I shamelessly clipped this from SSG. It is long and worth the Read, I have some thoughts on the RBG situation but that blogposting isn't completed.
This essay is intended to be read together with “A Theory of Citizenship”
The prior essay argues that citizens are officers of the state, and
that citizenship is where the sovereign power resides. This is why (that
essay argues) the Declaration of Independence could correctly argue
that the state may be altered or abolished by the citizens, should it
become destructive to their rights. Though that power is revolutionary,
it is more often a source of stability because it restrains overweening governments.
Similarly, though that power justifies the people in overthrowing a
bad government, it more often is used to support one the citizenry
continues to believe worthwhile. This use of the militia — note that I
am speaking of “the” rather than “a” militia — is so much less
controversial that much of it is black letter law. However, some parts
of it have not been spelled out, and they are important to our current
situation. This essay will explore what the militia is, when the militia
can be called up, by whom, and for what just and proper purposes; and
how the militia can act to stabilize our current situation, in which our
different levels of government seem to be striving against one another
rather than working together.
I. Black Letter Law
That the militia exists, and that it has permanent role in ending
unjust insurrection or invasion, is quite clear in American law. The
Constitution grants Congress the power to use “‘the Militia to execute
the Laws of the Union, suppress Insurrections and repel Invasions,”
under command of the President, who can determine who their officers
should be.
The militia exists at both
the state and Federal levels, which means that the same citizens that
might be called up by the state officers can also be called up by
Federal officers and regulated by Congress while in Federal service. The
Second Amendment to the United States Constitution famously describes the militia as “necessary to the security of a free state,” that is, not as an optional but as a necessary and essential feature.
The laws governing exactly who is in the militia have changed over
time. As of 1916 it was “all able-bodied males” who were or were
intending to join the American citizenry; currently, according to 10 USC § 246,
it is “all able-bodied males at least 17 years of age and, except as
provided in section 313 of title 32, under 45 years of age who are, or
who have made a declaration of intention to become, citizens of the
United States and of female citizens of the United States who are
members of the National Guard.” This includes the “unorganized militia,”
that is, everyone not in the National Guard. Thus, ordinarily male
citizens are always in the militia, and females if they elect to be.
Note that the state power to legislate around the militia arose prior
to the formation of the United States, and thus not restrained by
Federal power. Thus, while Congress may pass laws to regulate the
Federal use of the militia, it may not impose those rules on the same
citizens insofar as they are serving as members of their state militia.
By the same token, state rules may not constrain the militia if it is
acting in Federal service.
II. Case Law
There is a significant piece of case law concerning the militia and its right to keep and bear arms. In US v. Miller, the Supreme Court ruled on militia protections under the Second Amendment. The more recent Heller vs. D.C. ruling treated the right of individual citizens qua individuals to keep and bear arms, but the Miller decision focused on the right to keep and bear arms for militia purposes.
The decision found that American citizens have a right to keep and
bear arms for militia purposes insofar as those arms are of military use
proper to a militia. A sawed-off shotgun was not protected, the court
said, precisely because it had no military use that was obvious to them
(though in fact such weapons were regularly used in the trench warfare
of World War I, the most recent war before Miller). The
decision includes an excellent summary of early writings on the militia,
both from the Founding and after, and is worth reading in full.
The upshot is that the Second Amendment, insofar as it protects weapons for militia service, protects weapons of war specifically.
Precisely which weapons may be kept and borne for militia service will
change with time, as the technology changes, but it will be those
weapons best suited to military service while acting as a militiaman
that are most protected. Currently, unquestionably, the Miller decision
provides the strongest protection to the AR-15 rifle. This rifle, though
semi-automatic rather than fully automatic, is close enough to the
military’s standard issue rifle that many parts can be interchanged with
military stores should the militia and the regular military need to
interoperate. Likewise, its correct and accurate use will be so familiar
to American soldiers and Marines that any of them could serve as
trainers to bring members of the militia up to speed quickly in order to
repel an invasion or end an insurrection.
Thus, laws banning possession of AR-15s for militia service are
unconstitutional. Note that militia service starts, by the black letter
law, at 17 years of age. Very many extant laws prohibit even possession
of AR-15s by those under 18 years of age.
III. On the need for a theory: problems with the law
The existence of those presumably unconstitutional laws is not the
only problem with the law as it stands. A law that only considers the
suppression of insurrections cannot grasp the full truth about the
American militia, as the militia itself arose in an insurrection. The
laws that allow governors or presidents to appoint the officers of the
militia may be fine for cases in which the citizens agree to serve to
suppress an insurrection. It cannot be the right way to appoint officers
for cases such as the Declaration of Independence describes, as a
tyrannical power will never call out the militia against itself, nor
appoint officers fit for the cause of “altering or abolishing” such a
power. We need a theory that captures the full array of cases in which
the militia can be used.
