L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 114, March 26, 2001
March Militia Madness
Are You Shirking Your Duty to Help Keep America Free?
by Vin Suprynowicz
Special to TLE
Given the number of unconstitutional enactments blithely put into force in this country in recent decades, the most common defense in any federal courtroom should be:
1) The Declaration of Independence instructs us that legitimate governments are instituted among men to "secure the unalienable Rights" with which we are "endowed by our Creator," among these being "life, liberty, and the pursuit of happiness" -- necessarily including an unalienable right to retain and profit from the fruits of our labors.
2) Following logically from this precedent, the U.S. Constitution creates a government of sharply limited powers, such powers being limited to those specifically listed.
3) The Ninth and 10th Amendments -- still part of the highest law of the land, superseding all subsequent enactments -- further assure us that the people have many rights "not enumerated" in the Constitution, and that "any powers not delegated to the United States by the Constitution" are reserved to the states or the people.
4) In his definitive 1803 ruling in the watershed case "Marbury vs. Madison," Chief Justice Marshall instructed us that any unconstitutional enactment must be treated as though it never existed.
5) Therefore, since the statute, regulation, ordinance, edict, or "interpretation of code" under which the defendant now stands accused, represents an attempt by the federal legislature and/or bureaucracy to meddle in an area where it has no constitutional authorization (trafficking in constitutionally protected firearms, trafficking in medicinal plant extracts, declining to "volunteer" to pay unconstitutional direct federal taxes or to participate in a federal retirement pension or "payroll withholdings" scheme; "money laundering" to facilitate such commerce, etc. etc. etc.)
6) These charges should be dismissed; and the defendant declared innocent.
The reason this widely appropriate and fully adequate defense is seldom heard, of course, is that the black-robed lawyers who today masquerade as "judges" in our court system will not permit such things to be spoken. Defense attorneys are actually threatened with jail if they so much as dare to advance such an argument, the rationale being that "We're only here to decide the facts of the case. If you want to argue unconstitutionality of the underlying statute, the time to do that is years from now at the appellate level, after the defendant is bankrupt, has lost his home and family, and has been infected with a fatal disease by being gang-raped in the prisons for a couple of years."
This is a lie, of course, and any judge who says such a thing should him (or her)self be indicted for violation of his oath of office (treason), and for depriving a citizen of his civil rights under color of law. If and only if unanimously convicted by a randomly selected jury, such judges should be stripped of their office for life, imprisoned, and -- in cases where such misconduct has had a particularly egregious effect on the life of an innocent defendant -- executed.
That's not going to happen any time soon, of course. So decadent has our nation become that our lawmakers laugh scornfully at the notion that there are any restrictions whatsoever on how much they can tax or what they can spend it on, while the cynical, ambitious lawyers who staff our prosecutors' offices would never dream of enforcing the Bill of Rights by indicting most of our sitting politician/judges for violating their oaths.
Does any constitutional safeguard remain? Actually, yes. Though the Constitution is primarily a bill of limitations on government action, it does create through strong implication a few duties for the citizen.
Since no fewer than three of the first 10 amendments deal with the right to a trial before a randomly selected citizen jury, there must obviously be some duty for citizens not only to serve on juries when called, but also to remain knowledgable about their duty to stand as a last line of defense for fellow citizens being railroaded under unconstitutional edicts.
One searches the writings of the founders in vain for the notion that jurors should "decide only the facts and not the law" -- in fact, constitutions of early states like Maryland specifically mention that jurors must be allowed to decide the law as well as the facts of the case. Nor will we find any mention of "runaway juries" or "rogue juries" to describe jurors who acquit despite a judge's instructions that the law gives them "no choice but to convict if you find that the defendant acted as charged" -- in fact, America's freedom of the press was born in New York's John Peter Zenger case, where the jury acquitted under just such circumstances.
Similarly, today's champions of tyranny -- and the victim disarmament which is a necessary condition for the advancement of any enduring tyranny -- have been busy for some years attempting to demonize the term "militia."
What does "militia" actually mean? Richard Henry Lee, who drafted the Second Amendment as well as the rest of the Bill of Rights, gave us a definitive answer in 1788: "A militia, when properly formed, are in fact the people themselves. ... The Constitution ought to secure a genuine [militia] and guard against a select militia, by providing that the militias shall always be kept well organized, armed, and disciplined, and include ... all men capable of bearing arms, and that all regulations tending to render this militia useless and defenseless, by establishing select corps of militia, or distinct bodies of military men not having permanent interests and attachments in the community [are] to be avoided. ... To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."
But mention "militia" in polite company today, and many folks -- having been fed regular doses of the aforementioned carefully crafted collectivist propaganda -- automatically think of some small band of racist skinhead kooks in Montana or Idaho, embracing the laughable racism of "The Turner Diaries" and preaching some deviant doctrine of white supremacy and racial separation.
Yet the arguments of these gun-grabbers quickly turn in on themselves, "as dogs upon their masters," in Shakespeare's phrase. They have long assured us -- despite the firm disagreement of such well-known left-wing legal scholars as Lawrence Tribe -- that the Second Amendment doesn't mean what is clearly says ("The right of the people to keep and bear Arms shall not be infringed.") Why? Because those of us who would honor our Constitution and do our duty to defend it (and the free country it created) supposedly ignore the introductory clause of the amendment, to wit: "A well regulated Militia being necessary to the security of a free State ..."
