On the Militia Part 1

by D. McKenzie Smith
[email protected]

Special to L. Neil Smith’s The Libertarian Enterprise

This article will explore the subject of who controls the country. It will be a lesson in the Constitution and fundamentals of freedom. Most people have no concept of their own history. This is largely the responsibility of the public school systems and the major media. This ignorance is intentional. We will have to go through a fair amount of basics before looking at any specifics.

I have been a history student and a student of legal history in particular for well over four decades. I have also been a Corpsman in the Army, a Red Cross instructor of Basic and Advanced First Aid, and an NRA firearms Safety Instructor, aside from working in several professions, from managing high rise apartment buildings to precision manufacture of printing machinery.

One of our first tasks is to define some terms that people have come to misunderstand.

The United States was created as a Republic. The quick proof of that comes from the National Anthem, “The Battle Hymn of the Republic”, from the pledge of allegiance to the flag, “…and to the Republic for which it stands…”, and from the Constitution itself. The Constitution guarantees a ‘republican’ form of government in Article IV, Section 4.

So why do people think the U. S. is, or is supposed to be, a democracy? Because that is what lots of uninformed people and liars say it is.

The outstanding attribute of a Republic is that it guarantees to every individual and to any minority that their natural rights may not be interfered with. In fact, the Declaration of Independence charges government with the task of protecting rights. This means that, if there is a right in usage or recognized by the courts, the government must defend those rights against any encroachments.

In a democracy, on the other hand, the majority makes the rules. If 51% of the people decide to make private property into State property, or to force everyone to work on their birthday, that becomes the law of the land. There is no protection for the individual or for any minority.

The founders of the U. S. called democracy ‘mobocracy’, and considered it to be completely unstable. Benjamin Franklin compared democracy to two wolves and a sheep, discussing what was on the menu for dinner.

Another term most people have been miseduacated on is ‘rights’ There are basically two kinds of rights: natural and civil.

Natural rights are a part of being human. The founders considered natural rights to be given to people by God Himself. Samuel Adams put it exactly that way, “You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the universe.” The government they fought our war of independence against did not recognize, much less protect, these rights. According to the Declaration of Independence, these are the rights that governments were created to protect.

It is natural rights that the government may not alter or interfere with. This maxim has been confirmed many times over the centuries. Miranda v Arizona, 384 US 436 is a comparatively recent (1966) acknowledgment of that fact. It states, “Where rights secured by the constitution are involved, there can be no rule making or legislation which would abrogate [rights].” That’s pretty clear. If there is a natural right, the government may not make any ‘law’, rule, regulation or otherwise that would interfere with the right.

Civil rights, on the other hand, are created by government. They are government ‘privileges’, and therefore not real ‘rights’ at all. The universal understanding of such things is that the creator of something controls that thing. If government created a ‘right’, is may control, regulate, condition or remove that ‘right’ if it wishes.

The difference is quite clear, once one recognizes the origin of a ‘right’. In the case of natural rights, the government, as the servant of the people, is tasked with protecting us in the enjoyment of our natural rights. That same government is not allowed to interfere with any natural right. Civil ‘rights’ may be changed or removed at any time.

So, when someone talks about regulating a right or removing it entirely, they are either talking about a civil ‘right’, or they are talking treason: violation of the Constitution.

Here’s another important issue that most people have never heard expressed or explained.

The North American colonies were originally created by people seeking either religious freedom or economic freedom, or both. The government in Britain at the time also used the colonies as a place to send ‘undesirables’. We were British subjects who had some rights that had been fought for over centuries. The king and Parliament basically left the colonies alone, until they became richer and more productive.

Then ‘our’ government began managing us as assets. We had been largely left to govern ourselves for a hundred and fifty years, and resented being controlled or taxed without our input into the process. The ‘children’ had grown up.

What we ‘colonists’ resented and resisted was not taxation. It was ‘taxation without representation’. When the colonies resisted being regulated without any say in the matter, King and Parliament did what most governments do; they applied force. We colonists fought off the most powerful military in the world at the time. Our revolution was against ‘our own government’!

The ‘take away’ from this little bit of our history is that free people, or people who believe they are and ought to be free, will resist being treated like children or property.

After fighting the war of independence, the founders were not about to create another powerful central government. Keep that fact in mind. It is pivotal. The men who formed the new union through the Constitution made it quite clear that they were creating a federal government with very few, very limited powers.

Remember also that, after that war, the States were separate nations with all the authorities of thirteen fully fledged nations. They also had no intention of giving up all authority to any new central government.

Article I, Section 8 of the Constitution is the list of the powers ‘We the people…’ and the States granted to the new national government.

The Bill of Rights is a statement of things the feds must do or may not do. The Second Amendment even uses the term ‘infringed’, which means the federal power is not allowed to touch upon the subject, much less materially interfere with it.

Of the ten items in the Bill of Rights, the last two make this concept absolutely clear. Powers (authorities) not granted to the federal government were retained by the States and the People.

The courts have agreed with these principles many times. An example is, “The government of the United States is one of delegated powers alone.” (U. S. v Cruickshank, 92 US 542)

Another concept that people are not educated in is ‘sovereignty’. That means ownership and control. Sovereigns rule; subjects obey.

As noted above, after the war for independence, the States were ‘sovereign’ over their internal and external operations.

