Article 1, Section 8 of the US Constitution expressly gives Congress the Power over eighteen diverse areas of government. These areas include 1. to collect Taxes, Duties, Imposts and Excises, 3. to regulate Commerce, 4. to establish uniform Rule of Naturalization and Bankruptcies, 7. establish Post Offices and post Roads, and 18. to make all laws necessary and proper for carrying into execution all Powers vested by this Constitution in the Government of the United States.
I would imagine this would not come as much of a shock to anyone who is even cursorily interested in politics, watches television, reads a newspaper or gets their information from anywhere but the latest conspiracy-laden, Faux/Breitbarf/InfoWarts fever dream monster truck meme of the day.
Yet there are two enumerated powers, numbers 15 and 16, that normally would not be in the public eye absent unusual circumstances calling for a national discussion, debate and clarification, perhaps leading to a referendum. The issue? Militias.
Respectively,
15. “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”
16. “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
When it came to militias, it did not take long for Congress to act. In 1792 the legislative branch passed its first and second Militia Acts.When viewed in their entirety, the two laws vested in the President the power to call forth the Militia and reserved to the States respectively, the Authority of training the Militia according to the guidelines and regulations prescribed by Congress.
The second Militia Act is a bit more curious in scope as it delves into who is eligible for service in let’s call it a Federal/State sanctioned Military Militia. Or, as many States call it today, the National Guard.
In pertinent part, “That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this act.”
I left in the exceptions as they contain some logical inclusions, namely, post-officers, stage coach drivers, ferrymen and marine pilots, and wait for it…the Vice President, all judicial and executive officers, and the members of both Houses of Congress. Some things never change do they?
In the previous 5-25-2022 Communique we discussed an entirely different category of Militia, the paramilitary or non-military grade “irregulars”, “guerrillas”, “Squeal Team 6”, “hate groups” and finally, “domestic terrorists”.
They fancy themselves at a minimum to be “citizen soldiers” as in the last line of defense against tyrannical acts by authoritarian, despotic actors who threaten our core American freedoms in forms as diverse as wearing face masks during a pandemic, and teaching actual history.
Including and of no small impact, fostering “The Big Lie”, and failing to honor the legitimate results of a election and threatening the peaceful transfer of power through nothing short of an insurrection, the type of which our militia laws were designed to protect.
These “mobs” can be safely eliminated from the “well-regulated” category, unless you call brainwashing an adequate substitute for how to defend your country at times of crisis when you, yes, are the only active crisis to be found.
Admittedly, there are some grayish areas of what may constitute a Militia. We recently saw one of the more unusual, but effective militias of private citizens who are generally not members of an organized Militia, but are sanctioned by the government at times of need.
I speak of the historic Maritime Militias composed of fishermen who as members of the fishing industry, may be called on to defend its country’s local waters and borders in at? times. Recently, the Irish “fleet” sailed out to challenge Russian warships who ventured a bit too close during their training exercises.
As diplomats are want to say “Provocative!”
Yet, as We, the People watch the mounting tension grow as the violence continues to escalate, the so-called “originalist” decision of the unabashedly racist, homophobic, misogynist and religious zealot Scalia’s decision in the Heller case continues to promote a vision of 1776 Revolutionary America that simply isn’t true.
With all due respect to the deadheaded, his is a vision of Second Amendment as a fundamental right based on nothing more than a cherry-picking Ouija Board that says, well, anything Antonin wanted it to say.
I am not suggesting that every Founding Father was against common Militias. Virginia Governor Thomas Jefferson was a proponent as was Ethan Allen and his Green Mountain Boys. It is also true Benedict Arnold employed both the Connecticut and Massachusetts Militias, including during his infamous attack on Fort Ticonderoga.
But what about the Man? What did George Washington think about Militias? It is odd as it was not an issue George shied away from and in fact wrote and spoke about many times during his years as head of the Continental Army and as President.
In his letter, “From George Washington to John Hancock, 25 September 1776,” is one of his more famous statements comparing the advantages of building an army of professional, regular soldiers as opposed to relying on well, unreliable irregulars,
“To place any dependance upon Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestick life—unaccustomed to the din of Arms—totally unacquainted with every kind of Military skill, which being followed by a want of Confidence in themselves when opposed to Troops regularly traind —disciplined, and appointed—superior in knowledge, & superior in Arms, makes them timid, and ready to fly from their own Shadows.”
It is not as if Washington never expressed admiration for militias.“To Thomas Jefferson from George Washington, July 10, 1779,” Washington expressed the following sentiment,
“The Militia upon these occasions, considering their number and the sudden manner in which they assembled, behaved with great spirit.”
Yet in a circular sent meant for governors, including Jefferson, his true evaluation included a comparison between the pragmatist and the patriotic purist as the instigator of destined to fail from the start policies. Given our current situation, I would hope this uncanny and prescient insight would find its way pitting facts versus feelings into our current national debate.
“[W]e have frequently heard the behavior of the Militia extolled upon one & another occasion by men who judge only from the surface—by men who had particular views in misrepresenting—by visionary men, whose credulity easily swallows every vague story, in support of a favorite hypothesis. I solemnly declare I never was witness to a single instance, that can countenance an opinion of Militia or raw Troops being fit for the real business of fighting. I have found them useful as light Parties to skirmish in the woods—but incapable of making or sustaining a serious attack. This firmness is only acquired by habits of discipline and service.”
https://washingtonpapers.org/george-washington-thomas-jefferson-and-militias-in-republican-ideology/
Of which, the Oath Keepers, Three Percenters, and Proud Boys come to mind, have none.
When it came to action, the best example of President Washington’s use of the Second Amendment was on August 7, 1794 to condemn violence as associated the Whiskey Rebellion as treasonous acts amounting to levying war against the young and unstable United States.
In all, Washington called up somewhere in the area of 13,000 well-trained and loyal to the Union and under state guidance militia members from Virginia, Maryland, New Jersey, Pennsylvania and New Jersey.
When the combined militia reached the heart of Rebellion, they did not fight as the Rebellion had dissolved with the rebel leaders in hiding. In the aftermath, very few rebels were arrested, even fewer convicted only to be pardoned by President Washington or his predecessor John Adams.
Once order was restored, Washington sent a letter to General Henry Lee thanking him and his troops for preserving blessings of that Revolution which, “at much expense of blood & treasure, constituted us a free and independent nation.”
In other words, Washington sent what he believed to be “well-regulated militias necessary to the security of a free State.” His clear intention was to protect, not destroy our nascent country.
If Washington did, as many today have erroneously suggested, sent out a small band of armed misfits and malcontents to combat tyranny and overthrow our Democratic Republic for the purpose of lowering taxes on Whiskey, good luck with that.
And please don’t send me any memes supposedly contemporaneously written during Washington’s presidency. That’s getting really old.
That's what Militias are all about, Charlie Brown. Thoughts?
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Kudos again for pointing out that what we need is a “well-regulated militias necessary to the security of a free State.” We are not looking for a modification of the Second Amendment so that every citizen can carry weapons of mass destruction or nuclear arms to kill our children.