Well, what's the plain meaning of this clause? Note the use of the word "free." A well-practiced citizen militia is not necessary to the security of a police state, since police states have droves of uniformed bully boys goose-stepping about in fancy black uniforms and willing to follow the Imperator's orders to arrest and imprison anyone who refuses to Get With the Program.
What the founders meant by that "militia" which must be maintained as our main source of armed men for national defense, if we are to remain a free country, are companies of citizens like the farmers and tradesmen who picked up their rifles and swarmed to Saratoga in the fall of 1777 to ambush Gentleman Johnnie Burgoyne's foraging parties, eventually bringing the invading redcoat regulars to battle and defeating them under the ad hoc leadership of one of America's great combat heroes, New Haven storekeeper-turned-soldier Benedict Arnold (yes, I know he later messed up) -- thus guaranteeing the colonists' triumph by drawing France into the war on our side.
As Americans have a duty not merely to show up for jury duty but to understand their right and obligation to acquit any defendant on trial under an unconstitutional statute -- or any defendant who has clearly been refused his right to present a principled constitutional defense at trial -- so do Americans have a strongly implied obligation under the Second Amendment to stand ready to defend our freedoms (remember, "necessary to the security of a free state") by owning, maintaining and keeping in good practice with a firearm of "militia usefulness" -- that being, in this day and age, an M-16 or (preferably, in my opinion) a .308-caliber, M-14 combat rifle.
Now, there is a slight problem. The would-be tyrants on the Potomac have made it a federal crime for any American to build or import a military-style, select-fire M-14 or M-16 rifle for sale to a fellow citizen who does not wear a government uniform -- the exception being granted for members of precisely the kinds of "special militias" and "standing armies" which the founders feared.
This leaves only a limited supply of "pre-ban" M-14s and M-16s still circulating. The laws of supply and demand thus mean I'm going to pay more than $4,000 for my fully-automatic M-14 -- after I pay a $200 tax and submit myself to fingerprinting and other clearly unconstitutional indignities and "infringements" -- once I finally get enough saved up.
In the meantime, I can proudly declare myself a member of Nevada's unorganized constitutional militia, by dint of my ownership of the semi-automatic version of the military M-14 -- the semi-automatic civilian M-1A.
The M-16 (in the lighter .223 caliber) has a similarly more affordable semi-automatic civilian sister, the perfectly legal little AR-15 ... though fans of tyranny like Chuck Schumer and Dianne Feinstein and Ted Kennedy naturally seek to ban these slightly less useful militia weapons at every turn, lying and calling them "assault rifles" (an assault rifle must be capable of fully-automatic fire; these are not) and by -- get this -- trying to link them to "dangerous Militias" ... a word which originally defined precisely the kind of peaceful, armed citizens who might stand in the way of their plans for a massive, cradle-to-grave, welfare/police state!
(What do the massacres of the Armenian Turks in 1915, of the Ukrainian Kulaks under Stalin in the 1930s, of the Jews and Gypsies under Hitler in the 1940s, of the "landlords" under Mao and the "intellectuals" under Pol Pot all have in common? The victims were all disarmed, by law, first.)
Have you ever shirked your jury duty? Does it make you proud to know some fellow citizen who never harmed anyone may now be serving time because you couldn't be bothered to go stand as his last line of defense against a bad law or overzealous prosecution -- or, worse yet, because you followed some black-robed lawyer's "order" to convict, even though you couldn't for the life of you figure out who the defendant had hurt, and felt in your heart it was the overzealous cops, trampling our precious Bill of Rights to "build their case," who should really have been on trial?
And what about your obligation as a citizen to help maintain the militia, so "necessary to the security of a free state"? Have you bought into the hate-filled propaganda about "militia" being merely a synonym for racist rednecks? The absurdity that we "don't need militias any more; times have changed and the standing armies of the DEA and FBI and BATF and the National Guard" -- the guys who flew the helicopters that machine-gunned the babies and nursing mothers at Waco -- "can do the job just fine"?
Oh, there's a good excuse to spend the weekend on the couch, watching the game.
Be wary of any attempt to propagandize concepts and words which the founders considered vital to instruct us about our freedoms and the tools necessary to preserve them, turning them into "hate speech" terms of scorn and derision.
John F. Kennedy said we should "ask not what our country can do for us, but what we can do for our country." That can be a dangerous doctrine, if it leads us to forget that in America the state exists to protect the people and their liberties -- not the other way around.
But we do indeed have a few duties to our countrymen. Jury service is one. Owning a combat rifle is another. (No, you cannot "delegate" such a duty to the police or the National Guard, because your obligation to our progeny is precisely to own arms sufficient to discourage the police or the National Guard from ever getting too big for their britches.)
Have you shirked either of those duties, assuming "someone else will do it -- someone better trained. I can't be bothered, and besides -- what do I know?"
Sometimes, freedom requires a little investment, and a little work. If you can't afford a $1,500 M-1A, a WWII surplus Garand can be found for $500 ... or a WWI surplus Enfield for $250.
So far as I know, all firearm sales at the Cashman Field gun shows in Las Vegas are now subjected to a federal background check -- the back door to national firearms registration and eventual confiscation.
But Lou Fascio is running his big gun show at the Reno Hilton again April 6 through 8 -- no background checks or federal registration except those required by law for handguns sold by federally licensed gun dealers. Call 775-828-2350 for reservations, visit web site www.guntrade.com/bigrenoshow, or e-mail email@example.com.
Maybe I'll see you there.