[COMMENT: This is one of the best historical analyses of gun-control that I have seen. It redefines the whole Second Amendment debate. Edwin Vieira is among the most gifted writers in politics and economics around. He does his homework. E. Fox]
Dr. Edwin Vieira, Jr., Ph.D., J.D.
Studying the Colonial and State Militia Acts of the 1600s and 1700s reveals a stark divergence between the principles of the constitutional "Militia of the several States" and the principles of contemporary "gun control". Not entirely obvious, though, yet crucial to the survival of freedom in America, is what this divergence represents.
The fundamental operational principle of the constitutional Militia is that everyone who is physically able is required to be armed--with his own personal military-grade firearm, ammunition, and necessary accoutrements in his own possession at home--and ready to repel invasions, suppress rebellions and insurrections, and enforce the laws, especially against usurpation and tyranny.
The Colonial and State Militia Acts of the pre-constitutional period generally did exempt from routine Militia musters and training some people who held high public offices or who engaged in particularly important professions or trades. Nonetheless, most of these individuals were required by law to arm themselves and to appear for service during "alarms". For a typical example, Georgia's Militia Act of 1755 mandated that
These special exemptions, however, were matters of statutory grace, not of legal right. Militiamen were not volunteers. "[E]very able Male person from the age of Sixteen to Sixty years" was required to serve. And to be excused required a special reason recognized by the legislature.
Georgia's Militia Act of 1755 illustrates the general requirements enforced throughout the Colonies and independent States, that:
As this statute shows, the duty to keep and bear arms had no limitation or qualification, but obliged every male inhabitant from 16 to 60 years of age to arm himself and appear for musters, training, and service in the field. The lower and upper boundaries of age the statute set on the duties to arm, muster, train, and serve were intended only to reflect practical presumptions about physical ability and psychological maturity, not to impose arbitrary discriminations. Georgia's Militia Act specifically called to service men from 16 to 60 years of age with the expectation that they would prove both capable in skills and sufficient in numbers to do what was required of them. But those boundaries were never meant to be exclusive. Neither in Georgia nor in any other Colony or independent State did any Militia Act ever decree that any free and loyal person under 16 or over 60 (or whatever the particular ages happened to be) could not possess a firearm, ammunition, and accoutrements suitable for Militia service (or any other legitimate purpose, for that matter). Or that anyone between 16 and 60 who was physically unable to train or serve in the field could not possess a firearm. Or that anyone over 60 could not volunteer for Militia service, or would never be required to serve in case of an "alarm". Or even that women could not possess--and, if absolutely necessary in an emergency, use--firearms for the common defense or self-defense.
The Militia Acts of pre-constitutional times mandated no licensing requirements for the inhabitants' private possession of arms. They established no general control over firearms by public officials--to the contrary, firearms were required to be in every man's own hands, "at his usual place of abode". No one worried about being punished for possessing a firearm and ammunition--rather, penalties attached for not having them always available, in good working order. No one feared that public officials would conduct house-to-house searches to find and take away armaments--instead, "a sight" could be demanded only to make sure that every man actually had immediately accessible to him at home a suitable, functioning firearm and ammunition for his own personal use. And public officials were concerned, not that the people possessed too many firearms, but that they had too few.
None of this was extraordinary, in the political context. The pre-constitutional Militia Acts enforced the duty of each individual to keep and bear arms which derived from, and put into general effect for the benefit of society as a whole, the unalienable right of each individual to keep and bear arms for personal self-defense--what the Founding Fathers' legal mentor, William Blackstone, called "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression". Indeed, if Americans had enjoyed no right to keep and bear arms--that is, no legal claim to arm themselves against the contrary commands of public officials--they could never have imagined themselves entitled, empowered, or enabled to employ arms to suppress, oppose, or even deter usurpation and tyranny.
The principle in operation was that the only truly free men are armed men, because an armed citizenry is necessary to maintain a free society. As the Second Amendment came to summarize the idea, "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed". A "free State" is one with "[a] well regulated Militia"; and "[a] well regulated Militia" is one composed of all "the people" actually exercising their "right * * * to keep and bear Arms", with no "infringe[ment]" by public officials. Arms in every citizen's personal possession are the precondition for freedom, freedom the hoped-for consequence of such possession (if the Militia do their part). And public officials can do nothing to interfere with such possession, being limited in their authority to ensuring that, through and in the Militia, everyone obtains and maintains private possession of firearms suitable for defending individual liberty and social order.
In Georgia, however, as in most Colonies and independent States, not everyone was free to possess firearms, because not everyone was free in other ways. As the Militia Act of 1755 itself recited, "every able Male person from the age of Sixteen to Sixty years who has once resided & shall be [within] this province for the space of Three Months (SLAVES EXCEPTED) is * * * lyable to bear Arms". Thus, the emphasized words turn the researcher to the Colonial law of slavery.
Georgia’s Slavery Act of 1765, for example, explained itself on the rather blatant theory of legalistic oppression that
The Act went on to provide
The connection between theory and practice in this statute was as inevitable as it was obvious. Those "kept in due Subjection and Obedience" could not be suffered to possess firearms without strict supervision and restraint, lest they attempt to employ those firearms to free themselves from that "Subjection and Obedience". So, slaves' access to and use of firearms were strictly "licensed" or otherwise controlled, in order
Under some circumstances, though, even slaves could be armed for service with the Militia during emergencies. For example, Georgia’s Militia Act of 1755 allowed
And meritorious service was rewarded. For
This remained the practice on the eve of the War of Independence.
