Militia Clause In The Second Amendment – AmmoLand Shooting Sports News

By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli KOLBE VS. HOGAN: PART EIGHT

New York, NY -(Ammoland.com)- Those lower federal district courts and higher federal circuit courts of appeal that seek to disarm Americans, do so in clear denigration of the core of the second amendment and in clear defiance of the U.S. Supreme Court decision and reasoning in Heller.

When deconstructing the history of Kolbe, (Kolbe vs. OMalley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160(4th Cir. 2016); revd en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), legal commentators and laymen generally ignore the issue whether the prefatory militia clause still constrains the right of the people to keep and bear arms. They do so for an obvious reason. After all, the U.S. Supreme Court held, in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), that the Second Amendment protects an individual right to possess a firearm unconnected with an individuals service in a militia. Thus, one might reasonably assume that a sacred shibboleth of the antigun movement and of the antigun movements benefactors in Congress, in the media, in finance, and in several ofthe Courts, may finally be laid to rest.

Yet, that isnt true at all.

Those opposed to Heller'srulingsmaintain the case was wrongly decided and must, at some point, be overturned. Those jurists who share the antigun establishment's sympathies thereupon render rulings as if Heller never existed. The influence of old dogma sets in and pervades judicial opinions. One, though,should not be surprised about this.After all, the Heller case was decided narrowly, sharply demarcated along liberal wing/conservative wing lines.

Those Justices opposed to the Heller rulings made clear their disagreement of and, indeed, their disdain for the methodology employed by,the positions embraced by,and the legal and logical conclusions deducedfrom the premises accepted by the Court's majority in reaching their conclusions.For, theHeller Court majority accepted,as axiomatic,and, in the first instance, that the right of the people tokeep and bear arms is a natural right,preexistent in man and not a privilege bestowed on man by the State, through Government. It is Government that is an artificial construct, not the rights and liberties, codified in the Bill of Rights. Thissacred principal, that the right of the people to keep and bear arms isa natural right, preexistent in man,is consistent with theframers'belief concerning the concept of natural rights, inherent in man. Such rights and liberties, preexistent in man, forever rest beyond the power of the State, through itsGovernment, to intrude upon and to destroy. This sacred precept, the dissenting Justices, in Heller, would not accept, could not accept,would never accept.Thus, the conclusions they reached in Heller were the opposite to, diametrically opposed tothose conclusions drawn by the Court's majority. The philosophical differences dividing liberal wing and conservative wing Justices are much ingrained, and marked. Those philosophical differences manifest in the Courts majority opinion and in the two dissenting opinions. Those differences continue to play out in the rulings and reasoning of the judges who sit on the lower U.S. District Courts and on the higher U.S. Circuit Courts of Appeal. The differences cannot be reconciled. They will never be resolved. The differences are deep set, visceral, as well as intellectual. Surely, the Justices of the U.S. Supreme Court were aware of thenature of and extent of thephilosophical differences that lay between them, that informed theirnotionsof the individual's relation to Government. Theypushed back and pushed backhardagainst the majority opinion in Heller, written by Scalia. But the dissenting opinions in Heller, penned by Justices Stevens and Breyer, who also concurred in each other's opinions,in Heller are legally and logically weak. Thereasoningof the dissenting Justicesislogically faulty, ofteninternallyinconsistent, incoherent, and clearlyantithetical to the framers' ideas concerning the fundamental rights and liberties of Americans.

But the dissenting Justices, unlike the majority in Heller, whose conclusions follow from sound premises, cannot overcome a singular hurdle. It is a hurdlethat weakens their position and ultimately makes their position untenable, ultimately reducingtheir argumentto a reductio ad absurdum. The dissenting Justices must accept one premise that is a basic assumption of the Heller Court majority, namely that the right of the people to keep and bear arms can,at least in theory,under the dissenting Justices' thesis, be vindicated. This is critical. For, ifthe right of the people tokeep and bear arms cannot be vindicated,then the right does not exist, and the right codified in theSecond Amendment reduces the Second Amendment to a nullity asthe right sits empty in the Second Amendment, as abald face lie. Ofcourse the dissenting Justices hold contempt for the right embodied in the Second Amendment. But, they dare not say that. They cannot say thateven as inconsistencies in their positionillustrate that the rightcodified in the Second Amendment simply cannot, under their thesis, be vindicated.