The distinction between able-bodied males and females is probably
untenable under our current understanding of equality of rights between
the sexes. Since the Second Amendment per Miller entails a
right to keep and bear weapons of war, the current black letter
description of the militia would appear to create an inequality of
rights for men and women. This is a problem that needs to be addressed
as well.
Likewise, the exclusion of citizens over the age of 45 (for the
Federal militia, at least) appears to be improper. The Veterans Exempt,
whose flag heads this article, were in their sixties when they
volunteered to fight again for the liberty of the American People. The Miller standard would also seem then to create an inequality of rights for older vs. younger Americans, which is improper.
Finally, the formalized command structure that the black letter law
describes cannot be the only proper one. There will be cases, such as on
Flight 93, when a citizens militia has to stand up without receiving
formal orders. This can happen for a number of reasons. We need a theory
that explains how and when it can happen, and what steps should exist
to regulate this to prevent its misuse.
IV. Preamble to the theory: the militia is right and proper
It is necessary to begin by rebutting the argument, current in
American politics, that the militia is improper — some even go so far as
to say that it is ‘a tool of white supremacy.’
The Security Studies Group rejects all forms of supremacism, but also
considers this particular claim to be ridiculous. The militia includes
all Americans, and arms them against tyranny. In its revolutionary role
the militia is, indeed, the final appeal against tyranny to include
being subject to supremacist rule.
In its more common role of supporting governing institutions rather
than replacing them, the militia likewise upholds a common peace and
lawful order that is beneficial to all Americans. The burning of city
centers does not benefit minority groups in America, and in fact
disproportionately harms them as they disproportionately live there.
Rioting and looting cause harms that can last for decades.
Family owned businesses, more frequently black or immigrant families in
city centers, often never recover from the destruction. These acts of
instability are a direct assault on the generational wealth of our
fellow citizens, black and otherwise.
Similarly, supporting the police does not entail supporting anything
like ‘white power.’ Police tend to be drawn from the community that they
police, and tend to reflect
that community’s diversity. There have been strong initiatives for
decades to further that diversity, especially at the top: just to name
four, Atlanta, Charlotte, Philadelphia, and Seattle all entered this
period of riots with black female police chiefs.
The militia thus has a proper role to play in a just society, and an
even more proper and necessary role to play in an unjust one.
V: The Citizen and the Militia
As discussed in “A Theory of Citizenship,”
citizens have a tremendous power that no other officers of the state
have. The citizens alone can decide when to dissolve the Constitution,
acting either through their delegates at a constitutional convention, or
through the power the Declaration of Independence proclaims. No one may
dissolve the United States against their will nor without their
consent.
This power to decide to set aside the laws extends to the citizen as
juror. Only citizens may be jurors, and as jurors they may simply refuse
to convict someone who is charged with a crime. They may do so because
they truly believe that person to be innocent, because they believe the
law is unjust, or for any other reason. If no jury will convict a
person, that person’s actions are approved as acceptable and he or she
is released.
The militia is the vehicle for invoking the power to dissolve the
government by force, which is a power the citizenry retains inalienably
per the Declaration of Independence. Likewise, the militia is one of the
final vehicles for protecting an upholding a state the citizens
continue to approve of against insurrection or invasion. The citizen is
the officer of the state that holds the final say on both of these
matters, and therefore the militia properly belongs to them.
All citizens must therefore have at least a right, if not a duty, to
serve in the militia. It cannot be limited to only men, extended to
women only if they enroll in the National Guard, nor can it exclude
older American citizens. In cases of invasion or insurrection against a
just government, it can certainly exclude enemies. This means those who
have taken up arms against the state, or those who have provided aid and
comfort to insurgents or invaders: traitors, in a word, per the
Constitutional definition. When taking up arms to replace an unjust
government, it is the state that has betrayed the bond.
The Federal or state militias may have black letter regulations that
they abide by, but when we speak of “the militia,” it belongs to the
citizens. They must retain the right to call it up regardless of any
government orders, and they have a right to serve in it if they choose.
VI: Calling Up the Militia
Nevertheless, for the ordinary purpose of supporting a government
that continues to enjoy the approval of the citizenry, having ordinary
citizens call up a militia is pragmatically the worst method. It may be
done as necessary, morally speaking, but when possible there are several
better options. I list them in order or pragmatic preference.
