Talk:Constitutional militia movement/draft

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[edit] Notes

[edit] Legal and historical rationale

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U.S. activists cite law and history, especially from the Founding Era, to explain and justify their aims and agendas:

The U.S. Constitution, Art. I Sec. 8 Cl. 15 & 16, and the Second Amendment specifically provide for a "general" militia system rather than a standing army or professional police, which some of the Founding Fathers opposed as "select" militia not representative of the communities they might have the duty to serve.[1][2][3][4][5][6][7][8][9]

Often cited are statements by the Founding Fathers:

  • George Mason: "I ask, sir, what is the militia? It is the whole people, except for a few public officials."[10]
  • Richard Henry Lee, Senator, First Congress: "A militia, when properly formed, are in fact the people themselves... and include all men capable of bearing arms."[11]

A history professor has argued that the right to keep and bear arms[12] evolved from a duty[13] to be armed. Several historians have argued that this duty was as deterrence against crime[2] and governmental tyranny.[14][3] As militia units they train in the proper and safe use of firearms, so that they may be effective if called upon by constitutionally compliant officials to perform that duty, or, if no official fulfills that duty, to elect their own officers, as was done in the colonial and early republic era.[15] [16] [Quotation needed from source][17] [Quotation needed from source][18]

In Anglo-American tradition, every able-bodied person has the moral duty,[2] and, by law,[19] a subset of them a legal duty, to respond to call-ups to respond to threats, issued by any person aware of a threat, to any one or more persons who may be available in the area. Call-ups enforceable by fines or imprisonment may be issued by the sheriff of their county, governor of their state, or the president of the United States.[20] The threats for which the president may issue a call-up extend only to "to execute the Laws of the Union, suppress Insurrections and repel Invasions". However, state and local officials may also issue call-ups for natural disasters, such as fires, floods, earthquakes, or storms like Hurricane Katrina. Any of these officials, subject to law, may also issue call-ups for organization and training.

In recent years[21] there have also been increasing calls to organize, train, and equip for such threats as terrorism, drug trafficking, and border control.[22] This has sometimes taken the form of focused operations like neighborhood watch, or efforts like the Minuteman Project that first report violations and usually refrain from direct enforcement, as a way to embarrass the government into doing a better job. Others make a broader call for constitutional compliance in general, especially in the courts, which many see as engaged in judicial tyranny.[23][24] [25]

Some historians argue that the U.S. Constitution presupposed that militia would be the mainstay of defense and law enforcement, and this was the prevailing order in the decades surrounding the adoption of the Constitution.[26] Another supports the concept that the jury is a kind of militia.[27]

Mack Tanner, "Extreme Prejudice," Reason Magazine, July 1995, 43-50, wrote about the movement:[28]

To understand what the militia movement is talking about, one needs to understand a bit of federal law. While most of us never think about it--or even know about it--every American male spends 28 years as a member of the militia, whether he wants to belong or not. United States Code, Title 10, Section 311, describes the militia of the United States as consisting of all able-bodied males at least 17 years of age and under 45 years of age. If we are not members of the National Guard, then we are, by law, members of the unorganized militia who can be called to service at any time by the appropriate legal authority. Any two or more American men can therefore claim to be an association of members of the unorganized militia, just as they might be an association of voters, taxpayers, parents or citizens.

On page 44, Tanner describes activists as

The armed, but legitimate, political activists. This is a new phenomenon, at least in this century. These are socially successful people who respect and obey the law, but who are organizing and arming themselves because they fear they may be attacked by agencies of their own government.

[edit] Etymology

The term "militia" is derived from Latin roots:

  • miles /miːles/ : soldier[29]
  • -itia /iːtia/ : a state, activity, quality or condition of being[30][31]
  • militia /mil:iːtia/: Military service[32]

In English, the word "militia" dates to at least 1590 when it was recorded in a book by Sir John Smythe, Certain Discourses Military with the meanings: a military force; a body of soldiers and military affairs; a body of military discipline[33]

The original meaning of the Latin word is "military activity", or, since the ancient Romans had the same people fight crime or respond to disasters, "defense activity". In the idiom of English during the 18th century, the same word would often be used for an activity and for those who engage in it, so "militia" could mean either defense activity or those who engage in it, whether as individuals or in concert with others.[34][Quotation needed from source]

Some confusion arises from the English idiom, which goes back to Anglo-Saxon and got carried over to the adoption of foreign words, of using the same word for an activity and for those engaged in it, with the meaning as activity originally being primary, but slipping into more frequent use of the word in its secondary sense of those engaged in it. Examples of such words include service, assembly, movement, wedding, viking, congregation, aggregation, delegation, march, ministry, court, jury, and hunt.

