Monthly Archives: July 2016

A Well-Armed and Well-Regulated Militia as a Mechanism for Gauging the Presence of Tyranny

Certain semiautomatic rifles, particularly the AR-15 and similar configurations, have been characterized by some as “weapons of war”. Since there are significant differences between the AR-15 and M16, particularly in the modes and rate of fire, it is well-known the characterization is inaccurate.

However, given the similarity in general design, including its ability to accept a high-capacity magazine, let us for the moment accept the designation as a “weapon of war”.  Does this then disqualify it for civilian ownership?

Preceding posts have sufficiently demonstrated, it is believed, that a large block of civilians in this country are compelled, in certain exigent circumstances, to provide military-type services to the country or their State in their capacity as members of the unorganized militia — or at least be available and prepared to do so.  By definition, then, would they not be engaged in war-type activities?  And, if so, should they not then be experienced in and have available a “weapon of war”?  How then can they be proscribed from ownership of and familiarity with such a weapon?

Moreover, the statutory prescription of potential militia service is parallel to the prefatory clause of the Second Amendment.  While historically and contemporaneously there have been continued conflicting interpretations of the purpose and scope of the amendment, there can be no dispute it includes two (2) clauses and that at a minimum the right to keep and bear arms was to enable the people to perform militia service.  Now, by both historical and legal definition, the performance of militia service was engagement, as the circumstances might require, in paramilitary and military service.  How then is the keeping and bearing of a “weapon of war” incompatible with this capacity?  Rather, does not this capacity instead require it?

One might also analyze the question from the perspective of the purpose of a militia.  It is beyond cavil that a militia was considered more harmonious with liberty, in contrast with the greater threat to liberty that was posed by a standing army.  While not as universally accepted, there was also an understanding that a militia could potentially act as a bulwark against a standing army controlled by persons with objectives in conflict with those of the larger — or, at least, a sufficiently substantial — body of the people.

Certain critics have cast scorn on the continued viability of this function, given the geometrically-superior firepower of the country’s military forces. How can, they say, a militia equipped with AR-15s and sidearms realistically oppose a standing army with, inter alia, M16s, tanks, fighter aircraft and bombers?  This however overlooks a singularly perceptive observation (or, at least, its corollary) from our Declaration of Independence.  It is tendered that this provides the mechanism which preserves and proves the viability of such a resistance — albeit one that hopefully will never be required.

Mr. Jefferson noted that “[p]rudence … dictate[d] that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.”  Thus, even if evils are being perpetrated, they are likely to be borne by the greater body of the populace if they are not excessive and egregious.  Any rebellion by an insignificant body of the populace then allows, if not compels, a conclusion that the causes of the outrage are sufferable.

What then is the conclusion that is allowed, if not compelled, when a significant body of the populace engages in some form of insurrection?  It is tendered that it should be deemed then that these evils have now become magnified into ones which are excessive and egregious.  And it seems Mr. Jefferson concurs, as he further states that in such an instance of “… a long train of abuses and usurpations … evinc[ing] a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”

Let us then suppose that just Five percent (5%) of the population between 15 and 54 years of age deemed themselves outraged by a “long train of abuses and usurpations”.  Nay, instead of more than 8,500,000 citizens, let us suppose that but One percent (1%) resolved to resist what they deemed despotism.  What is conceived to be the likely reaction of the U.S. military forces to a civilian force of more than 1,700,000 citizens?  Would they likely view with equanimity the slaughtering of such a large body of their fellow citizens, deeming it to be consistent with morals and the law?  Wouldn’t they instead be likely to conclude that the perceived grievances of their fellow citizens had become, consistent with Mr. Jefferson’s formula, “insufferable” and due to excessive and egregious “abuses and usurpations”?

It is tendered that out of natural and innate morality — much less and regardless of any concern for their potential jeopardy as a consequence of possible commission of War Crimes and Crimes against Humanity — these military forces would conclude that the actions inspiring such resistance, as well as any orders to overcome such resistance, were patently illegal, and therefore would themselves resist.

It would be impossible of course to reduce to mathematical certainty what proportion of the citizenry would be required for an observer to conclude that resistance was legal rather than illegal.  Suffice it to say that there would be sufficient parameters, when viewed in the context also of any surrounding relevant circumstances, to allow a resistance by a substantial body of the citizenry to be cause for concluding the resistance was justified.  And upon a determination of such justification would instead eliminate the despotism that caused the resistance.

Consequently, a citizenry keeping and bearing arms sufficient to cause a suspension of exertion of force against them, in order to allow an assessment whether their actions were rather justified, demonstrates that the existence and interposition of a militia remains a viable mechanism for resistance to potential despotism.  And the keeping and bearing of arms compatible and consistent with their function as a militia continues to be an essential right.

WAYNE A. SMITH
Forester Twp, Michigan USA
04 July 2016

Duty of Every Citizen as Militia Member to Defend State as Nullification of Restrictions upon Means of Defense

As suggested by my three (3) postings this past February 26, I commenced work upon and intended to post the below shortly thereafter; however, other circumstances and obligations interfered with my completion hereof. Those three (3) postings provide context and reference for this posting and, in some respects, elaborate on this subject.)

The massacres over the past seven (7) months have, as is well-known, resulted in more calls for “gun control”. Unfortunately, these have to a great extent focused on the type of weapon used rather than the type of person who used the weapon or, perhaps more precisely, the deficiencies in the person who used the weapon.

