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This article was written and published prior to the tragedy
Oklahoma City which occurred April 19, 1995.
By Karen L. MacNutt, J.D.,
Contributing Editor, Gun News Digest
US v. Emerson
Silveira v. Lockyer
Ninth Circuit reponds to the Fifth.
American State Papers
Federal records, 1790-1838
The National Rifle Association
What does the NRA really want?
The National Rifle Association
Charlton Heston Speaks
The Washington Post
Getting Commitment from Congress
The blood on their doorstep
The Libertarian Fantasy on the Supreme Court
Thomas and Scalia
Joyce Lee Malcolm
Ayn Rand, Blackstone
"Palladium of the Liberties"
John Kenneth Rowland
Militia Act, 1792
Mass. Militia Act, 1793
Reviews Ayn Rand
National Review, 1957
Karen L. MacNutt is a consulting attorney for the Second
Amendment Foundation, National Rifle Association and Gun Owners
Action League. She maintains a general law practice Boston
Massachusetts. She is also an active rifle and pistol
competitor. This article is an expanded version of one that was
first published in the March, 1995, issue of Women & Guns
This article should be read in the overall context developed in the potowmack Institute files. It was published by the same Second Amendment Foundation that argued in the Warin case: "...the basic right of free men to take up arms to defeat an oppressive government." There is great confusion here as to what the Second Amendment Foundation and the gun lobby generally really want. Are we to have gun ownership within the rule of law for purposes arrived at through "settled standing law," to use John Locke's words, or do we have an individual right outside of the rule of law. The extralegal individual right in one form is the rightwing fantasy that all those private individuals clutching guns, outside of any accountability to public authority, are a defense against tyrannical encroachments of government. In another form it is to "outflank" this government with "armed citizen guerrillas." (See "The Founders and the AK47") Or, the individual right may be just a childish insolence, elevated into a civil pathology, that we do not submit to public authority, that we hedge on the consent to be governed by maintaining extralegal armed force. None of these purpose makes any sense. I invite the gun lobby to engage the debate.
MacNutt's article argues for accountability to public authority
and against it at the same time. MacNutt provides some strong
statements in support of the advocacy of the potowmack Institute.
She writes that the farmers who stood up against the British at
Lexington and Concord were "agents of municipal and county
government" and that the "local government committed to the side
of American Independence." That is an accurate description of
the historical circumstance but it is very different from what is
heard from not just the militia movement but normally from the
gun lobby itself and, not just from the gun lobby: references to
the colonial militias as extralegal armed force that made the
American Revolution is frequently and uncritically printed in the
op-ed pages of the Washington Post. MacNutt mixes her
accurate arguments with the usual gun lobby rhetoric about
"anti-gunners," "elitists," "fascists" in the government, and an
"individual right," a right which the courts have thoroughly
rejected. She goes from condemning the militia movement to
defending the individual right in terms that imply something more
than just lawful civilian sporting and self-defense purposes.
NRA's position statement on
militias wants to have it both ways too. What MacNutt argues is
the rightwing fantasy that somehow all those guns in private
hands keep the government under control. For
William Cooper and Pat Robertson the guns
keep the New World Order under control. All those private
individuals would have to include citizen militias, Black
Panthers, the Nation of Islam, the Jewish Defense League,
organized crime, the Ku Klux Klan, Puerto Rican Nationalists and
the Communist Party all of whom think they are oppressed in some
way by the Federal Government but not all of whom have an equal
right to claim the right-to-arms as a right-to-insurrection.
When gun owners decide that they are loyal, law-abiding citizen
of this country and live under its laws, they can enter into the
political process and participate in making the laws that
establish the legal categories of gun ownership. They can
participate in making those laws in their rational self-interest
which cannot rationally include maintaining extralegal armed
force. Every significant political theorist who has ever lived
has given the cause for entering political community as
self-preservation and self-defense. From that cause follows
conditions and obligations. The highest obligation is that we
make the system work. We do not point guns at it. Usual gun
lobby rhetoric fortified by libertarian proclamations does not
accept the legitimacy of the political processes that MacNutt
encourages gun owners to participate in. The gun lobby
participates in the political process to pervert the political
MacNutt's article seems to indicate that the implications of
private armies have started to worry the gun lobby's at least a
tiny bit. It is time for concerned citizens, gun owners and
non-gun owners alike, to start thinking about what we are doing
here as a political community. If we can't get it right, there
are other forces ready to move in. The Nazi Party Stormtroopers
were, after all, "armed citizen guerrillas" who "outflanked" the
legal German government in the early 1930s. MacNutt encourages
use of the ballot box to affect political change. What she wants
from the ballot box is not clear. The Nazi Party used the ballot
box to gain a strategic position. MacNutt advocates the ballot
box to control the Presidency and Senate in the next election so
that gun owners can control the Supreme Court. Does that mean
that the Supreme Court would then be transformed to
institutionalize an individual right to armed anarchy? The real
objective is very confused.
