Constitutional militia movement

The term constitutional militia movement has been used to refer to privately organized citizen groups that support establishment or restoration of a militia system for their nation or part therefo; enforcement of a strict construction of the constitution of the nation or political subdivision thereof, according to their understanding of it; and if nonviolent means are not available, defense against abuses of rights by officials who exceed their authority.

A history professor has argued that the right to keep and bear arms evolved from a duty to be armed. Several historians have argued that this duty was as deterrence against crime and governmental tyranny. 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.

The movement became active in the United States the mid 1990s. The supporters have not been affiliated with any government organization, although most of them have been military and law enforcement veterans. The U.S. Constitution, Art. I Sec. 8 Cl. 15 & 16, and the Second Amendment specifically provide for a militia system rather than a standing army or professional police, which some of them opposed as "select" militia not representative of the communities they might have the duty to serve.

In Anglo-American tradition, every able-bodied person has the moral duty, and, by law, 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. 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 there have also been increasing calls to organize, train, and equip for such threats as terrorism, drug trafficking, and border control. 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.

Legal and Historical Rational and Reasoning

A history professor has argued that the right to keep and bear arms evolved from a duty to be armed. Several historians have argued that this duty was as deterrence against crime and governmental tyranny. 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.

In Anglo-American tradition, every able-bodied person has the moral duty, and, by law, 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. 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.

The U.S. Constitution, Art. I Sec. 8 Cl. 15 & 16, and the Second Amendment specifically provide for a militia system rather than a standing army or professional police, which some of them opposed as "select" militia not representative of the communities they might have the duty to serve.

In recent years there have also been increasing calls to organize, train, and equip for such threats as terrorism, drug trafficking, and border control. 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.

Activists cite law and history, especially from the Founding Era, to explain and justify their aims and agendas:

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. Another supports the concept that the jury is a kind of militia.

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

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.

Movements outside the United States

There have been at least two efforts outside the United States in the past that could reasonably be described as constitutional militia movements. 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, 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.

Controversy

From the inception of the modern movement there has been controversy over whether the movement was an important part of a complete response to many important threats, or a threat in itself. Both protagonists and antagonists have emerged in all parts of society.

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, 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 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".

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.

References

• 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 acknowledgements 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 Onliine 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 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
• Edwin Vieira, Constitutional Homeland Security: A Call for Americans to Revitalize the Militia of the Several States. Volume I, The Nation in Arms, ISBN 0967175925.
• 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 tradtional 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. Foreward 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).
• 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).

See also

• Militia
• Militia (United States)
• Dissident movements
• American Revolution
• Police misconduct
• Prosecutorial misconduct
• Judicial misconduct
• Michigan Militia
• Ranch Rescue
• Minuteman Project
• Militia movement (United States)

Activities or movements with which it is sometimes allied

• Constitutional restoration movement
• Fully informed jury movement
• Gun rights movement
• Tax protest movement (income tax)
• Border control movement
• Ballot reform movement
• Legal practice reform movements
• Judicial reform movement
• Anti-terrorism movement
• Land rights movements
• Libertarian movement

Movements with which there has been some crossover of individual participants, but that are not synonymous

• Patriot movement

Movements with which it is sometimes confused, perhaps deliberately

• Christian identity movement
• Secession movements
• Anti-immigration movements
• Ku Klux Klan
• Racist movements
• Black Panther movement

External links

• United States Militia Association