It is a painful thing to seeand their contempt for the rightcodified in the Second Amendment lurks, like some hideous beast, just beneath the surface of their legal opinions.

Justice Stevens, in the first paragraph of his dissenting opinion, joined by Justices Souter, Ginsburg and Breyer, says, The question presented by this case is not whether theSecond Amendment protects a collective right or an individual right. Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right. District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822; 171 L. Ed. 2d 684. Yet,Justice Stevenslays outthis oddgambit,proclaiming unconvincingly and, in fact, inconsistently, that, the individual right of the people to keep and bear armscan be vindicated, notwithstanding that the right is tied exclusivelyto ones connection with and service in a militia. But, is not the right of the people to keep and bear arms,then, as argued by Justice Stevens,a collective right, after all?If so, the rightcannot be an individual right. It is one or the other, not both; and it must be one or the other.But, thetwo are mutually exclusive.But, if the right of the people to keep and bear armsis a collective right, after all, then, how is the right everto be vindicated? We constantly get back to the same problem with the dissenting Justice's thesis. Justice Stevens' opening paragraph does not set forth a vehicle through which he might argue, soundly, that a right exists under the Second Amendment that can be vindicated. And, thepoint that he puts forth in the opening paragraph of his dissenting opinion, namely, that the distinction between individual rights and collective rights is not a critical question before the Court is false.

JusticeStevensattempts to conflate the concept of individual rights and collective rights, ostensibly to support the notion that the right of the people to keep and bear arms that he proclaims to be tied solely to one's connection with a militia, can be vindicated. He knows that collective rights cannot be vindicated. So, he posits thatthe readercan and shoulddispense with the individual right/collective right distinction in the context of the Second Amendment.He dismisses the importance of the distinction as irrelevant, when, in fact, it is critical to an understanding ofthe import and purport of the sacredright embodied in the Second Amendment. Still, heposits, up front, thatthe readercan and should dispense with the individual right/collective right distinction. We should not dispense with the individual right/collective right distinction, from the legal standpoint, because doing so is an affront to the framers' idea of the right of the people to keep and bear arms as a natural right, governed by natural lawthat the right is not, then, man-made, and, therefore, ought not be constrained by man-made laws. And, we cannot dispense with the individual right/collective right distinction from a logical standpoint, because doing so, in the context of the import of the right of the people to keep and bear arms would, then, be incoherent. Justice Stevens presents this assertion as an assumption to be accepted, as reasonable. It isn't. It is a proposition the truth of which must be proved. He does not prove it. Justice Stevens assertsit anyway, as a given, as a naked assumption, and then proceeds on his merry way with his argument that the right to be vindicated does exist; and that the right can existwithin the notion of connection with one's service in a militiaa collective right, after all,a collective rightthat does not and cannot exist legally, and,more importantly, a right that does not and cannot existlogically.JusticeStevensthereupon, negates, tacitly, at least,the truth of the assumption he makes, and his argument, existing as it does onthat single false assumption, collapses in, on itself. But, Justice Stevens continues with his faulty logic, undeterred. After surmising that the right of the people to keep and bear arms can be vindicated in the context of an individual's connection with a militia,Justice Stevenscontinues with thecrux of his thesis, namelythat the Second Amendment's dependent clause, that he refers to as a preamble, carries the force of the right. Justice Stevens argues that the right of the people to keep and bear arms is conditioned by,limited by the preamble.Justice Stevens claims thatthe preamble iscritical to an understanding of the meaning of theright established. He emphasizes the importance of the preamble to the Second Amendment when he should know that, in law, a preamble never carries, within it, a legally enforceable right at all.