A growing number of Americans have been attracted to the so-called "militia" movement. By that I am not talking about historical re-enactments, the National Guard, or any organization sponsored by a local or state government. I am not talking about military schools, survivalists, self-defense courses or adventure game people.
I am talking about those who have joined private associations which they believe constitute the "militia" of the United States. For the most part they are good-hearted, honest, well-meaning, loyal but naive Americans who are legitimately concerned over our increasing loss off individual freedom, loss of nationality, and the growth of violent, politically inspired, law enforcement activity.
These are serious concerns which must be met with effective action; action which the American public has the power to implement through the ballot box.
Those who believe they can preserve American freedoms through the "militia" movement are sadly mistaken.
The militia movement is flawed. It has failed to properly define the strategic centers of power of those they claim to oppose. That center of power is not the military. It is public opinion. Because they have not properly defined the problem, the "militia" movement is playing into the hands of the very people it fears.
America's most dangerous enemy is its own imagination run wild. There is an epidemic of people convinced that our world or society is coming to an end for one reason or another. They say something horrible will happen unless drastic steps are taken. Their fears will become a self-fulfilling prophesy unless people stop looking at our society as a place where the tyranny of the majority forces its concept of "good" on its neighbors.
On one side of this growing epidemic are people who see big government and internationalists as the destroyers of freedom. They see "foreign troops" in the United States as evidence that the end of our sovereignty is near.
I may well believe that big government and internationalists are a threat to American freedom. It may well believe America's progression towards fascism, a form of socialism that allows individual to hold title to property but gives control to the government, is far progressed. But fears based on the sighting of foreign troops in the United States are not well founded and do not address the real problem. Foreign troops have trained in the United States for over 50 years. Joint exercises have been held in the United States and in other nations since the Second World War. There is nothing new or evil about this. Because the US contributes to UN "peacekeeping" missions, UN marked vehicles will turn up on US military reservations. Often these are our own vehicles which have not been repainted after a UN mission. Since the Gulf War, Soviet-made vehicles have shown up on military reservations to increase training realism or as war trophies. There is nothing evil about that either.
Commentators who use such things to scare the American public are so far off base, that they discredit those who are seriously concerned about the path our country has taken. Such claims are provocative and will eventually lead some well meaning Americans to do something really dumb. When that occurs, those who are our true enemies will use the incident to abrogate more of our liberties an take more power from themselves.
On the other side of the equation are all those agencies that must justify their budgets to Congress every year. At one time they had Russian spies to watch. Now they have to find a new "threat" to justify their existence.
These agencies and TV journalists have something in common. They would both be out of a job if they reported the truth; that is, on some days absolutely nothing newsworthy happens. The journalists, like the agencies, must find a "problem" to justify their jobs. They will strain to find illegal activity even if they have to create it. There is no "conspiracy" to all this, just human greed.
Those of you who followed the Weaver incident in Idaho will remember what lead federal agents to besieging Weaver's wilderness home. It was Weaver's refusal to help agents obtain incriminating information on the "politically incorrect" groups he belonged to or had access to. Well, I disapprove of those groups; but, under our system of government they have a right to exist without government agents twisting the law to prosecute them. Weaver claimed that federal agents altered a gun after Weaver sold it to them in an attempt to blackmail Weaver. The agents claimed the gun was illegal. Weaver refused to turn informant. What next occurred had all the earmarks of a mafia hit. When Weaver missed a court date on the gun charge, US Marshals surround Weaver's home and, in the ensuing gun fight, killed his 14-year-old son and, in the standoff which followed, an FBI sniper killed Weaver's unarmed wife while she was holding an infant. Some believe that had it not been for the persistence of Weaver's friends, the agents would have killed everyone in the Weaver household. No satisfactory legal action has been taken against the against the agents. Although this might sound preposterous, it tracks federal law enforcement tactics when those tactics are played to extreme ends.