A Sheriff Deputizing a Militia. We usually refer to a
sheriff’s deputizing of citizens as a “posse,” rather than a “militia,”
because the sheriff is a county-level officer. The phrase “posse
comitatus” means roughly ‘power of the county.’ A ‘comitatus’ is
properly a mounted war band of feudal warriors supporting their lord,
from which the title ‘Count’ and the designation ‘county’ arise.
The phrase “posse comitatus” also refers to a Federal law limiting
the use of military force for law-enforcement. The government may use
the military and the militia to enforce Federal laws — the
constitutional language lists ‘enforcing the laws of the Union’ as the
first business of the militia — but there is a longstanding preference
for using police rather that military units. The sheriff is thus the
best choice because his deputizing of citizens retains regular order. As
much as possible, the regular order of law is to be preferred if the
idea is to end an insurrection, just because the desired end of the
process is the restoration of law and order. Departing from it as little
as possible makes that end easier to attain.
In addition, because the sheriff is a local official, he or she
probably knows which citizens are best suited to serve. As Sun Tzu
notes, victory is most easily obtained when you know both yourself and
your enemy. Unlike a distant official who is calling up forces with
broad strokes, the sheriff can appoint officers whom he or she knows to
be good citizens with good judgment. This might include members of the
local fire department, with whom the deputies work regularly, for
example. This personal knowledge will be most likely to ensure that the
deputized citizens help resolve problems rather than causing new ones.
If the Sheriff starts now, he or she can even gather together a picked
group of citizens and train them in case it comes up — a true ‘well
regulated’ militia.
A side benefit is that as deputies, members of the posse/militia will
enjoy the same qualified immunity as police officers. This will allow
them to operate with a degree of safety from legal issues arising from
their performance under arms.
Governors calling State-level militia. There will be
cases when ordinary law enforcement, even with deputized citizens, are
inadequate. Governors have the power to call out the National Guard,
which is organized and trained for the purpose. Some governors also have
an additional state militia force that performs at least occasional
training in disaster relief and such.
In extreme cases, the states do retain the power to tap the general
militia. Black letter law at the state level has often attempted to
obscure this, as the preference for professional forces among
professional politicians was very strong during the last century.
Nevertheless, the power pre-exists the constitutions of the United
States and the several states, and can be called upon if it must be.
As agents of the state, militia also enjoy substantial legal immunity.
The Insurrection Act and Federal militia. The clear
exception to the “posse comitatus” law is the Insurrection Act, which
allows the President of the United States to use military force to
restore order under certain circumstances. Because the state militia and
the Federal militia entail the same citizens, this can also allow the
President to seize control of a state militia or National Guard that is
being misused by a bad governor (as happened during the school
desegregation crisis).
This is usually less pragmatic because the Federal government is more
distant from the problems, and thus less knowledgeable about them.
Likewise, it is a substantial disruption of regular order, which means
that there is a larger distance to travel if the goal is to restore
regular law and order. Nevertheless, if local or state governments are
refusing to enforce the law, are violating the rights of the citizenry,
or are refusing to defend the rights of the citizenry, this can be
appropriate.
Federal militia actions also enjoy substantial immunity.
Ordinary Citizens. Citizens always have a right to
self-defense, as well as the right to defend another from death or
grievous bodily harm. That is the ordinary, individual right, not the
militia power. The power of citizens to constitute themselves into a
military force is inalienable, as discussed above. It will be
practically necessary only under a few circumstances. The first and
least likely is the Declaration of Independence case.
Much more likely is when citizens come under attack by terrorists,
insurrectionists, rioters, arsonists, or looters. In that case citizens
are very likely to be the only force capable of responding in defense of
the common peace and lawful order at least for a short time. In the
recent crisis, however, we have seen several occasions when the police
force vanished from afflicted areas of cities for the whole night or
longer. Citizens who are left to themselves by a failure of state and
local power have every right to defend the common peace and lawful order
against those who would destroy it.
Ordinary citizens who decide to call themselves or each other up as
militia enjoy no immunity for their actions. They are formally held to
the law. For those who suggest that police should be stripped of
qualified immunity, the citizen-called militia thus offers an option
which actually has a higher degree of legal accountability. They can be
held strictly to ordinary law, even though they are likely to be acting
in extraordinary circumstances.
Note that this may mean that citizens have to defend each other with
the jury function. Ordinary self-defense law often does not permit the
use of lethal force to defend property. When business owners are facing
arsonists or looters and a police response is absent, however, more than
private property is at stake. Should a prosecutor fail to recognize
that and bring charges against citizens who use their militia function
in this way, other citizens as jurors have the duty to consider whether
the state can rightly enforce its laws against the people who defended
what the state abandoned. If jurors consider that their fellow citizens
used good judgment and reasonable force in the face of the collapse of
ordinary law, they should approve the action by acquitting the citizens.
