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Friday, December 26, 2014

Militia Second Amendment and Democracy

In an earlier post I argued:

"In Switzerland, the purpose of the second amendment is on display. It's cantons are each prepared against invasions that nobody in Switzerland ever expects to happens, but they are prepared to keep their neighbors neighborly. The concept behind the second amendment was invented in places like Switzerland. The purpose of the second amendment was to avoid a standing army by having a strong militia. (http://www.snopes.com/politics/guns/switzerland.asp).

In Switzerland all the males are drafted. In the USA we have the National Guard, and then we have militia which often are no better than USA Nazi or fascist Brownshirts. I believe we need to bring back a nationally organized militia to avoid the brownshirts and to strengthen democracy. If we want that, maybe we need to imitate the Swiss."[Thoughts on Defending Democracy]

Since writing that article I started re-reading the Federalist Papers, especially enjoying the writings of Alexander Hamilton and I started understanding what he was really driving at. I've criticized him in the past but now I'm starting to appreciate him and wish he hadn't been murdered in 1804 by Aaron Burr. The man was brilliant, and he's been blamed for things that he tried to forestall. One of those things is the twin risks of a standing army and no standing army (chaos). He sought to create a collaborative government that would enlist existing States and local government in making a Federal Government that could keep the peace, improve and defend the country. His vision was in dialogue with the other founders, sometimes opposed sometimes congruent. That is why he switched sides in 1800. And doubtless why he was murdered. He had real integrity and that got him killed.

Federal Government Militia & 2A according to the Constitution

Article 1 Section 8 spells out these provisions for the militia:

"The Congress shall have Power To ... provide for the common Defence and general Welfare of the United States [US Constitution (COTUS) Article 1, sect 8];

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years [US Constitution (COTUS) Article 1, sect 8];
To provide and maintain a Navy;[ibid]
To make Rules for the Government and Regulation of the land and naval Forces; [ibid]
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [ibid]

People think that "Militia" is the specific division of the Military and that somehow Army, Navy, Airforce, etc... are separate institutions. But in the framer's vision, at least that of Hamilton, Militia was seen as an expression of a collaborative structure intended to protect the States from each other and the people of the States from Tyranny: The Military as a Whole.

"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]

Indeed Article 1, Section 10 of the Constitution says:

"No State shall ... keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power..."

On the contrary the President is the one given that authority to carry out the laws of Congress:

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" [Constitution Article 2 Section 2 http://constitutionus.com/]

The constitution requires a division of effort and collaboration:

"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 Article 1 Section 8]

As I said collaborative. Even the appointment and training of the militia, which was delegated to the States was to be under the "discipline" prescribed by Congress. This is why the National Reserve is structured the way it is. The Constitution envisions collaborative government, not a rigid top down hierarchy, nor a chaotic temporary association of States.

Thus it is congress that has this powers:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"....[ibid]

Necessary for the Security of a Free State

Then of course we have the 2nd Amendment:

"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." [2nd Amendment]

This is a vision for collaboration. States are to be part of this, but Congress has the "General Role". Like an army with many colonels or divisions guided by a General Staff and a General. The President and Congress were intended to provide a general role for the military.

The Second Amendment is much more than a license to carry weapons for rednecks and insurrectionists. It is part of a vision of a collaborative government that would be able to "preserve the peace" and involve everyone.

But what constitutes the attributes and requirements for the "security of a free state" and why would a well regulated militia be one of them?

Collaboration with the States

To answer that question you have to go to the Federalist Papers to see what Hamilton said on the subject. Because Hamilton has a very clear vision of how the Federal Government should work and why it should work that way.

