HoltesThoughts: What Founders meant by Militia

What the Founders meant by Militia

note: This segues off of my post "why DC Versus Heller was badly decided" and a series of other posts written before and after this one, which are listed at the end of this post. It directly follows up on Thoughts on Defending Democracy which talks about the Swiss Militia and the even earlier post Militia Second-amendment and Democracy post where I talked of the second amendment referring to the Federalist Papers.

Definition of Militia

The militia meaning, According to the US Code:

https://www.law.cornell.edu/uscode/text/10/246
Simplified:: “the whole body of able-bodied male citizens declared by law as being subject to call to military service”

The referenced Militia were the body of able bodied (originally men), not serving in a standing army, who could be mustered for service as needed. For a militia to be an alternative to a standing army, they needed to be armed and regulated by the States, not the Federal Government. The Second Amendment was a limit on the Federal Government barring it from disarming the militia. The militia were seen as an institution for the preservation of republican forms.

Militia is a Positive Right (Requirement/Duty)

Right wing folks, in their fear of their own shadows - and what is under their bed - half understand that the need for a well regulated militia is directly tied to the right to bear arms. In that half understanding they do more harm than good. Ignore the constitution and subvert what the founders meant by militia.

Militia is a collective right of the "able bodied" citizenry of the country, which is tied to a duty of citizens to assist in defending their country, which starts with a requirement (duty) to participate in the defence, policing and ordering their own homes and neighborhoods. As such it is well defined in the Constitution. And not only in the Second amendment, which says:

“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.”[COTUS]

The right to bear arms was envisioned neither as a purely incidental right to defend the family, nor as a right that can be prohibited unless one is a member of the militia. But as a right that has to be well regulated but belongs to the "able bodied" citizenry as a whole. It is a collective right of the people, just as democracy is more a duty of the citizenry to participate in government than simply the specific forms that we associate with the subject. Congress has the power to regulate the militia and the duty to organize, arm, discipline and provide for the militia. It only has the right to govern "such part of them as may be employed in the Service of the United States" because they also serve the States and the people of the locations where they are drawn from. And these people wanted the second Amendment because that service to local government was so important that they wanted the right to bear arms in reference to it. Hence the second amendment was added to ensure this.

Without the ability of the whole citizenry to bear arms, the militia cannot form a check on either State Standing armies or Federal Ones. Hamilton never objects to the Second Amendment. Neither does Madison or the Anti-Federalists. All of them saw the value of militia, especially Hamilton who also saw it's weaknesses. But what did he mean?

But the Second amendment text is not the only guide for determining what the text means. Both the rest of the Constitutional Document as well as the Second Amendment have a bearing on the subject. And the question of "what is meant by militia" is important too. Scalia and company skip over this question in their exegesis on the Second Amendment. But it is important. Hamilton explains that the militia are vitally important in the framework of our Union. Not just as an "auxiliary" to Federal Forces but as an organizing principle for self defense and a potential bulkhead against the effects of a Standing Army. In fact he talks extensively about the dangers of a standing Army, not just standing armies for the Federal Government but for the States. In Federalist 25 Hamilton notes:

“"The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions." [Federalist 25]”

So the provisions regarding the militia in the Constitution, including The Second Amendment are vital provisions and not separate provisions at all. Hamilton clearly saw and feared the causes and dangers of excessive militarism both to the health and liberties of the country and to it's ultimate survival. So much so that the constitution gives Congress:

“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;”[Constitution of the United States (COTUS)]

Misinterpreting Bear Arms

Definition of Bear Arms:

“Selective quotations can prove anything, if you have clever researchers looking for them. But there is a far more robust way to find out what people meant by this or that word in the 18th century. That is to gather a large number of texts into a “corpus”, a searchable body of material, and then look for patterns in thousands of uses of a word or phrase. A corpus can be general, like Google Books, which has around 500bn words of English text. But it can also be specialised. Two newcomers are the Corpus of Founding Era American English, with 139m words across 95,000 documents from 1760 to 1799, and the Corpus of Early Modern English, with 1.3bn words from 1475 to 1800.” [Economist]

Meaning in Context:

“Dennis Baron, a linguist at the University of Illinois Urbana-Champaign, searched for “bear arms” in these databases, and found about 1,500 instances. Of these, he says, only a handful did not refer to organised armed action. It is true that several state constitutions guaranteed the right to “bear arms” and explicitly mentioned self-defence. So Mr Baron’s digging does not completely close the case. But it has shown that the default meaning of “bear arms” in the founding era was, indeed, military.” [Economist]

https://www.economist.com/books-and-arts/2018/06/07/what-does-it-mean-to-bear-arms

https://www.theatlantic.com/magazine/archive/2018/10/losing-the-democratic-habit/568336/

The Militia of the Whole is the Body of Able Bodied Persons

Hamilton writes in Federalist 29:

“The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the 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, would be a real grievance to the people, and a serious public inconvenience and loss.” [Federalist 29]

However, in our day it's possible to use militia principles to solve a raft of issues that are national across the country. We now have internet and communications capabilities that Hamilton could only dream of.

The Militia as a Check on the Security State

It is clear here that Hamilton is referring to what is known as the "militia of the whole" or the "great body of the yeomanry, and of the other classes of citizens" under arms when he refers to the power and discipline of the militia. He's not referring to an individual right to bear arms but a collective right for individuals to bear arms so they can defend themselves, their country, their states and their neighborhoods. A collective right of the "great body of the people" to serve as a check on the dangers of corrupt officers, traitorous politicians or standing armies. Jefferson said about the militia the following:

"I am for relying, for internal defence, on our militia solely, till actual invasion, and for such a naval force only as may protect our coasts and harbors from such depredations as we have experienced; and not for a standing army in time of peace, which may overawe the public sentiment; nor for a navy, which, by it’s own expenses and the eternal wars in which it will implicate us, grind us with public burthens, & sink us under them." [Jefferson Works Vol 9]

Militia are an Expression of Self Government!

