“A well-regulated militia”: A blast from the past

Much has been made by Freedom Deniers about the use of “A well-regulated militia” in the 2nd Amendment. (I have dealt elsewhere with other arguments against their interpretation.  Here I deal with the phrase “well-regulated militia” itself.)

Let’s see what James Madison, the gentleman who was the primary author of the Bill of Rights had to say on the subject:

“The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition.  … [Here Madison describes a chain of events, unlikely as he thought them, that might lead to such a force being gathered] … Let a regular army, fully equal to the resources of the country, be formed; and it would not be going too far to say that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to my best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves.” James Madison, The Federalist Papers 46.

This was one of the arguments given for accepting the Constitution with its much stronger central government (compared to the Articles of Confederation). An army about three times the size relative to total population, as the US army is today, would be overwhelmed by a citizen militia of a number amounting to essentially every free male (an issue at that time) capable of bearing arms.

Note that the 1790 Census listed a total population of “free white males 16 and over” of just over 800 thousand. Since some folk would be too old, or infirm, or otherwise not able take up arms in the “militia” at any given time this is another confirmation that Madison’s “militia” was the entire population of the US capable of bearing arms. And here we see from his own words that one of the purposes of that militia was to serve as a check against the possibility of the Federal government using a standing army against the rights of the States and the People.

And since Madison was the primary author of the Bill of Rights, I think this should put to rest any further speculation about what “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 good part of “security of a free state” is security as a free state.  And the very purpose is to ensure that the States had sufficient strength, militarily, residing in their “militias”, which was to say the whole of their people capable of bearing arms, to outweigh any attempt by the Federal government to overpower the States.

One thing to consider is that a “well-regulated militia” must, of course, be “well regulated” according to the meaning of those who wrote the Bill of Rights and whether the National Guard serves that purpose today.  But what did “Well-regulated” mean?  Contrary to popular modern belief it did not mean “under government control”.  Consider the usage examples from history of the term (taken from the Oxford English Dictionary):

1709: “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”
1714: “The practice of all well-regulated courts of justice in the world.”
1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”
1848: “A remissness for which I am sure every well-regulated person will blame the Mayor.”
1862: “It appeared to her well-regulated mind, like a clandestine proceeding.”
1894: “The newspaper, a never wanting adjunct to every well-regulated American embryo city.”

Here we are.  “Well regulated” does not mean “under government control” but rather something along the line of “in good working order” or “doing what it should.”

Well, one of the “what it should” for the militia is to serve as a check against Federal power.  Can the National guard serve that purpose?  The National Guard is 1) smaller than the national military, 2) often less well armed (many guard units, in my experience, have been armed with obsolete “castoffs” of the regular military), 3) paid for by the Federal government 4) subject to call-up by the Federal government at any time with the State having no authority to overrule that call-up, 4) provided with such arms as it has by the Federal government and on and on and on.  A lesser armed force can stand against the Federal government if it is numerically superior and has local support (see Vietnam, Iraq, and Afghanistan for examples).  However a force that’s smaller, less well armed, and relies on the Federal government for pay and equipment cannot serve as a check against Federal power.  It’s a part of Federal power regardless of it’s on paper attachment to an individual State.  Thus, the National Guard, by definition, cannot be the “well regulated militia” that Madison describes in the Federalist papers.  It does not meet the “well regulated” part (as Madison understood the word to mean) because it could not stand as a check against Federal power over the States.

The “well-regulated militia” remains today what it was to Madison–the whole of the people capable of bearing arms.

Why Gun Control cannot work

If we just prohibit the law abiding from owning guns, then criminals won’t be able to get them either.

So say the proponents of “strong gun control”.  That they often say this in the same breath with saying they are not for complete prohibition but just “reasonable” or “common sense” restrictions, makes the claim even more laughable.

The first thing you need to remember is how extremely simple guns are at their core.  The basic firearm dates back to 13th century China.  Firearms first arrived in Europe in the next century.  Methods making firearms more conveniently portable and more effective continued to evolve.  The matchlock, basically a lever that dropped a smoldering wick (a cord treated with saltpeter so it would continue a slow burn and called a match) into a small container, called a pan, of powder attached to the barrel.  It ignites the powder in the pan which in turn ignites the main charge and fires the gun  The wheellock used a grooved wheel, spun against a piece of pyrite or flint to generate sparks to ignite the powder in the pan.  The snaplock replaced the wheel and its complicated operating mechanism by simply having the flint/pyrite strike a piece of steel.  The flintlock simplified it still further by having the pan cover and striking target of the flint combined into a single piece in the early 1600’s.

Percussion caps, the father of the primer, were first introduced in the early 19th century.  And with that, 19th century technology, we have the elements needed for the modern firearm.

The chemicals necessary to make percussion caps are straightforward and only a modest knowledge of chemistry is required to do it.  Black powder is even simpler.  But even smokeless powders are only nineteenth century technology.

Thus, even if one were able to make all the currently existing firearms disappear, a bigger challenge than the folk promoting gun control would have you believe, what you cannot do is eliminate the knowledge of how to make more.  Everything from simple single-shot firearms made from plumbing supplies, to submachine guns can be and are made by individuals both openly and clandestinely.

Here are a few examples:

That’s just at tiny, tiny sample.

The United States Army has a training manual, TM 31-210 Improvised Munitions, which includes how to make firearms and explosives from readily available materials.  Yes, it’s available online.

In addition to manufacturing firearms, there are numerous solutions for improvised ammo as well.  Cases are simply brass tubes sealed at one end.  Bullets are simply something solid stuck at the other end.  The most difficult portion is priming, igniting the powder in the case.  And that, frankly, has been a solved problem for two hundred years.

And, yes, these improvised/homemade weapons have certainly been used:

So much for Australia’s ban.