Most of the leading Founding Fathers were Latin-literate, so they would have known the original Latin meaning, and used it when they read or wrote in Latin.[35][36]

We can see in their writings and speeches that they often used the word prepended with an article, “a” or “the”, to refer to those engaged in the activity, but at other times they use it without the article. Modern readers are likely to understand that as using the word as its own plural, but the plural of militia is militiae, and if the Latin-literate Founders had meant it that way, they would have said militiae. They were, in that usage, meaning the activity.

Activists consider this distinction is important because if the word means only those engaged in the activity, and is always plural, then militia can only consist of two or more persons, and never just one. However, understood as an activity, then is it clear that one individual can engage in militia, and it follows that self-defense is a militia call-up issued to oneself, to which oneself responds, to enforce the law. When all self-defense is cast into an act of law enforcement, then the legal framework is transformed into what the militia concept requires.

This meaning also comes up in discussing other countries with a militia tradition, especially Switzerland, which the Founders viewed as a model for the kind of militia system they wanted to establish. The militia clauses of the Swiss Federal Constitution are contained in Art. 59, where it is referred to as "military service" (English), "Militärdienst" (German), "service militaire" (French), "servizio militare" (Italian), "servetsch militar" (Romansch), and translated into "servicio militar" (Spanish and Portuguese), all synonyms for "militia" in Latin.

These discuss militia and Switzerland:

Armée Suisse. This book is issued annually by the Swiss government and is sold in most book stores. It contains all things that a citizen-soldier in Switzerland must know. It discusses their rights and privileges, strategy and tactics, equipment and organization and the role of the individual citizen-soldier. The photographs of current equipment are interesting and the accompanying text is fully descriptive. The 1988 edition contains 372 pages of fine print text. Soldiers must buy this booklet out of their own funds.

Some leading activists urge the use of the word consistently only as an activity, asking other activists to test every usage by substituting “defense activity” in the sentence to see if the grammar works, so that the public will also begin using it that way.

[edit] Historical antecedents

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Please improve the article by adding references. See the talk page for details. (November 2007)

Movements to establish or strengthen militia and to enforce the "constitution" of the time go back to ancient times, in many countries.

The protests against British abuses of the rights of the American colonists as "Englishmen" involved militia from the outset, and a movement to strengthen it in preparation for conflict with British forces. This movement continued through the American Revolution, led by the Founding Fathers, many of whom were militia commanders.

A movement to strengthen militia against the threat of Indians, pirates, and encroachments by British, French, and Spanish forces from neighboring territories rose to a peak for the War of 1812.[37]

[edit] Movements outside the United States

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Please improve the article by adding references. See the talk page for details. (November 2007)

There have been at least two efforts outside the United States in the past that could reasonably be described as constitutional militia movements.[citation needed] The first English Civil War of 1642-46 can be characterized as such. (The militia was already in being for the second phase in 1648-49 and the third in 1649-51.) A prominent one was inspired by Scots like Andrew Fletcher around 1698,[38] but was dissipated by the financial turmoil that led to the 1707 Acts of Union.

There have also been reform movements that were depicted as (threatening) militia by their adversaries. One of these was the Levellers in England during about 1645-49, a faction of reformers that had been allied with Oliver Cromwell but split with him when he refused to make any of their demanded reforms. The leaders of the factions were militia, so it was to be expected that anything they might advocate would be perceived as backed by the possibility that they might resort to force, especially if any of their leaders, especially John Lilburne, were persecuted.

Another such reform movement in England that the established government saw as threatening was a network of groups, one of the more prominent being the Society for Constitutional Information, which advocated, during the 1794-99 timeframe, many of the same reforms that had been advocated by the Levellers. They were not composed, for the most part, of militia-trained persons, nor did they train to the use of arms during their attempts to hold a convention to agree on reform proposals, for which many of them were prosecuted for sedition and treason. However, the militia tradition in England was still strong enough that any reform movement could be seen as an incipient militia movement.