Nonetheless, armed service with the Militia depended entirely on a slave's proven political reliability, as evidenced by his master's recommendation. No one else in Colonial America required a recommendation from some alleged superior before he could possess a military-grade firearm; and no one else could keep and bear such a firearm only "in Time of General Alarm and Actual Invasion * * * & not otherwise".
That the only general exception in Colonial statutes to the right of
individuals to keep and bear arms applied exclusively to slaves supports
Now, the exception to the right of individuals to keep and bear arms found in the Slave States--namely, that those States could compleatly and permanently disarm the class of individuals held in bondage--continued after ratification of the Constitution, because slavery persisted in those States. And, as the Militia remained "the Militia of the several States", even Congress could not employ its power under Article I, Section 8, Clause 16 to arm slaves in contradiction of State laws that sanctioned "the peculiar institution". Therefore Congress never attempted to do so.
In 1865, however, the Thirteenth Amendment outlawed slavery in most cases:
Because slavery was, as Georgia's statute of 1765 attested, a matter of "positive law"--that is, because the legal existence of slavery required a statute within the competence of the legislature to enact--when the Thirteenth Amendment limited the imposition of slavery to "a punishment for crime" it necessarily stripped both the State legislatures and Congress of any purported power to impose slavery or any of its peculiar "badges and incidents" for any other purpose.
General "gun control" was an important "badge and incident" of slavery--indeed, the most crucial of all, because without it the slaves could not possibly have been "kept in due Subjection and Obedience". Therefore, today the Thirteenth Amendment must outlaw all general "gun control", except as to those individuals who have actually been "duly convicted" of "crime" and for their "punishment" have been sentenced to a term of "slavery [ ]or involuntary servitude", during which they may be "kept in due Subjection and Obedience" by being disarmed, even after being released from prison. (What violations of law may rightfully be considered a "crime" deserving of "slavery [ ]or involuntary servitude" is, however, another question. Arguably, a "felony" as understood in the Colonies--that is, "an offence which occasions a total forfeiture of either lands or goods, or both, at the common law; and to which capital or other punishment may be superadded, according to the degree of guilt"--could qualify.)
In any event, the Thirteenth Amendment's implicit limitation on general "gun control" puts sharp teeth in the explicit guarantee of the Second Amendment that "the right of the people to keep and bear Arms, shall not be infringed". For vanishingly few Americans would knowingly tolerate the imposition of any of the "badges and incidents" of "slavery [ ]or involuntary servitude" as "punishment" for any but the most serious "crime[s]" and the most hardened, recidivistic offenders.
And teeth are surely necessary, in light of the parallels between the law of slavery as it applied to firearms and contemporary proposals for general "gun control":
These parallels illustrate that general "gun control" is nothing less than a political program aimed at reimposing the most crucial "badge and incident" of slavery on everyone other than an elitist leadership class and its armed guardians, in order thereby to remove the ultimate deterrent to and defense against that class's usurpation and tyranny, and keep common Americans perpetually "in due Subjection and Obedience". (A slave, of course, can never complain of usurpation or tyranny, because slavery is the very perfection of usurpation and tyranny.)
Nowhere in America are these parallels more glaring and shocking than in the District of Columbia. The District prides itself on being a city in which African-Americans, the vast majority of whom are probably to some degree descendants of Southern slaves, hold high political, economic, and social positions. And it is the Nation's Capital. Yet, all of this notwithstanding, the residents of the District of Columbia suffer from "gun control" that in its thoroughgoing oppressiveness embodies the essence of the exorbitant powers claimed by antebellum Southern slavery.
How is one to explain this antinomy? That the District's public officeholders, police officials, and other influential people of African-American descent who stump for "gun control" are just handkerchief-head Uncle Toms, shuffling for the Establishment? In some instances, venal collaboration may be the answer. In most cases, though, the culprit is more likely vincible ignorance. (A negative cultural conditioning, too, may play a role.) These people simply do not understand what freedom promises, entails, and especially requires. They do not know the history of this country, or their own history--and knowing neither they cannot read and apply the Constitution intelligently.
That burden of ignorance, unfortunately, is a problem all too many other Americans share with them. True, it is correctable. But the time for correction is running out, for all of us together.
To my readers:
I am now working on a constitutional program of "homeland security" based on "the Militia of the several States". This is probably the most important project on which I have ever embarked. It will also be the most difficult to fund, because next to no one among the powers that be, "conservative" or "liberal", wants to see the Militia revitalized.
Therefore, I appeal to common Americans for whatever financial support they can offer to advance this work. Contributions should be marked "Militia Project", and mailed to me at 13877 Napa Drive, Manassas, Virginia 20112. All contributions will be hypothecated to this work only.
Even if you cannot contribute, please drop me a line to let me know that you believe this effort is important.
Thank you in
1, AN ACT For Regulating the Militia of this province and for the
Security and better Defence of the same, 24 January 1755, in THE
COLONIAL RECORDS OF THE STATE OF GEORGIA, VOLUME XVIII, STATUTES ENACTED
BY THE ROYAL LEGISLATURE OF GEORGIA FROM ITS FIRST SESSION IN 1754 TO
1768 (compiled and published by A.D. Candler; Atlanta, Georgia: C.P.
Byrd, 1910), at 16-18.
© 2005 Edwin Vieira, Jr. - All Rights Reserved
Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective.
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
His latest book is: "How To Dethrone the Imperial Judiciary"
He can be reached at:
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