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