The key to both of these reform efforts is that they perceived that they were advancing constitutional principles that already existed in natural law, even if not yet in the written documents that comprised a kind of "constitution" for England.

[edit] Controversy

The controversy deepened in 1995 following the Oklahoma City bombing beginning with an appearance on CNN by former FBI agent Oliver "Buck" Revelle in which he pointed the finger of suspicion on the "militia movement". This was later amplified, after the arrest of Timothy McVeigh, by reports that McVeigh was a "member" of a "militia", without the corrections, that he had been ejected from the only militia meeting he had ever attended, receiving the same attention.[citation needed]

One of the key controversies has been over whether to aggregate almost all groups containing two or more persons with arms training to their use,[39] into a single "militia movement", or, because there many groups with diverse goals, agendas, and activities, to disaggregate them into multiple movements, based more on the way they self-identify than on the ways they may be characterized by outsiders or opponents. One FBI report, Project Megiddo, offered the "guideline: (1) a militia is a domestic organization with two or more members; (2) the organization must possess and use firearms; and (3) the organization must conduct or encourage paramilitary training." On the other hand, another FBI report[40] provided guidance for the meetings between FBI agents and militia activists beginning in May, 1995, in which the FBI differentiated among many kinds of armed groups and distinguished "constitutional militia", which would correspond to their "Category I" or perhaps "category II", and violence-prone groups, which they called "Category IV", with a "Category III" between "II" and "IV".