This in turn proves to be the major check on the misuse of the
militia power by ordinary citizens. The case will end up being put
before a jury of their peers, and thus subject to a ruling by a broader
body of citizens as to whether they did well or badly. If they did
badly, the jury is free to convict them according to ordinary law. If
they did well, the jury is free to consider that ordinary law had
temporarily failed, and to understand that they acted as good citizens
in preventing arson or looting, rioting or insurrection.
Citizens who agree with the militia’s actions but are not on the jury
should be encouraged to donate to the legal defense fund. Most charges
in America end in plea bargains, not trials. If the citizen militia is
to be protected by juries that approve its actions, the members must be
able to afford to go to trial before a jury.
VII. The Role of the Militia in the Current Crisis
The current crisis is marked by different levels of government
striving against each other. For example, state troopers in Oregon were
unable to obtain cooperation from the district attorney in Portland
toward prosecuting the crimes for which the troopers were making
arrests. The city was actively shielding the lawbreakers from the state.
In order to make their arrests effective, the troopers became deputized
as US Deputy Marshals, so that they could bring charges to a US
Attorney instead. Citizens in the meanwhile have been left exposed to
nightly riots that prosecutors have declined to stop. This basic failure
of the government is the kind of thing that can require a citizen
response.
Our crisis has also been marked by police abandoning neighborhoods,
so that citizens were left exposed to rioting, arson, and looting.
Police agencies are often resigning or retiring en masse,
leaving citizens and neighborhoods unprotected. Other cities, like
Atlanta, have seen a troubled prosecutor level such absurd charges
against police that the officers are frankly afraid to do their jobs.
This, too, leaves the citizen unprotected.
Though it has so far affected only certain cities, where prosecutors
are friendly to the rioters, there is a basic threat to the common peace
and lawful order that arises from these failures of government. The
power to restore order ultimately lies, however, with the citizenry. As
the Second Amendment says, the militia is necessary to the security of a
free state. As citizens we have every right to put things back in
order.
We have also the power to do so, provided that we act in concert. We
have the numbers, the arms, and if we learn to act as jurors and citizen
donors to legal defense funds, we have the means to ensure that proper
accountability is maintained. Those who do badly will be punished, but
those who do well can be defended by their fellow citizens.
VIII. Conclusion
A proper theory of the militia requires us to recognize that it has
both the revolutionary function and also the function of sustaining
governments of which the citizenry continues to approve. Both of these
functions are defended and enshrined in our founding documents and
compact, though only one of them is fully reflected in our laws and our
jurisprudence. The right theory should embrace both.
The theory offered here is grounded in the theory of citizenship in
which the citizenry are the officers of the American republic who
jointly exercise the sovereign function. That theory is in turn grounded
in the language of the Declaration of Independence, itself grounded —
so it says — on the will of the Creator. That will is that we should
enjoy equality of our inalienable rights. Governments are instituted by
their citizens to defend those rights. Should a government become
destructive to those rights, it is the right of the people — the
citizenry — to alter or to abolish it. The right to take up arms, on
their own decision, is thus inherent in the citizenry.
Yet governments are not always destructive to the rights of the
people. Hopefully, in fact, the government will take its mission
seriously most of the time. In such a case, the people also have every
right to insist on not having their approved system of government stolen
from them. It cannot rightfully be taken from them by invasion, nor
conquest, nor by insurrection. The citizenry has every right to stand up
for their system of government if they want to continue to enjoy it.
The right to defend their country, civilization, and values thus also is
inherent in the citizenry. They do not need anyone’s permission, though
each citizen must subject his or her actions to the approval of his or
her fellows.
The militia is simply what we call them as a body when they do
perform these military functions. In the second case, though the militia
can (and sometimes must) be called by the citizens on their own
authority, it is more wisely called by appropriate officers. It
functions best when it trains in advance, and when the citizenry has
been taught to view it as a natural function of their office as
citizens.
Ultimately, while the professionalization of the use of force has
advantages, the militia remains just as described in the Second
Amendment: necessary. It is necessary because the citizens
cannot exercise their rights without having the option of functioning as
a militia. It is necessary because government officials sometimes turn
tyrannous, and even if they do not, sometimes turn on each other so that
the state or the law temporarily fails. It is necessary because,
finally, the citizen is the only officer of the state certain to be
present for terrorist attacks.
For all these reasons, I believe the theory of the militia presented
here to be true and correct. It is functional and sufficient for the
current crisis, provided that it becomes widely understood. I think it
also captures the history, and will serve as a fit guide for the future.
