October 1, 2010

talkin’ bare armed blues (F29)

Posted by Andrew under constitutional law, Federalist | Tags: , , |
[2] Comments 

Jeff: My problem is that your plan gives Congress control of our state militias, the very things that prevent federal tyranny.  Without them, what power do the states have if the federal government should attempt to effect by force of arms what by law or right it could never effect?

Alex: We don’t propose to disband the militia.  I’m not sure if you read the proposed document, or just the horror stories from the collection of folks that reason only so far as required to prevent honest discourse.

Jeff: The word “militia” sits there in the text, but it clearly does not refer to those bodies that have, up to now, been composed of men willing to fight for their home country, the state within which they live and work and raise families.  The “militia” of the proposed Constitution are bodies controlled by the federal Congress.  They might continue to live in their respective states,  but with whom will their loyalties abide?  The federal Congress demands their attention, and regulates their training.

Alex: It’s not like they’ll be swept up and taken to some federal brainwashing camp whereat they’ll forget all familial and community affections.  The whole nature of the militia is that they are local, and can be gathered where they already are, if need be.  They’ll still be living and working in their home country.  It stands to reason, then, that their loyalties will remain local.

Jeff: And I expect, then, that the Federalists will be sure to establish a standing army to whup up on my local militia.

Alex: But that’s where. . .

Jeff: And thus the federal power can freely ascend to tyranny. . .

Alex: Hold on, the militia. . .

Jeff: …because you will march your professional armies clear over the countryside.  I know my liberty tree cries ‘feed me Seymour,’ but its appetite is for both sides of a fight – the patriots and tyrants.  Liberty requires a credible threat to the powers that be.

Alex: Let me in here, Jeff.  That exact fear is precisely what I’m trying to address.  It is what the proposed Constitution, written by men with just your concern, intends to guard against.  In the first Article, five subsections address the federal land and naval forces, and our state-based militias.  The last of those, section 8.16, grants Congress power to organize, arm, and discipline the militia.

Jeff: Oh, great relief!  Why should that provision calm my concern?  The power to regulate our local militias is the power to do so poorly – to set them up to fail against the federal army.

Alex: And, if I may continue, section 8.15 allows Congress to call on the militias to execute laws, suppress insurrections, and repel invasions.

Jeff: You’re making me no more comfortable.

Alex: Now, you know a standing army could not march from one part of the continent to another when little emergencies require execution, suppression, or repulsion.  You know, full well, that the federal government will rely on local forces that can be whipped up and brought to action instantly and locally.  Don’t you see, then, that the federal government will have an incentive to train the militia units to the highest standard?  If a small band of troublemakers would cause damage to their neighbors and ignore duly enacted laws, the general government would be much more disposed to call up local forces to quiet the situation than to send a central army to remote wildernesses.  Further, using local militia will assure the remaining community that such needful force is against a common enemy, and not the result of federal whim. Remember your reflections after the militia responded to Mr. Shays?  “The interposition of the people themselves on the side of government has had a great effect on the opinion here.”  For all these benefits, the general government will have an interest in assuring the high quality of those militias, and will well regulate them to do so.

Jeff: And I’m supposed to just assume the federal government won’t just co-opt the militiamen into the central army?

Alex: You don’t have to assume it.  Section 8.16 lays it clearly out that the states will appoint officers to their respective militias.  Besides, we haven’t even formed an army.  But let me quote what I wrote before:

“. . .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. 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.”

Jeff: Well and good.  I’ll take your point.  But training is not, really, all there is to it.  In our own day we’ve seen the progress of military machinery.  What inequity in force should happen if the citizens that join militias are denied the same arms available to your federal army?  What prevents Congress from disarming the militia?

Alex: Everything I’ve said should explain why Congress would never disarm the militia.  And, again, those very same, well regulated militiamen are the surest prevention to a standing army.

Jeff: Well, you need to put that in a . . .

Alex: I know, I know, a bill of rights.  I’m telling you, though, you are not going to get your way with an amendment against standing armies.  General Washington can publically praise the militias all he wants; we both know he will have his professional army too.  But I’m willing to work with you, assuring that the first Congress will propose an amendment that the militia will, indeed, be well regulated, and not a sloppy ragtag of ill-prepared and off-target amateurs.

Jeff: That will never be disarmed?

Alex: And never disarmed.  For the purpose of a well regulated militia, the people’s right to bear arms shall not be infringed.