[edit] Further reading

 This article or section may contain original research or unverified claims.
Please improve the article by adding references. See the talk page for details. (November 2007)
  • Robert H. Churchill, Department of Humanities, University of Hartford:
  • "Shaking Their Guns in the Tyrant's Face": Guns, Violence, and Belonging Within the Constitutional Militia Movement, paper presented to the October 10, 2003, convention of the American Studies Association, proceedings distributed to attendees.
  • "Arming for the Last Battle: Secular and Religious Millennial Impulses within the Militia Movement", 1999 Annual Conference of the Center for Millennial Studies, Boston University, Boston, MA, November 9, 1999. Online copy
  • "Manly Firmness, the Duty of Resistance, and the Search for a Middle Way: Democratic Republicans Confront the Alien and Sedition Acts", 1999 Annual Meeting of the Society for Historians of the Early American Republic, Lexington, KY, July 17, 1999. Online copy
  • "Beyond the Narrative of 1995 - Recent Examinations of the American Far Right". Terrorism and Political Violence, Vol.13, No.4 (Winter 2001), pp.125–136. See Chip Berlet:
Reviewing Right-Wing Populism in America: Too Close for Comfort, Robert H. Churchill of the University of Hartford criticized Berlet and other authors writing about the right wing as lacking breadth and depth in their analyses, failing to make contact with significant figures in the movement and conduct significant research on the Internet, and for providing analyses of far right movements that proscribe as "racist" a broad range of conservative political ideologies that are "driven more by the association of the author with various civil rights organizations and leftist political activists outlined in the acknowledgments than by the primary evidence presented in the footnotes.
  • "Forum: Rethinking the Second Amendment: Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment". Law and History Review 25.1 (2007): 75 pars. 6 Nov. 2007 Online copy.
  • "Forum: Response: Once More unto the Breach, Dear Friends," Law and History Review 25.1 (2007): 27 pars. 6 Nov. 2007. Online copy
  • Gun Ownership in Early America: A Survey of Manuscript Militia Returns. The William and Mary Quarterly 60.3 (2003): 46 pars. 6 Nov. 2007 Online copy.
  • "Guns and the Politics of History", 29 Revs. Am. Hist. 329 (2001).
  • Also see his upcoming book.
  • Jonathan Karl, The Right to Bear Arms: The Rise of America's New Militias, HarperCollins, New York (1995) ISBN 0061010154.
  • James Biser Whisker, retired professor of political science, West Virginia University:
  • The Militia, by James B. Whisker, Edwin Mellen Pr. (1992) ISBN 0773495533. Online copy
  • The American Colonial Militia, 1606-1785], by James B. Whisker, Edwin Mellen Pr. (1997) ISBN 0773485201. Online copy
  • The Rise and Decline of the American Militia System, by James B. Whisker, Susquehanna University Press (1999) ISBN 094563692X
  • James B. Whisker, The Citizen-Soldier Under Federal and State Law, 94 W. Va. L. Rev. 947, 954-56 (1992). Describes the militia system that existed in the colonies prior to and during the revolution. At 952-54: As early as the seventh century, England had developed a militia system, requiring even the lowest class of freemen to maintain arms and be subject to a call for military duty. Id. Henry II enacted the first formal declaration of this principle with the "Assize of Arms" of 1181. The "Assize of Arms" required that every freeman provide his own arms, train periodically, and defend his country when called upon. Id. This system had in turn developed from the Roman use of citizen-soldiers during the period of the early Republic. At 954-55: If a militiaman could not afford an appropriate weapon for service, some colonies provided a credit system such that the government would furnish a weapon with a forgiving debt repayment plan, n.32. Online copy
  • The Right to Keep and Bear Arms, Report of the Subcommittee on the Constitution of the United States Senate, Ninety-Seventh Congress, Second Session, February 1982. ISBN 1581602545 Partial copy online
  • Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right, Harvard University Press (February 1, 1996) ISBN 0674893077. Ch. 1: "The right of citizens to be armed not only is unusual, but evolved in England in an unusual manner: it began as a duty."
  • Brian C. Brook, Federalizing the First Responders to Acts of Terrorism via the Militia Clauses, 54 Duke L. J. 999 (2005) Online copy
  • William E. Nelson, The Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence, 76 Mich. L. Rev. 893 (1978), ch. 23, 23. "The Jury and Consensus Government in Mid-Eighteenth-Century America".
  • Akhil Reed Amar, Second Thoughts: What the right to bear arms really means, The New Republic, July 12, 1999 issue. "Like the militia, the jury was a local body countering imperial power--summoned by the government but standing outside it, representing the people, collectively. Like jury service, militia participation was both a right and a duty of qualified voters who were regularly summoned to discharge their public obligations. Like the jury, the militia was composed of amateurs arrayed against, and designed to check, permanent and professional government officials (judges and prosecutors, in the case of the jury; a standing army in the case of the militia). Like the jury, the militia embodied collective political action rather than private pursuits."
  • Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 267-68 (1983). Reprinted as monograph ISBN 0911475249.
  • Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right, Independent Institute (March 1, 1994) ISBN 0945999380.
  • Stephen P. Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees, Greenwood Press ISBN 0313265399.
  • Stephen P. Halbrook, Swiss and the NAZIs: How the Alpine Republic Survived in the Shadow of the Third Reich, Casemate (May 2006) ISBN 1932033424. Revised version of Target Switzerland, Da Capo (December 1, 2003) ISBN 0306813254.
  • Stephen P. Halbrook, Tench Coxe and the right to keep and bear arms, 1787-1823, William & Mary School of Law] (1999) ASIN B0006RSW6G.