In my opinion, the controversy and ill to be eradicated can be better addressed by attention to the well-regulation of persons who acquire what are deemed to be certain kinds of weapons that justify further regulation. This is further addressed at length in my ASSAULT WEAPONS BAN Memorandum, one of those postings published at this site on February 26. For prolonging exhausting and futile discussions about types of weapons, with certain exceptions of course, ignores and repudiates the reality of the right to keep, and justification for keeping, arms, the obligation to do so, and the necessary circumstances incident to the exercise of this right and obligation.

It is indisputable that there is a natural, and long-recognized common law, right to self-defense.  Nay, the writer tenders that there is not merely a right but further a duty of self-defense. The fact of birth of each living person is a given. If a person was born, then there is a reason for his or her life, be it, among possibly others, the choice of God, or the decision of his or her parents, or a role or purpose for him or her to perform, or an objective for him or her to realize or status to attain. In any event, the very fact of the person having life necessarily implies that it ought not be terminated but ought be allowed to endure, for fulfillment of whatever might have been its reason; for each person had no control over and was not the cause of his or her birth. If then he or she as it were was “impressed into duty”, he or she has no right to shirk this duty but rather a further duty to defend himself or herself from anyone who might endeavor to terminate their life and thereby prevent him or her from performing this duty or realizing their destiny.

The right to keep arms is but a corollary of that right and duty. While the circumstances under which one might have to defend oneself have not it seems been explicated, nevertheless the scope of this right of self-defense is intrinsically wide. For it must encompass at least each of the situations where a person is called upon to defend oneself against a:

  • savage animal,
  • solitary criminal aggressor,
  • band of criminal aggressors,
  • foreign or rogue domestic paramilitary force, or
  • foreign or rogue domestic military force.

All of these situations indicate that there can not be a severely-circumscribed scope of arms to which one is entitled. For an individual weapon that might be sufficient to protect oneself from a small savage animal would not be sufficient to protect oneself from a military force. Consequently, the conclusion must be that a person is entitled by right to keep arms that are sufficient to protect oneself against each of those exigencies.  [The writer of course recognizes that there are certain legal limitations to a broad rule — limitations though which are not incident to or inherent in the natural right of self-defense — as historical usage has, first, extended the entitlement to weapon types which an individual would commonly keep and personally bear, and, two, carved out weapon types that are specialized or might be usually stored in a facility such as an armory. Still, the burden should be upon the one arguing for a restriction that the type is one that should fall into the latter, rather than the former, category.]

Buttressing this line of reasoning is the insufficiently-examined significance and description of what a militia consists. The coupling of the militia phrase in the Second Amendment is frequently used as an argument that the right in the succeeding phrase should be limited.  However, this ignores what was the understanding of the composition of the militia at the time of its adoption. In addition, even the present meaning of the term “unorganized militia” — assuming that the term’s existence is even recognized, much less the significance thereof appreciated — encompasses a broader range of persons than is frequently acknowledged.  (For the succeeding citations the reader is referred to the writer’s Statutory Definitions of U.S. Militia posting this past February 26.) As a perusal of 10 USC 311 indicates, all able-bodied citizens of the United States, between the ages of 17 and 44, inclusive, are automatic and mandatory members of the militia. It would seem that the States have authority to expand the composition thereof since, for example, Michigan has expanded, by 16 years, the age group of persons who compose its unorganized militia, they likewise being under compulsion to be members of the State militia. MCL 32.509.

And what duties and in which circumstances may the unorganized militia be called upon to perform? Among them are to:

  • “… suppress Insurrections and repel invasions” US Const, art I, § 8, cl 15.
  • serve in the defense force “… in case of riot, tumult, breach of the peace, resistance of process, or for service in aid of civil authority, whether state or federal, or in time of actual or imminent public danger, disaster, crisis, catastrophe or other public emergency within this state.” MCL 32.555.

At a minimum certain of these duties, and the circumstances in which they would be performed, clearly are paramilitary or military in character. And is not some of the material with which they must be equipped well known?

If these persons are then part of a contingent military force and thus would be bearing arms in this service, is it not then incumbent upon them to have available and be trained in the use of the weapons which they might be required to employ in a hostile action? And it would seen that such a possible scenario is not simply academic, since, for example, both the U.S. Constitution and the statutes of Michigan allow the President and the Governor, respectively, to call forth the unorganized militia in exigent circumstances. US Const, art I, § 8, cl 15; MCL 32.555. If a person then is a potential military conscript, is not familiarity and training in the use of the arms necessary for them to competently perform their function essential?

Now it is perceived that an argument might be presented that the arms need not be kept by these members of the unorganized militia, but could be stored in some type of armory facility. However, in addition to this being inconsistent with the terminology of the Second Amendment, viz, a right not only to bear but also to keep, there could be a gross impracticability in the administration thereof. For in the event of some type of untoward and unanticipated emergency, might not the members of the unorganized militia require immediate resort to those arms? In addition, having the arms constantly available allows these members to frequently practice and train and perfect themselves in the use of the weapon, something that would not be as conveniently, if at all, possible if they were not always readily available.

In sum, undue restrictions upon the types of weapons available to the populace would not only be inconsistent with but would conflict with and vitiate both the rights granted to them and the duties imposed upon them. For these reasons, any effort to restrict or prohibit certain types of weapons appropriate to these potential functions would negate and interdict this right and this duty.

The writer shortly will further address a related issue in a succeeding posting.

WAYNE A. SMITH
Forester Twp, Michigan USA
03 July 2016