Wednesday, February 28, 2018

A gift for the Students of Marjory Stoneman Douglas High School and Diane Wolk-Rogers

Diane Wolk-Rogers was the Marjory Stoneman Douglas High School history teacher who questioned Dana Loesch at the CNN town meeting. Here is my response to Ms. Wolk-Rogers' question:

The constitution was written partially as a reaction to Shays' Rebellion in Massachusetts, which was a revolt by former members of the continental army who had served in the War for American Independence. Someone  like Ms. Loesch would like us to believe that these people would have fallen into the category of a well-regulated militia since they were well-trained having served in the Continental forces. However, the reaction to this rebellion was far from one of approbation, but was one of shock (see

The words "to ensure domestic tranquility" were placed in the preamble of the US Constitution in regard to Shays' Rebellion.  Additionally, the preamble mentions the common defence as one of the reasons for adopting the constitution. I should add that the text of the US Constitution can be scrutinised and no mention will be found for the concept of self-defence [1]. Two articles address the militia in the US Constitution, Articles I, Section 8, Clauses 15 & 16, which are called the militia clauses in Constitutional law. Clause 16 is the most important for this discussion as it gives Congress the 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;
The fact that only congress has the power to arm the militia was what concerned the founders, not private guns. A search of the primary sources will show that the "pro-gun" side has a nasty habit of misquoting and taking the debate out of context. As one scholar said "wielding the scholar’s power of the ellipse several partisans of gun ownership have edited Henry’s remarks about how best to regulate the militia into an inflammatory half-truth “The great object is that every man be armed….Every one who is able may have a gun.” The NRA has blown this up into a poster-sized blurb embossed with Patrick Henry’s image." (Henry Meyer,  A PATRICK HENRY ESSAY (No. 5-98) THE POLITICAL LEGACY OF PATRICK HENRY).

Ms. Loesch misquoted George Mason. The entire quote concerns itself with the nature of the militia in the future when read in context (see this post for a discussion of this topic)  That is a highly important point since the concept of a universal militia died a quick death, if it ever really existed. This takes us to an important point, the founders envisioned a system similar to that of Switzerland where the bulk of the military is not professional, but part time. The only "professional" military in this system would be those in positions of administration and training. This comes from a long tradition of distrust of standing armies and professional militaries, which is something else that shows up when one reads the primary source material.(see also Schwoerer, Lois G. “No Standing Armies!” The Antiarmy Ideology in Seventeenth-Century England).

The bottom line and short form of this  is that a well-regulated militia is the one created in accordance with Articles I, Section 8, Clauses 16 of the US Constitution, not a private army [2]. Likewise, the US Constitution makes it clear that waging war against the US is treason (Article III, Section iii).

As for the current trend in ignoring the first clause in the Second Amendment, U.S. v. Miller, 307 U.S. 174 (1939), stated that:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
Such forces being those created under the militia clauses. The Case of Marbury v Madison 5 U.S. 137 (1803), makes it clear that "It cannot be presumed that any clause in the constitution is intended to be without effect", which runs contrary to the current Jusrisprudence of DC v Heller and McDonald v Chicago. I suggest that your students read Justice William O Douglas, dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972).  Justice Douglas was on the court when Miller was decided and gives a gloss of that case.

In addition, Miller mentions Aymette v. State, 2 Humphreys (Tenn.) 154, 158. Aymette says the following:

To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.
While there is quite a bit of pseudohistory and poor law clogging up the atmosphere  which has prevented enacting sensible gun legislation, but I have much hope for your students working to change that.

[1] There is a rule of interpretation in law that if a statute is silent on a subject, one cannot assume that subject is addressed. So, a failure to specifically mention self-defence in the US Constitution leads to the presumption that the Second Amendment does not apply to that. I would also add that the doctrine of self-defence in common law is not a complete defence, but is a mitigation to the offence. Common law does not see deadly force as being a first option. See Richard Maxwell Brown's No Duty to Retreat: Violence and Values in American History and Society for a history of deadly force in US jurisprudence.

[2] Basic info on unorganised militia being:
The Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia, has always been unorganized and untrained
Active Militias, that is THE organised, enrolled, embodied, active (or other term signifying active) Militia, can be supplemented if necessary by the ballot (selection by lot)–in other words drafted from the Unorganised militia draft pool.
The term “unorganized” did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.
Militia service was so unpopular that Delaware abolished its militia system altogether in 1831. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856.” – Mahon, John K, The History of the Militia and the National Guard, p. 83
The term “unorganized militia” was kept in use in subsequent decades as a statutory “reminder” that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the “unorganized militia,” the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise.
The unorganised militia is addressed in the State Call up provisions for the militia (current national guard), not 10 USC 311.

BTW, look up the case of  Presser v. Illinois, 116 U.S. 252 (1886). US v Miller was not the first Second Amendment case heard by the US Supreme Court, although Heller and McDonald would have liked that to have been the case. Presser addresses the reserve militia in relationship to the Second Amendment.

There is also United States v. Cruikshank, 92 U. S. 542, 92 U. S. 553, which is another relevant case that demonstrated that the Heller and McDonald decisions were ultra vires in that they amended the Constitution and disregarded precedent.

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