  • David B. Kopel, Supreme Court Gun Cases, Bloomfield Press (September 2, 2003) ISBN 1889632058.
  • Larry Pratt, Safeguarding Liberty: The Constitution and Citizens Militias, Legacy Communications (May 1, 1995) ISBN 188069218X.
  • Larry Pratt & Morgan Norval, The Militia in Twentieth Century America: A Symposium, Gun Owners Foundation (June 1985) ISBN 0317197959.
  • Clayton E. Cramer, For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms, Praeger Publishers (May 30, 1994) ISBN 0275949133.
  • U.S. Department of Justice, Statement on the Second Amendment to the United States Constitution, August 24, 2004. "the Militia Clauses, along with the structure of the Bill of Rights and the preface of the Second Amendment, all support the personal, individual right to keep and bear arms that the Amendment's operative text sets out."
  • Mack Tanner, "Extreme Prejudice," Reason Magazine, July 1995, 43-50. Discusses purposes of constitutional militia movement, without explicitly using "constitutional".
  • H. Richard Uviller, H. Richard Uviller, & William G. Merkel, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent, Duke University Press (January 2002) ISBN 0822330172.
  • William H. Riker, Soldiers of the States (1979) Describes how Congress created the National Guard to replace the previous state militia systems. The basic equipment the colonies expected militiamen to provide depended upon their service: infantrymen brought muskets with powder and shot, while cavalrymen brought their own horses and sabers, at 12.
  • Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5, 8 (1989). At 15 describes the colonial view that standing armies were acceptable only under extraordinary circumstances.
  • Ralph J. Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 Cath. U. L. Rev. 53, 56-57 (1966). Notes that the drafters of the Constitution would be unlikely to vote for any provisions likely to create a large professional army.
  • Akhil R. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1168 (1991).
  • Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America, Oxford University Press, USA (June 14, 2006) ISBN 0195147863. Argues that the Founders understood the right to bear arms as neither an individual nor a collective right, but as a civic right--an obligation citizens owed to the state to arm themselves so that they could participate in a well regulated militia.
  • Gart Hart, Minuteman: Restoring an Army of the People, Diane Pub Co (January 1, 1998). ISBN 075676811X. Without mentioning the movement, the former senator and presidential candidate, 12 years on the Senate Armed Services Committee, proposed a return to something like the traditional militia system, replacing the Cold War military with a smaller standing army and a much larger, well-trained citizen reserve -- an "army of the people."
  • William McCullough, Minuteman Activist: To Promote the General Welfare, Rutledge Books (September 2001) ISBN 1582441723. Former colonel tells how his innovative ideas for resolving problems connected with public safety produced a high level of cooperation.
  • Jim Gilchrist, Jerome R. Corsi, Minutemen: The Battle to Secure America's Borders, World Ahead Publishing; 1 edition (July 25, 2006). ISBN 0977898415. Foreword by Rep. Tom Tancredo. Argues for militia to defend borders from illegal entry, which is seen as presenting the threats of crime, terrorism, and narcotics trafficking.
  • Paul Williams, The Day of Islam: The Annihilation of America and the Western World, Prometheus Books (May 22, 2007) ISBN 1591025087. Presents information from intelligence sources on the threat of nuclear terrorism, and how existing defense measures are inadequate to prevent it.
  • Nuclear Terrorism, by Library of Congress Congressional Research Service (Corporate Author), Jonathan E. Medalia (Editor), Richard Baker (Editor), Rensselaer W. Lee (Editor), Carl E. Behrens (Editor), Nova Science Publishers (January 2003). ISBN 1590335899.
  • Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637, 656-57 (1989).
  • John R. Galvin, The Minute Men: The First Fight: Myths and Realities of the American Revolution, Potomac Books Inc.; Rev Ed edition (November 15, 2006) ISBN 1597970700. —Preceding unsigned comment added by Jon Roland (talk • contribs) 06:11, 13 November 2007 (UTC)
  • First to Arrive: State and Local Responses to Terrorism (BCSIA Studies in International Security), by Juliette N. Kayyem (Editor), Robyn L. Pangi (Editor). The MIT Press (September 28, 2003) ISBN 0262611953. Focus on local response to terrorist attack, including by trained "volunteers", without using the word "militia".
  • John K. Mahon, History of the Militia and the National Guard, Macmillan, (1983); The American Militia: Decade of Decision, 1789-1800, University of Florida Press (1960). ISBN 0029197503.
  • C. Edward Skeen, Citizen Soldiers in the War of 1812, University Press of Kentucky (September 15, 2007) ISBN 0813120896. How U.S. relied on militia in the first war it declared.
  • Mary Ellen Rowe, Bulwark of the Republic: The American Militia in Antebellum West, Praeger Publishers (September 30, 2003) ISBN 0313324107. Argues that the antebellum militia should be seen as a social and political institution, rather than a military one, and contends that it is a key to understanding the political and social values of early 19th century America.
  • R. Burn, 2 The Justice of the Peace and Parish Officer 16-20 (London 1755).
  • F. Maitland, The Constitutional History of England 276-77 (1968) (1st ed. Cambridge 1908).
  • Edwin Vieira, J.D., Ph.D., Constitutional Homeland Security: A Call for Americans to Revitalize the Militia of the Several States, Volume I, The Nation in Arms, Vision Forum Ministries (2007) ISBN 0967175925.
  • Edwin Vieira, J.D., Ph.D., How to Dethrone the Imperial Judiciary, Vision Forum Ministries (August 2004) ISBN 0975526413.

[edit] Possibly related activities or movements

Activities or movements with which it is sometimes allied [citation needed]
Movements with which there has been some crossover of individual participants, but that are not synonymous [citation needed]
Movements with which it is sometimes confused, perhaps deliberately [citation needed]