If the criminals want guns, they can get guns.  They can smuggle them or they can make them or have them made.

Happy Income Tax Day.

On this day in 1913, the Sixteenth Amendment to the United States Constitution was ratified, granting the United States Government the authority for a Federal Income Tax not “apportioned” based on census numbers.

In the War of 1812 an in come tax was proposed but never implemented.  It was during the Civil War that the first Federal income tax was actually implemented, first a flat tax of 3% on incomes above $800, then a graduated tax of 3 to 5% on income above $600 (about $13990 today).  These taxes expired in 1872.

In the decades following the expiration of the Civil War taxes, a number of parties looked at the amount of money they generated and said figuratively “I’ve got to get me some of that.”  The Socialist Labor Party, the Populist Party, and the Democrat Party all advocated income taxes

In 1894, as an Amendment was attached to a tariff act instituting an income tax of 2% on incomes over $4000 (about $111,133 today).  However, in 1895, in the case “Pollack vs. Farmers’ Loan and Trust” declared some of those taxes to be direct taxes unconstitutional because they were not apportioned.

This, of course, could not be born by those in Washington who wanted their hands in Americans’ pockets.  So in 1909, William Howard Taft proposed a Constitutional Amendment to make those taxes Constitutional.  And on July 12 of that year, the resolution to adopt such an amendment passed Congress.

One by one, States began ratifying the Amendment, starting with Alabama on August 10, 1909, until finally Delaware became the 36th state to Ratify it on Feb 23, 1913 putting it over the 3/4 of State Legislatures requirement for it to become part of the United States Constitution.

In doing so, this removed the precedent set by the Pollack decision.  It was reviewed again and overruled.

The Revenue act of 1913 reimposed the Federal Income tax.  It imposed a 1% tax on couples making more than $4000 ($99,664 today) or single individuals making more than $3000 ($74,748 today).  At higher incomes an additional tax was also imposed, culminating in a maximum rate of 7%.

From such small beginnings has the huge morass of the modern tax code grown.

The right to…

A lot of people are a bit confused on what “the right to [something]” actually means.  They think having a right to something means that someone else must provide it for them.

Sorry, but that’s not the way it works.

If you look at the Bill of Rights, you’ll notice a couple of things:  One is that many of the rights are restrictions on government:  “the government is not allowed to do X”.  Another is that, with a couple of specific exceptions, the right to something is the right to do something, not the right to get something.

Let’s break down some examples.

The First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This is two cases in one.  It’s a restriction on government–“Congress shall make no law”–but is also a right to do:  practice religion, speak, write/print (press), assemble peaceably, and petition Government for redress of grievances. (This latter doesn’t just mean circulating “petitions” for signatures but more generally the right to ask government to fix what you believe it’s doing wrong.)  It does not mean that the government has to provide you with a printing press, a loudhailer so your speech can reach farther, or a meeting hall for your assembly or religious practice.  It only allows you to obtain those things.  If you want to speak from your soapbox, then bring your own soapbox.  Neither the government, nor anyone else, is required to provide you with one.

The Second:

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.

First, yes, I know.  People try to make much about that introductory bit about “A well-regulated Militia.  I deal with that elsewhere:  Notably here and here and here.  So, we’ll leave that.  Look at what’s protected.  The right to keep and the right to bear.  To own and to carry.  Nowhere does it say “the right to have the government provide for you.”  You want it?  You get it yourself.

The Third:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Restriction on government again.  They can’t require you to let soldiers live in your house, except in a time of war “in a manner to be prescribed by law” which means it can’t be the arbitrary decision of some commander.

And so on.

It’s not until we get to the Sixth where you have a right to something that the government can be obligated to provide.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

In this case the government is required to provide a trial, an impartial jury, and the ability to compel witnesses.  The right to have the Assistance of Counsel for defense has been further defined as a right to an attorney and, if unable to afford one, the government has to provide one.

But note something here.  In this case it is the government that is threatening you.  It is the government action that creates a need to ensure that your rights are not violated, that you are not unjustly punished, that “cruel and unusual punishment” (which I have always taken as inappropriately harsh for the crime while still allowing harsh punishments for severe crimes) is not inflicted and so on.  It’s not something you have just decided you want.  It is not something that some situation in your own life instills a “need”. You are in the situation of needing these things because the government has put you in that position.  If you did not have these things then government could simply make anyone they wished disappear.  So the government must ensure you have the tools available to protect yourself, inadequately perhaps given the way things have gone over time but at all, from government itself.

That’s why the things here must be provided by government, because government itself is the threat.

The seventh extends the right to trial by jury in federal civil suits exceeding a value of $20 (which was a lot more when the Constitution was written than it is now).  This is an extension of that sixth Amendment right, and much of the same argument holds since the government is involved by settling the disputes by law.  but note that only the right of a jury to settle the dispute is all that is promised here.  The other elements of the sixth are absent.  The seventh also prohibits re-trying a case that has been settled by a jury except except according to the rules of the common law.

The eighth prohibits government from inflicting cruel and unusual punishments.  The ninth says that this is not an exhaustive list of rights.  And the tenth says if the Constitution doesn’t grant a power to the Federal government or prohibit it to the States, then it belongs to the States or to the people.

So there is only one instance–the right of trial by jury and the things attached to it–where a right is something that has to be provided for you.  In no other is that the case.

Thus, when someone says “I have a right to this.” The answer could well be “yes, you do.” If it is not prohibited in a manner consistent with the Constitution of the United States and that of the State in which they are present, then, they have a right to it.  But that right is not an obligation for anyone else to provide it for them.  They have the right to seek it, to obtain it in whatever legal manner they may do so (stealing it or stealing money to buy it are right out).

They do not, however, get to force others to provide it.