Thursday, April 15, 2010

An Underlying Problem of a Central Premise Behind the Militia Movement

One of the reasons that I've heard bandied about as to why we need local militias is that it is there to act as a check on a tyrannical (federal) government. Recently, a state senator in Oklahoma supported the creation of a state militia, justifying the call-to-arms (which he has since backed away from) with the second Amendment to the Constitution:
The founding fathers “were not referring to a turkey shoot or a quail hunt. They really weren’t even talking about us having the ability to protect ourselves against each other,” Brogdon said. “The Second Amendment deals directly with the right of an individual to keep and bear arms to protect themselves from an overreaching federal government.”
Of course, the "to protect themselves from an overreaching federal government" isn't in the second Amendment. The second Amendment -- in all its ambiguous grammar -- states:
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
True, the amendment -- as commonly understood -- is about federal actions against individuals, but there is nothing about "overreaching federal government" there, unless this is a personal interpretation of "the security of a free State". (The amendment doesn't make any statement about state or local bans, and I wonder if it really could be interpreted as such, even under the so-called Supremacy Clause; Article VI, Clause 2, but I'm no constitutional lawyer.) However, there is one problem with the state senator's particular interpretation, and this lies in Article II, Section 2 of the United States Constitution (emphasis mine):
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
Hmmm... This would imply that the original framing of the Constitution (and not the amendments to it) state that the President is the Commander in Chief of militias as well as the regular armed forces. Therefore, if Oklahoma did create a state militia, then it couldn't constitutionally be used to fight against an "overreaching federal government" because it would fall under the constitutional purview of the Commander in Chief -- possibly the very person who is "overreaching."

Now this creates some conundrums, since the regular rallying call of the American right-wing seems now to be constitutional originalism (i.e., doing only what is in the constitution; what the founding fathers would have wanted). What to do, though, when the very document that you support as the way to do governance explicitly states that the President is the Commander in Chief of state militias? Especially when your implied reason for creating a state militia is to oppose the Commander in Chief?

That's just one underlying problem of the militia movement.

This particular (hopefully) flash-in-the-pan seems to highlight the extreme amount of focus that is given to the Second Amendment, without actually linking it to the enumerated powers of the President, as laid out in Article II of the Constitution (i.e., it divorces one part of the constitution from another part of the constitution). It's the wedge with which the National Rifle Association has expanded gun-ownership rights, having (in recent years) been able to divorce "the right to bear arms" phrase from the "well-ordered militia" phrase. If this divorce weren't there, though, then (in my reading of the amendment, and my own opinion), all gun-owners would need to be part of a state militia, and then its connection with Article II would place all state militias under the control of the President, thereby making the "good senator's" personal presumption as to the meaning of the second Amendment not only null, but quite laughable, too.

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