But first, there are some parts of the constitution that get passed over. One of the purposes of the Militia was:

"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

Hamilton was very clear that the reason we needed a "Well Regulated Militia" was to reduce the need for a standing army at the Federal level, but also to reduce the need for standing armies at the State level. Thus the militia was to be organized by the States and available to them when needed, but that organization was to be centered on the "magistry" of the United States. Not just to avoid tyranny from the Federal Government, but to avoid State tyranny, and even scarier states having standing armies and using them against one another. In [Federalist 22] Hamilton warns against the dangers of the establishment of State Armies:

"The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy." [Federalist 22]

Hamilton's vision of Military Service

Hamilton's vision of the Military Service is in Federalist 29 In it he refers to the essence of the concept of the militia:

"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. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States." [Federalist 29]

Universal Service and "Militia of the Whole"

In this passage Hamilton is referring obliquely to the concept of the "militia of the whole", which is the notion that the "militia" is an expression of the body politic, all the able bodied men (and in modern thought, women) of the country. And the cost of maintaining a mobilization of the entire "militia of the whole" would be ruinous:

"To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year." Federalist 29

Hamilton is endorsing the notion of voluntary Universal Service. 2A not a prescription for folks being armed for the heck of it, but in this context of Universal Service. And that service involves the importance of disciplining (at least training folks to handle weapons safely and not shoot themselves in the foot. And what he describes next is the basis for the notion of a National Guard and a Universal National Service:

"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; 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." Federalist 29

What is needed is a core cadre of well trained persons. Well trained volunteers and officers can both defend the country and prevent the need to have a giant standing army.

"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. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens." Federalist 29

Hamilton advocates that we need Universal Service, with volunteers trained to be ready for any necessity. He knew that Universal Service is an antidote to Standing armies.

"This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.''" Federalist 29

Regulating Arms

The Founders, especially Hamilton, did not endorse a loose confederation. Hamilton saw real danger in too much power exercised by the States, and importance of Union:

"the importance of Union to your political safety and happiness. I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation." [Fed 15]

He wasn't calling for a Federal Government that couldn't enforce it's own laws:

"Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation."

And he clearly saw the reality that there is no choice between coercion and some kind utopian anarchy but also that the commonwealth has to have the ability to apply coercion.

"This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it." [Fed 15]

Exceptional Principle

In a series of articles Hamilton reviews history of Federations from Greek times to his present moment with mention of the Netherlands and Poland -- which were both suffering disarray at the time he was writing. He summarizes his central point in Federalist 15:

"THE tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. [Fed 15]

Federations that depended on sovereign subdivisions or unanimity of consent eventually fell apart and dissolved into war as Federations formed by "uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre."

This was his "exceptional principle":

"This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war." [Fed 15]

Dangers of Standing Armies and of No Standing Armies

In Federalist 20 Hamilton warns [http://avalon.law.yale.edu/18th_century/fed20.asp]:

"I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY"

Hamilton pretty much dismisses the notion that the States could possibly be sovereign and independent without the country dissolving into permanent civil war.

"Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society."

Tyranny depends on Standing Army

Tyranny either at State or Federal level depends on the creation of standing armies. He warns that there is no viable alternative to the monopoly of force at the Federal Level because if the Federal Government doesn't have that power sectional factions or powerful states will step into the vacuum:

"It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation or omission of duty."

Sectionalism and Tyranny

Sectionalism proceeds from the ambitions and greeds of the leaders of any society. And the alternative to Union and commonwealth is the unleashing of the ambitions of such perverse and vicious persons:

"This would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union." http://avalon.law.yale.edu/18th_century/fed16.asp

So while there is risk at both Federal and State level from standing armies. The only real alternative to them is the "Citizen Soldier" and a collaborative system of Volunteer Army. This concept can mitigate the risk:

"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons [e]ntrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance."

And without the checks and balances of a Union those "Force of Arms" solutions become something no individual or disorganized citizenry can resist. The country becomes vulnerable to usurpation and real tyranny. It can happen, People like Mussolini were able to use militia and collaboration from authorities to impose tyranny. Hamilton understood a disorganized and poorly trained militia would be helpless.

"The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!"

That is enough for now.

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