The methods used by federal law enforcement against drug dealers have been: the sting, where government agents set up an illegal situation to see if the person targeted will commit a crime; or, the information, where someone is given immunity or leniency for an offense if they will testify against others. With only a slight twist, these methods can become an illegal entrapment or extortion.
The business of religion is to speak against immorality. They do not violate the "separation" clause because there is no "separation of church and state" clause in the Constitution. The Constitution prohibits Congress from establishing a religion and it prohibits Congress from preventing people from exercising their own religion.
If religion is being set up for persecution, then the "militias" do not stand a chance. What our new "politically correct elite" preaches is pure prejudice. The type of prejudice that led federal agents to commit the crime of genocide at Waco, Tex., where federal agents destroyed an entire religious sect. Key to that destruction, was a successful propaganda campaign designed to isolate the Davidians from their natural allies, law-abiding gunowners and the religious communities.
At the very time the government is looking for an "enemy" to "guard the public against, good citizens are being convinced to dress up in military style clothes and look very menacing to their neighbors. They are doing this in the face of a concerted, and partially successful, campaign by the anti-gun forces to make anything "military" seem evil unless controlled by the government. Indeed, high on the anti-gun agenda is the objective to suppress anything that promotes a "culture of violence." They are, in short, not interested in crime, they want to legislate against ideas. They are book burners at heart.
The "militias" are perfect targets for those who need an "enemy" to "investigate." The private "militias" look and sound menacing. They possess things many people fear. When the time comes for the government to move against such groups, they will find themselves isolated from the general public. They will be made to look like such fanatics that, no one will question the repressive acts of the government. No one will come to their defense. The publicity will be so bad, even their friends will abandon them out of fear of being dragged down.
Those in "militia" movement might as well have uniforms with bullseyes painted on them and a big sign that says "kick me." Their organizations will ultimately provide the excuse for government to enact all sorts of restrictive legislation not only against guns, but against the civilian ownership or knowledge of anything the government defines as "military." After all, the elitists will say, what legitimate sporting need is there for civilians to have military equipment?
Not only is the "militia" movement playing into the hands of its enemies, its philosophy is flawed.
The 'militia" movement is based on a premise the anti-gun groups have pushed for years, that the Second Amendment is a collective right and only the "militia" is guaranteed the right to have arms.
That is absolutely false. The Second Amendment is an individual right. The Constitution is a compact or contract between equals. Those equals are each individual American. The founders of our country believed that everyone had the God-given right to determine what was in his or her own interest. No individual was better, or had a higher right by reason of birth or position than any other individual. Government was the creation of the people and exited to defend their rights of the individual. The "People" of the Constitution are the individual people of the original states who voted to adopt the Constitution. All Americans today are the heirs to their legacy.
Throughout the Constitution, the word "People" means the individual citizen. Look at the Fourth Amendment which states:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . ."
No one would seriously claim the Fourth Amendment was not an individual right. When the Constitution talked of collective rights, it spoke in terms of the states such as in [Art. I] Section 10 of the Constitution which states: "No State shall, without the consent of Congress. . .keep troops or ships of War in time of Peace. . ."
The anti-gun forces say that only the militia can have guns. It is clear that Congress has full control over the militia of the Constitution. Under Section 10 [sic (actually, Art. 1, Sect. 8)] of the Constitution, Congress could abolish the National Guard or, as it is currently doing, reduce it to any size it wished.
Section 9 [sic (actually, Art. 1, Sect. 8)] of the Constitution gives the federal government the power:
"To provide for the organizing, arming, and disciplining, of the militia, and for government 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 authority of training of the militia according to the discipline prescribed by Congress."
The Constitution gives the Federal Government control over all the military forces of the United States including the militia.
But what is the Militia? The Militia was, and still is, a grouping of citizens capable of being called to military service. It is not an organization. Individuals in the group have no power to act unless they are called to service. Once mustered into service, the militiaman becomes part of the military and is placed in a military unit. He is subject to military law and is obliged to obey the orders of his officers.