This is something the Far Right perceives but generally narrows in their narrow minds to a right only enjoyed by the "right people" by which they exclude African Americans, immigrants, Hispanics or whoever the target of the moment is. The individual right to bear arms is contingent on this great collective right and duty. which paradoxically is to be regulated by the Federal Government, which has the duty to "organize", "arm", and "discipline" the militia and only has the right to "command" "such part as is in National Service." I discuss this more thoroughly in my blog entry "Militia Second Amendment and Democracy" but essentially the militia is the expression of the citizenry in their own self defense and self government. That is why the founders both feared it and extolled it. The right to bear arms is tied to the duty of self defense, self government. And should be organized and disciplined by the Federal Government with the exception that those citizens should have the right to bear arms, not a mere privilege. And since it is "ruinous" for the government to arm, train and discipline all of US, all the time. There is a need for a plan:

“yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need.” [Fed 29]

In short the militia should be organized on reserve principles, with many more trained than are needed, and people trained for exigencies that would only occur in emergencies, but used as needed during peace time. Hamilton was envisioning what we now call the reserves and National Guard. But this is also why Scalia and the Gang of 5 missed the boat on the Heller decision.

Police, Emergency Response and Democracy emerge from Militia

The police emerge from forces originally that emerged from militia functions. So do Emergency Medical and other emergency response functions. Prohibiting citizens from defending their neighborhoods and putting the defense of towns and villages in the hands of professional police only makes sense if those police are an extension of the neighborhood. If they are properly disciplined, trained and provisioned. But for States to treat the police as standing armies violates the letter of the Constitution that no State shall keep troops in peacetime. If they redefine police as "not troops" but train them and use them as troops then they are violating both letter and spirit of the provision. The only way they can have troops available to them is if the Federal Government directs them that way. It's kind of an amazing consideration but they are supposed to be under the direction of Congress and currently most police forces are barely under the control of their nominal executives such as mayors and Governors.

This subject was of such importance that the founders called the Militia and Second Amendment <"The Palladium of Liberty."

“The Palladium of Liberty” for more on that read:

https://holtesthoughts.blogspot.com/2018/07/the-palladium-of-liberty.html

SCOTUS Erred in divorcing the parts of 2A

Scalia and company erre in Heller, not in the final decision but it's elements. Essentially they got their rights and duties backwards. It is not only appropriate for the City to require Trigger locks on pistols as a matter of safety, but it is even more important for the Federal Government to make sure that folks like Heller are trained properly and any weapons properly handled and secured. In fact it is remiss on the Federal Government not to organize, arm and discipline citizens in their use of fire-arms. And part of that discipline is determining when, where, how and under what circumstances arms are to be deployed and ensuring that States train to that discipline. It was wrong for the city to put unreasonable burdens on Heller getting his fire arms, because it is a Federal Duty that folks like Heller be trained and ready to perform their duty.

States have a right to regulate fire-arms and determine where and how they are used, but in the context of the "discipline" prescribed by the Congress. So while it is right that they should prohibit firearms from individuals under certain circumstances -- but even when they do the people should have the right to have armories where they can deposit them, and places where they can train and be prepared under Federal Direction. If the militia want rocket launchers they should have the right to them. If individuals want fire arms there should be classes of fire-arms available to them. Because the Federal Government is constrained from taking away that right. Maybe if they really want a Rocket Launcher they should be required to keep it under the direction of a Sergeant at Arms at the local Armory. That is discipline. Trigger locks are discipline. No Uzzies on the streets is discipline.

A militia is composed of those citizens who are under the discipline of the militia. And the States have the power to select officers and train them. I suppose that is why police are all technically officers. But the militia is the body of the citizenry and and neither States nor Federal Government should be interfering with this right. On the contrary the Federal Government has the duty to provide for their arming and discipline. That this requirement is being neglected is no excuse.

The Federal Government has a duty to regulate but not prohibit fire arms and to ensure that they are only available for the purposes they were intended for; to defend the home, to order the streets, to defend the country, and yes to hunt or target practice. All that is in the cause and mission of defending the country and in removing the necessity for standing armies. Policing neighborhoods should be a function of citizens trained under federal discipline and then employed by their home towns. Technically a strict reading of the Constitution would suggest that the Federal Government should organize, arm and discipline the police. But it's really the Federal Government as a trustee for the People who have that role. Because the militia are supposed to be a check not only on Federal Power to create Standing Armies but state standing armies. We are supposed to have collaborative policing services, collaborative health services and collaborative security. And those who are the officers of those services should be serving us and preferably return like "Cincinattus" to the plow when their term of service is up.

The Supreme Court Erred. Our current vast armaments and standing armies are the constitutional error, not regulations trying to limit untrained undisciplined people from hurting others instead of defending themselves.

But more importantly, "militia" is defined in the constitution, and points the way to organize and rationalizing a truly national, networked and functional set of organizations for defending our security.

HoltesThoughts

Sunday, May 3, 2015

What Founders meant by Militia

Definition of Militia

Militia is a Positive Right (Requirement/Duty)

Misinterpreting Bear Arms

The Militia of the Whole is the Body of Able Bodied Persons

The Militia as a Check on the Security State

Militia are an Expression of Self Government!

Police, Emergency Response and Democracy emerge from Militia

SCOTUS Erred in divorcing the parts of 2A

Further Reading

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