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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 9



One of the biggest pieces of disinformation, a falsehood really, that is making the rounds today is that the National Guard is our present-day militia.  This is a very doubtful proposition.  Congress created the National Guard on January 21, 1903, by what was then known as the “Dick Act.”


That the National Guard is not the “militia” referred to in the Second Amendment is even clearer today.  Congress had organized the National Guard under its power to “raise and support armies” and not its power to “Provide for organizing, arming, and disciplining the militia.”  The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. 311(a).  (1982, Subcommittee on the Constitution, Senate Judiciary Committee).


For a further proof of this issue, refer to the Fifth Amendment of the Bill of Rights:  “No person shall be held to answer for a capital . . . crime, . . . except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.”  (Emphasis added).


Look closely at the emphasis in the above excerpt.  You will notice not only the word “or” in bold, but also the comma that precedes it.  If our Founders had considered the militia in the same light as the land or naval forces, they would have written, “land, naval forces, or militia,” or “land or naval forces (sans comma) or militia.”  Further, the militia is subject to this exception only “when in actual service in time of War or public danger.”  The exception makes them subject to the Uniform Military Code.  That is Admiralty Law or Military Law, if you wish.  If you think the National Guard or Reserve personnel are subject to Military Law only when in time of war or public danger, just ask one of them who has spent time in the brig or stockade when those conditions did not exist.  They will disabuse you of the notion in a hurry.


This would seem to make the National Guard something more than an adjunct to the standing military.  They may be a part-time standing army, and their condition of enlistment may differ; but they are a part of the standing army, nonetheless.  They are not the militia contemplated by our Founders: 


Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defense?  Where is the difference between having our arms in our possession and under our own direction, and having them under the management of Congress?  If our defense be the Real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?  (Patrick Henry).


Mr. Henry tells us where our Founders thought that arms should reside, and they were willing to settle for nothing less.  That is the purpose of the Second Amendment: to ensure that the condition of an armed citizenry was to be established and maintained in perpetuity as a “right.”


It is apparent the current generations are having a difficult time identifying with the motives of our Founders.  The time for a remedial course on this subject is definitely upon us.  It is better this course be in the form of an essay than in the form of real events.  If we can learn the lessons of history, even at this late date, it will be much to our advantage.  Let us go back in history to a date that lies within the memory of a very large percentage of the citizens living in this nation today:  “In order to subjugate a nation and its people, you must first disarm the people” (Adolf Hitler, January 30, 1933).  A few short years later he said, “1935 will go down in history!  For the first time a civilized nation has full gun registration.  Our streets will be safer, our police more efficient, and the world will follow our lead into the future.”  And indeed we have.  The reworking of our nation’s gun laws, which transpired in the Gun Control Act of 1968, appears to be based quite heavily on those very same gun laws which were effected in 1935 by none other than the Nazi Party of Adolf Hitler.  You can start to look into this matter for yourself by reading Gun Control: Gateway to Tyranny.


What causes us to let down our guard?  Two things come readily to mind: apathy and ignorance of history.  We pay them too little attention.  George Santayana said, “Those who cannot remember history are condemned to repeat it.”  Even when a people are cognizant of its history, they can be manipulated to accept infringement of their liberty.  Let us examine a statement by Eric Hoffer:  “When freedom destroys order, the yearning for order will destroy freedom.”  When we have disorder, fear is created in the populace.  People are inclined to cede away portions of their liberty to the government in an effort to regain their security.  When too great a portion of our liberty has been relinquished to the government, we are returned to the condition of tyranny.  But it does not have to be freedom that destroys order.  Contrived government action will suffice.  It is generally conceded that Hitler caused the Reichstag (Germany’s equivalent of Congress) to be burned down in his effort to gain control of Germany.  He promised to restore order, and the act had so intimidated the German people that they elected him.  World War II followed shortly thereafter.


We are all familiar with the Holocaust which accompanied it.  If you are not, make a point of viewing the movie Schindler’s List.  The movie vividly portrays the degradation the Jewish people were made to suffer, their hopelessness, and their all but complete helplessness.  They were almost completely disarmed and therefore almost completely defenseless.  They were, in fact, entirely dependent on the whim and goodwill of the German government, not only for their daily bread, but also for their very lives.  To challenge the Nazi government meant death.  The director of this movie is Steven Spielberg.  In an interview, he was once asked why he made such a movie.  He replied to the effect of “so that we should learn the lessons of this event and never forget.”  We have not yet learned the lesson.  Read the current events of Africa, China, and Eastern Europe.  Though these nations are far-flung on the globe and their cultures are extremely dissimilar, they do have at least one very glaring thing in common.  The ordinary, everyday people, the people who are being victimized, are almost totally helpless to defend themselves.  As with the Jews in Germany, their governments have disarmed them and left them entirely vulnerable to those same governments and dependent on their goodwill.


Both Schindler’s List and current events should point out to us the wisdom of our Founding Fathers when they insisted on the citizen’s right to keep and bear arms.  An open-minded examination of their writings will confirm that the government’s use of the armed citizen in the militia was for periods when the government was in conformity with the people.  When their government was not, as was the case with England, they reserved their right, under the “laws of Nature and Nature’s God,” to resist that same government.  (See the Declaration of Independence.) Over the years, there has been a spirited debate in this nation concerning the ownership of arms by the individual citizen.  There are those folks who, in the interest of public safety, want to disarm the citizen so one individual might not do violence to another.  This is not to minimize the significance of an individual death; but if you will pay the slightest attention to history, you can’t help but note that the deaths caused by the individual acting alone, or even in small groups, is far outweighed by the destruction of life caused by rogue government.


Recall some of these governments: the Pharaohs, Philip of Macedonia, Alexander the Great, Caesar, Attila the Hun, Napoleon, Hitler, Mussolini, Stalin, Lenin, Mao Tse-tung, Pol Pot in Laos, Ceausescu in Romania, and the list could be expanded.  Some of these governments may have been better and some worse; but one thing they all had in common was their desire to dominate their fellow man, and they were very good at it.  The consequences for the individual were generally dire.  Do you seriously believe human nature has changed so much for the better that people of this ilk no longer inhabit the earth?  Those who would give up their arms and take mine must believe that in the United States human nature has been irrevocably changed and that these things can never again happen, at least in this nation.  Though it may be my own shortcoming, I am not absolutely convinced this is the case.  And neither were our Founders, which is why they devised a structure of government that kept the reins in the hands of the people.  And to enforce that notion in the event the government slipped its leash, they also bequeathed to us the Second Amendment of the Bill of Rights.


In this country, at present every act of disorder is highlighted.  There seems no shortage of elected officials who are willing to restore order; but it is at the price of a portion of our personal liberty.  Liberty is worth fighting for.


A man who has nothing he is willing to fight for, nothing which he cares about more than he does about his personal safety, is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself.  (John Stuart Mill, The Contest in America).


We have an obligation to our children and to our children’s children.  As our Founders bequeathed liberty to us, it is our solemn duty to bequeath liberty to them.  To that end, and until such time as we are absolutely assured (after the second coming) there is no one in this world to be found who would seize that liberty, we are duty-bound to respect and esteem the individual’s right to keep and bear arms.




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