Who has the power to call out the militia? The President, your Governor, and in most states, the sheriff or the municipal authorities. The purpose for which the militia can be called into service is to enforce the law, to protect the lives and property of citizens of the community, to suppress riot or insurrection, or to repel invasion.
The promotion of policy or politics is not a lawful reason to call forth the militia. When the militiaman becomes a soldier, he loses his right to trial by jury and can be punished by a court martial, a broad of military officers. If he fails to obey the lawful orders of his superiors, he can be punished. In time of war, he can be executed for failure to obey those orders. If a group of militiamen fail to obey orders, and engage in what would be considered lawful protest in the civilian world, the military considers that mutiny. Mutiny is a serious offense which, under certain conditions, can be punished by death. If a body of persons under arms resists the lawful orders of civilian authorities, that may equal sedition or treason. Those crimes also carry the death penalty.
Being in an active militia unit is not a game. It carries legal responsibilities.
Although America has had a long history of "independent" militia companies, those companies were always charted and sanctioned by the civil authority. After the American Revolution, independent militia companies became fashionable just as did fraternal organizations such as the Masons. The companies often had fanciful names and uniforms patterned after some elite European unit. If you are ever in Boston on the first Monday in June, go to Boston Common. There you will witness the election of officers of the Ancient and Honorable Artillery Company, the nation's oldest militia group. The pageantry is outstanding.
The independent militia companies were charted by the state, swore allegiance to the state, and were a part of the state's military forces. They were only "independent" in that they were not part of the rigid county militia companies required by the early militia laws. The "independent" companies were subject to being incorporated into the active army during times of emergency. Indeed, they were, in large measure, the people who fought our Civil War.
The farmers who fought the British at Concord and Lexington in 1775, all signed the muster book and were soldiers at the time of the battle. The state payroll still exists for their services. There were not a mob or private association. They were the agents of municipal and county government instructed to enforce local law and protect local citizens.
What was important about Concord and Lexington was that local government committed itself to the side of American Independence.
As long as the civilian authority is elected by the people, it represents the wishes of the people. To maintain the Republic, all armed forces must be answerable to the people through their elected representatives.
No matter how much you may disagree with elected official, our system of government gives them the authority to control the military. It reserves to the individual people the right to keep and bear arms to defend themselves and their rights. The resort to force, however, is never justified which we have the ability to elect our government and conduct our affairs under the rule of law.
The reason the Second Amendment guarantees individual people the right to keep and bear arms, not the militia companies, is that there was a fear that the federal government would use its power to equip and call the militia to duty as a means to disarm the general population. It was therefore necessary that individuals, in their individual capacity, not their military capacity, have the right to have guns.
The authors of the Constitution believed in universal military training. They were adamantly opposed to leaving matters of arms in the hands of professionals. In looking to the historical precedents and the writing of Machiavelli, they believed the greatest threat to a republic was professional armed force, be it the army or an internal security force.
The authors of the Constitution felt that if the whole population were trained to arms and were in fact armed, no one would dare try to overthrow the Republic. What they established was a balance of power much like the Mutually Assured Destruction concept which prevented a nuclear war during the Cold War. It was not that an armed population would have an easy time forcing a rogue army to behave, but the resulting civil war would be long, bloody, and as destructive as anything we have seen in Lebanon, the Balkans or Africa. It was an assurance that no one could profit from an attempt to seize power. It was not a preferred form of action. It was a result so terrible that no one would wish to risk the event.
It has been a long while since there was a land-based war in the United States. If such a war took place, our cities would look just as devastated as those in Bosnia. Our children would be just as pathetic. Our population would starve just as readily. It is not an undertaking that any sane person would willing engage in.
America has a long tradition of the military keeping out of politics. We have avoided the military coups which have plagued many other countries by acknowledging a simple truth that the "militia movement" ignores. As revolutionaries from Sam Adams to Mao Zedong will tell you, you cannot have a successful revolution without the support of the people. As any military authority will tell you, you cannot win a war unless you have a well disciplined force and the organization to supply it. In our system of government, if you are well-organized and have the support of the people you do not need violence to control the government. You just make sure your supporters vote.
Our Constitution is a marvelous document which institutionalized revolution. Within its pages, it provides for the peaceful overthrow of the government every two to four to six years through the electoral process.
