“A Well Regulated Militia”

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“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.” Article II, Bill of Rights.

The “Militia Act of 1903” takes up questions in the specific context of a vital subset of emergency powers: the power to use military force in responding to domestic crises, including the imposition of martial law. It suggests that  the contemporary understanding, at least insofar as it holds that most constitutional emergency powers belong  to the Executive, fails to account  for this important area. This subset of presidential emergency power is traceable to a series of statutes passed by Congress in 1792, 1795, 1807, 1861, and 1871.[1]

These “Militia Acts,” enacted largely pursuant to Congress’s authority under the First Militia  Clause “[t]o provide for calling forth the Militia to execute the Laws of the  Union, suppress Insurrections and repel Invasions,”[2] delegated broad  swaths of emergency power to the President, especially the power to  impose martial law and suspend the writ of habeas corpus during serious  internal crises.

Section four of the “Militia Act of 1903”, in the Fifty-Seventh Congress, Sess. II CH. 196 clearly states the President can lawfully call forth “organized” militias as defined in CH 196, to “suppress rebellion against the authority of the Government of the United States…” [3] In other words, as the Act stands by itself, and unless amended to exclude such clause, then the U.S. Military can be utilized by the President, to suppress rebellion carried out by U.S. citizens.

“…. of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”  William Blackstone, Commentaries 1:139, 1765, [4]

“Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” House of Representatives, Amendments to the Constitution 17, 20 Aug. 1789 Annals 1:749–52, 766—67, [5]

Article II, of the Bill of Rights regarding militias appears to be a double edged sword. One side of the sword appears to benefit the government from rebellion by its citizens,  and the other  side appears to be meant for the People to combat an oppressive government, when the majority of the People say it be so. Currently, we have a nation in political flux. Municipal, state, and national governments hell bent on positive law (“man’s  law”), and the people hell bent on natural law (“Laws of the Creator”) What both don’t realize, is the fact the U.S. Constitution is positive law, and within the positive law document, is natural law. There appears to be a misunderstanding on both sides as of what the U.S. Constitution actually is conveying, and so this is the conundrum of the state of the union at present time. In other words we have slave against slave, and both thinking they are the master. The U.S. Constitution does not grant rights, as it recognizes them!

Authored by Richard W. Sharp, Jr.

[1] The five statutes are the Calling Forth Act of 1792, ch. 28, 1 Stat. 264 (repealed 1795); the  Militia Act of 1795, ch. 36, 1 Stat. 424 (repealed in part 1861 and current version at 10 U.S.C. §§ 331-335 (2000)); the Insurrection Act of 1807, ch. 39, 2 Stat. 443 (current version at 10 U.S.C. §§ 331-335 (2000)); the Suppression of the Rebellion Act of 1861, ch. 25, 12 Stat. 281 (current version at 10 U.S.C. §§ 331-335 (2000)); and specific parts of the Ku Klux Klan (Civil Rights) Act of 1871, ch. 22, §§ 3-4, 17 Stat. 13, 14-15 (expired in part 1873 and current version at 10 U.S.C. § 333).

[2] U.S. CONST. art. I, § 8, cl. 15; see also Selective Draft Law Cases, 245 U.S. 366, 382-86 (1918) (discussing the First and Second Militia Clauses); Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 HARV.L.REV.181(1940) (same).

[3] Fifty-Seventh Congress, Sess. II CH. 196, http://www.savetheguns.com/PDF_Files/militia-act-of-1903.pdf

[4] William Blackstone, Commentaries 1:139, 1765, http://press pubs.uchicago.edu/founders/documents/amendIIs4.html

[5] House of Representatives, Amendments to the Constitution 17, 20 Aug. 1789 Annals 1:749–52, 766—67, http://press-pubs.uchicago.edu/founders/documents/amendIIs6.html

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