gun industry interests influenced the outcome. It certainly violates the principle of stare decisis. Violators of this principle are sometimes accused of “legislating from the bench.”   

Tyranny: A Reprise

There is a strong case to be made that the 2^nd Amendment’s “well-regulated militia” referred to an organized body of men, under military discipline, and answerable to the state. The National Guard is a modern-day equivalent of a militia, and it is safe to conclude that the 2^nd Amendment guarantees National Guard members the right to bear arms. I remain, however, skeptical of the idea that the 2^nd Amendment provides an unconditional individual right to gun ownership.  

The U.S. Constitution, as originally written, denied the federal government the power to maintain a standing army, and if our goal is to recall the wisdom of the Founders, the advisability of allowing the federal government to keep a standing army is worthy of fresh consideration. This is particularly true in light of the misuse of the standing army by recent administrations. I support the Whiggish principle that the National Guard should be answerable only to state government, and be protected against federal abuses of power.

Concerning the question of what Americans ought to do in response to the tyranny that our government has become, the Founders provide an example to follow. The Founders did not entertain the idea of armed revolution until every effort had been made to persuade the Crown to recognize the rights of colonists as British subjects. Community leaders assembled to deliberate on the issue of British abuses of colonists’ rights, consulted the law, and eventually arrived at a carefully-reasoned, detailed list of complaints. They printed educational pamphlets. They petitioned the Crown. They organized boycotts. They created a democratic process of electing leaders to represent their cause. This work required patience and a commitment of time, money, and effort. It required leadership. The Founders are worthy of our veneration because they behaved in a conscientious manner: they did not ignore the reality of tyranny, nor did they resort to mob tactics, nor did they content themselves with Jeremiads.

The modern, NRA-inspired reading of the 2^nd Amendment is at odds with the example set by the Founders. Instead, this modern reading, “... takes social disunity as a given. It empowers people to respond to that disunity not by building new consensus, but by shooting those who would threaten them. In other words, the new mythic landscape [i.e., how the 2nd Amendment is now perceived] fundamentally assumes that a world of violence and fragmentation is inevitable (source).”