Jeff: I still want language that emphasizes the purpose of the militia.  Look, our republican government requires that people, belonging to a state, have a unit of force that is, in the end, loyal to that state and those people.  If the federal government should ever begin to act outside the dictates of our law or reason, that force is the last protection for these states that consented to the general government.  It ought be clear, then, what these militia, and the arms we secure, are purported to protect.

Alex: Ok, fine.  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.

Jeff: Alright, I’m thirsty. Fraunces Tavern?

Alex: My turn to buy.  I want to hear your thoughts on how bare a right it will be if bearing arms is, one day, akin to the mere sword today.


 

September 30, 2010

Did Gregg Allman sing “Sweet Militia”

Posted by Andrew under constitutional law, Federalist | Tags: , |
[2] Comments 

Happily, by the 29th column, Publius started defending particular passages of the proposed Constitution.  Article I, sec. 8 grants to the federal Congress several explicit powers.  Five subsections deal with armed forces: 8.12, 8.13, and 8.14 allow Congress to create an army and navy, and to make rules “for the government and regulation” of those forces.  Section 8.15 allows Congress to “provide for calling forth the militia.”  The difference between providing for such a calling forth and actually calling forth is an item we can discuss some other time.  What the provision makes clear, though, is that whoever does the calling can do so “to execute the laws of the union, suppress insurrections and repel invasions.”  Think Shays Rebellion.  Or, more recently, Governor Wallace.

The first four subsections are not, though, the topic of Federalist 29.  Rather, Hamilton responded in the column to anti-Federalists’ attacks on section 8.16, which grants to 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.

Bad enough was the prospect of a standing army; but here, the federal government presumed to take control of the state-based militias.  Hamilton’s response, in a nutshell, is: (1) a well trained militia – which it will be if the federal government controls the training – will be a good militia all the better at preventing federal tyranny; (2) the better and more efficient the militia, the less need for a standing army; and (3) the militia will still be true to the states, because the states appoint the officers. In the next post, I thought it would be fun to present F29 and my thoughts after reading it as an imagined dialog between the ill-disguised characters, Jeff and Alex.

The socio-political context, here, is interesting.  The following passages, I think, give a sense of the mood between the war and ratification.  It was good politics to celebrate the militia’s contribution to the war.  But, it seems to me, most realistic folks knew the need for a regular, well trained army.

From John Ferling’s A Leap in the Dark, page 190:

At the end of 1775, during the siege of Boston, Washington had watched with horror as his army of short-term enlistees went home.  He implored Congress to mandate longer enlistments, even for the duration of the war.  Congress refused and also rejected pleas for using bounties to induce men to reenlist.  Its actions stemmed from an abiding fear of standing armies.  Many in Congress considered a standing army an “armed monster” and an “infernal machine.”  Samuel Adams, in language reminiscent of that which he had used during the British occupation of Boston after 1768, declared that soldiers in a standing army “are apt to consider themselves in a Body distinct from the rest of the citizens.”  To the end of the war he wished that the Continental army consisted of militiamen conscripted for brief tours of duty.

And this, from George Washington (grabbed off of wikipedia):

To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows…if I was called upon to declare upon Oath, whether the Militia have been most serviceable or hurtful upon the whole, I should subscribe to the latter.

 

December 16, 2007

Second Fiddle

Posted by Andrew under article, constitutional law, second amendment | Tags: , |
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The Supreme Court has not looked squarely in the face of our second amendment since 1939. Back then, the Court ruled that it was OK for the National Firearms Act to ban the interstate transport of sawed-off shotguns. The defendants argued the law was unconstitutional, pointing to…

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.

But the Court, in US v Miller, didn’t agree that the amendment gave these folks an unfettered ability to carry around sawed-off shotguns. The right of gun possession had to have a “reasonable relationship to the preservation or efficiency of a well regulated militia.” The Court suggested that, to be within the scope of the second amendment, the weapon would have to be part of the ordinary military equipment.

With one 20th century visit to the amendment, we will this term get our first second amendment visit of the 21st century. The Court will decide if the DC Circuit was right to rule that the amendment deems DC’s handgun ban unconstitutional.

Maybe we can talk about how the case ought to come out on this web space. But let’s begin on a lighter note.

Adam Freedman wrote the joke of the day in his column in today’s Times. His piece is on the grammar of the amendment, namely its orgy of commas. Quickly, his point is that comma use in the late 18th century was willy nilly and that it would a folly to stake much interpretive weight upon the commas. In the end, it’s best to take them out altogether and see what you get.

In reading his point, I thought this was a hilarious nod to the whole gun/2nd amendment debate…

“The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas).”

 

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