We have just witnessed such a revolution. The Republicans captured Congress because they were better organized and had more public support than the Democrats.
Unlike some nations, the shift of power in the United States we so orderly that most people were unaware of the amount of power that changed hands. In 1996, the "revolution" of 1994 will either continue or be lost when the President runs for office. A continuation of the "revolution" could result in the continued control of the House of Representatives, up to two thirds of the Senate and Presidency. Control of the Senate and Presidency leads to the control of the Supreme Court. Politically savvy power brokers are already marshaling their "troops" for that fight.
While some Americans are running around the woods training for a doomsday that will not arrive in the way they envision, real power is being amassed by those who created and control the political machines which make and break candidates. The glory of the American system is that anyone can build a machine.
As long as the American people can vote and run for office, the method the Constitution provides for righting political wrongs is through the political campaign. If we have bad government, it is because too many good people do not pay attention to the political system. From time to time, the people will rise up to vent their anger in an election. Our job is to keep that political pressure on.
That brings us back to the "militia."
There is a big difference in being a part of the militia and being part of a militia. The militia are all citizens capable of bearing arms. A militia is an organization of citizen soldiers. I have no problem with such organizations when organized by a city, county or state, but I do have problems with private militias.
Where the regular army is the military power of the central government, the militia is the military power of county and municipal government. The militia companies were a part of local government. Just as people elected their selectmen, the militia companies often elected their own officers.
Until World War I every time the United States went to war it had to ask the states for the troops to wage war as the regular army was not large enough to do so on its own. This method insured that any commitment of our armed forces would be publicly approved. The first time we attempted to wage a major war without such approval was Korea. The second time was Vietnam.
The American military, including the militia, have a long, honorable and good tradition of not being political. The Constitution places the military under the control of civil authorities elected by, and responsible to, the people. That is as it should be.
Real militiamen are subject to military discipline under the UCMJ or the equivalent state militia law. They can be punished if they engage in conduct that is inappropriate for the soldier, even if that conduct would be lawful of a civilian.
The private "militia" companies are implicitly accepting the anti-gun argument that the Second Amendment does not guarantee individuals the right to keep and bear arms. The Second Amendment is an individual right. That right exists so that the people can defend themselves individually and be available when called by the civil authority to enforce the laws or defend the community from invasion. If the Second Amendment referred to militias, then arguably only those people in an organization controlled by the government would be able to have guns.
By running around in "militia" companies, people are wasting valuable resources which could be used for effective political action. Our opponents are using the political system for all it is worth. We need every man and woman working in the trenches of political campaigns, not in the woods. We can effect elections. We can be politically powerful. Last November's elections show that. We must keep up the political pressure. If the organizational time and ability being used to create "militias" were used to create effective political machines, we would control numerous elections.
Real soldiering is not fun. It is grueling, tedious grunt work interspersed with moments of abject terror and hideous destruction. Political campaigning is tiring, monotonous work interspersed with raucous parties and wild rallies. Parties are more fun than devastation.
Last, the anti-gun factions have historically made progress by frightening the American public. The "assault weapon" legislation passed because of the panic created in the general population. We have entered an era when much of the security forces of the federal government need to create a "threat" to justify their appropriations. Agency rumblings about "cult," "survivalists," "right wing extremisms," and "neo-Nazis" are all warning signs that there will be an attempt to create the image of an internal enemy to justify budgets and repression of political opponents. The only "fascists" we have to worry about are those who hold high government office and attempt to justify destroying individual rights in the name of some collective "good."
The "militia" groups play into the hands of our enemies. Some flashy crime will occur and rightly or wrongly the "militia" groups will be blamed. There will be exposés on the tabloid TV programs guaranteed to make all gunowners look crazy. There will be a demand for Congress to act. No elected official will want to be seen with radicals even though they will privately admit there is nothing to all the media hype. Legislation outlawing all sorts of things will be pushed through outlawing things that promote what the anti-gunners call "the culture of violence." That includes historical reenactments, the collecting of military memorabilia, the right of self-defense, and the thought that individuals can make up their own minds as to what is in their own best interest. It will all be illegal because what the elitists want to control is our beliefs, not out actions.
The key to preserving freedom is to educate the American public,
to organize for effective political, and to use our
organizational resources to take advantage of the political
process to its fullest.
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