As far as their personal lives were concerned, the People were sovereign. Consider this early ruling on the matter. “The people of this State, as the successors of its former sovereign (King George III) are entitled to all the rights formerly belonging to the king.” (Lansing v Smith, 4 Wend 9, New York) Many other courts have restated that maxim over the years. One stated that sovereignty remains with the people. (Yick Wo v Hopkins, 118 US 356)

Many of the State constitutions clearly mandate that the people are the owners of government; not the other way around. Pennsylvania is one good example. “All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advance of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.” (emphasis added)

West Virginia’s Constitution agrees in its section 3.3; Rights Reserved to the People. Virtually all the State Constitutions carry similar statements. The federal government received all its powers from the People and the States. I will state the maxim again for emphasis: neither the States nor the People intended to give the federal government much power.

Literally all the founders intended the Constitution to limit what the federal government they were creating could do.

Our first President, George Washington, explained what governments are with this statement, “Government is not eloquence. It is not reason – it is force! Like fire it is a dangerous servant and a fearful master.” Bottom line: governments are force. And the founders intended to prevent much of that force at the federal level.

Thomas Jefferson put it this way, “Let no more be heard of confidence in man (humans in powerful positions), but bind him down from mischief by the chains of the Constitution.”

Many people are of the mistaken opinion that, if something is made’ law’, it must be obeyed. The Constitution says that the government may not make laws that violate rights.

American Jurisprudence is a compilation and simplification of tons of legal rulings that explain or define ‘laws’. Here is what Am Jur says about unconstitutional ‘laws’.

“The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, and in legal contemplation is as inoperative as if it had never been passed…”

“Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no act performed under it. No one is bound to obey an unconstitutional law and no courts are bound to enforce it, because only the valid legislative intent becomes the law to be enforced by the courts.” (11th Am Jur, Constitutional Law Section 148, p. 827)

Abraham Lincoln, though he often did the opposite of what he said, made some accurate statements on sovereignty and power. He said, “Our safety, our liberty, depends upon preserving the Constitution as our fathers made it inviolate. The people of the United States are the rightful masters of both the Congress and the courts – not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.” One should ask, how would a people overthrow a tyrant with lots of power, unless the people had greater power, and were not afraid to use it?

Many of the States included statements of supremacy in their State Constitutions. Here is one example. “Right of Revolution: Government being instituted for the common benefit, protection, and security of the whole community, and not for the, interests or emoluments of any one man, family or class of men; therefore, whenever the ends of government are perverted, and the public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to, reform the old, or establish a new government. The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish and destructive of the good and happiness of mankind.” (Article X of the Constitution of New Hampshire) Another is from Tennessee, which says largely the same thing.

The common sense question must be asked, ‘How can people control ‘their servants’ in government, if they have no power to control anything, because they have been disarmed?’ Those with the guns make the rules. Everyone else just hopes the ones in control will be good guys.

The Germans found out the hard way that slick talkers like Hitler had no real concern for the people. Under the Nazis, if the German people did not do as they were told, they were thrown into the concentration camps. Stalin and Mao simply killed off any dissidents. Most other governments have been less ‘unkind’, but still control what people can do.

One thing the founders feared and intended to prevent was federal control of an army. They set up the militia system instead.

Alexander Hamilton noted, in one of ‘The Federalist Papers, “..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 [the army] in discipline and use of arms, who stand ready to defend their own rights and those of their fellow citizens.”(The Federalist Papers, Alexander Hamilton, p. 210)

Noah Webster, another of the founders agreed, making this statement, “The supreme power in America cannot enforce unjust laws by the sword [force]; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.”

The militia was created to protect the People and the States from the federal government.

If the federal government needed troops to repel an invader, they could call upon the States for manpower. If the governors of the States agreed, they could send troops. If they did not accept the federal ‘reasons’, they could and did refuse to allow their militia troops to be used in a federal army. During the War of 1812, most of New England refused to let the federal government have their militias, because the feds planned to invade Canada. The States refused to have their troops involved in invading ‘a foreign nation’. Several States actually gathered for a convention it Hartford to discuss secession from the union, if the federal government began involving them in ‘foreign wars’.

Art. I, sect. 8, para. 12 makes it abundantly clear that the federal power was not to keep up an army of its own. Armies controlled by large central governments have historically been used against the local and regional governments as well as against the people.

But the federal government now has all the conventional military power under its direct control. This includes the Army, Navy, Marines, Coast Guard, Reserves and the ‘National Guard’. Yes, even the ‘Guard’ has been mislabeled as the militia. For one thing, it is not under the control of the State.

When Reagan was President, he took some bad advice, and ordered Guard units to Nicaragua for ‘summer training’. Several governors noted that the Guard was (supposedly) for use only within the U. S. and refused to allow State troops to go. But the President threatened to arrest several Governors for disobeying him, so they relented and let the troops go outside the country. This is one more example of usurpation by the federal government: the taking of power it was never granted.

Further, the U. S. Senate noted a few years ago that the ‘National Guard’ consists of federal troops. We have been told that the “Guard” is another name for the militia. But that was another lie. It has nothing to do with the militia. “That the National Guard is not the militia referred to in the Second Amendment is even more clear today. Congress had organized the National Guard under its power to ‘raise and support armies’ and not its power to ‘Provide for organizing, arming and disciplining the militia’. The modern National Guard was specifically intended to avoid status as the Constitutional militia, a distinction recognized by 10 USC 311[a].” (Subcommittee on the Constitution of the Senate Judiciary Committee, 1982)

This statement proves both that the Congress understands what the real militia is, and that the Congress that created the ‘Guard’ knew it was violating the Constitution by creating one more permanent federal military force.

Next week: On the Militia Part 2, the Second Amendment

Copyright D. Mckenzie Smith, 2022.


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