Enforceable rights do not exist in thepreambles to contracts, laws, or even constitutions. Rights exists in the operative portions of contracts, laws, and constitutions. The right of the people to keep and bear arms is not conditioned by the dependent, antecedent clause of the Second Amendment. The rightis contained solely in the independent, operativeclause of Second Amendment. And, in that operative clause of the Second Amendmentthere is no qualification or condition, limiting the extent of the right. Moreover,as an embodiment of a natural law, the right of the people to keep and bear arms cannot be conditioned anyway.

Nonetheless Justice Stevens emphasizes the importance of the antecedent clause, the preamble. Heopines, The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendments purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be well regulated. In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneouslywith the Declaration of Independence. District of Columbia vs. Heller, 554 U.S. at 640-641; 128 S. Ct. at 2824-2825; 171 L. Ed. 2d 686-687.

Were Justice Stevens correctan opinion still held erroneously by many lower U.S. District Court judges and higher U.S. Circuit Court of Appeals judges as wella question arises whether there is anything left to the right of the people to keep and bear arms that shall not be infringed. For, if the right of the people to keep and bear arms extends merely to ones service in a militia, does not that interpretationessentially destroy the right embodied in the Amendment? It does; and, in fact, that is the point Justice Scalia was getting at in Heller when taking Justice Stevens to task, and it is a point that Justice Stevens was never able to effectively counter, try as he did.

Justice Stevens was, apparently, astute enough to recognize the problem with his position. Its a problem that transcends legal considerations. It is one that rises to the level of a logical defect in his thesis. He therefore felt compelled to respond to it, albeit he did so in a footnote. But Justice Stevens response is confusing and ultimately logically unsatisfactory.

Attempting to circumvent Justice Scalias point, Justice Stevens asserted inhis typicalroundabout, fashion that, The Court assumesincorrectly, in my viewthat even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante, at 600, 171 L. Ed. 2d, at 662. That assumption is not supported by the text of the Militia Clauses of the original Constitution, which confer upon Congress the power to organiz[e], ar[m], and disciplin[e], the Militia, Art. I, 8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States' power to create their own militias provides an easy answer to the Court's complaint that the right as I have described it is empty because it merely guarantees citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them. Ante, at 600, 171 L. Ed. 2d, at 662. District of Columbia vs. Heller, 554 U.S. at 655 fn 20; 128 S. Ct. at 2833 fn 20; 171 L. Ed. 2d 695 fn 20.

Justice Stevens argues in his dissenting opinion that Congress cannot exclude ones right to keep and bear arms. But, suppose a State should decide to exclude ones right to keep and bear arms. What then does that make of the individual right of the people to keep and bear arms and in what manner would a person be able to vindicate that right against ones own State? But, there is a more serious problem. For, even as to Congress, if one surmises that the right of the people to keep and bear arms is bound up in the notion of a militia, Congress may very well have plenary power to disband a State militia. In fact, it has done so, and has emphasized its power over a States militia even during the infancy of this Nation. That means the right of the people to keep and bear arms either exists within the context of a man-made constructa militiaand, if so,the right, then, does notexist and never existedat all, or the right exists, quite simply, independently of, and always did exist independently of, one's connection with a militia. The right must exist, then,in the individual.

A States militia, as an organized body of men simply no longer exists. Congress has seen to that. Congress itself has essentially destroyed the organized militia of every State through legislation in which a States National Guard is essentially a component of the United States Army, while the Air National Guard of a State is a component of the United States Air Force. Today, the states security personnel are not militiamen, but principally are the members of local law enforcementand the bulk of counterterrorism work will fall to them. The Security Constitution, 53 UCLA L. Rev. 29, 141-142 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School.

Expanding upon the point, the author says, in a footnote, In thinking about modern translations and applications of the Constitution, one error must be avoided: equating the National Guard with the old militia. The National Guard claims to be the direct descendant of the militia. See National Guard Website, History, http://www.arng.army.mil/history (last visited July 27, 2004). In fact, the National Guard originated in the early twentieth century as a part of the national military. See Act of Jan. 21, 1903 (the Dick Act), ch. 196, 32 Stat. 775 (promoting the efficiency of the militia, and for other purposes and forming the Organized Militia as the State National Guard, in accordance with the organization of the Army, and with federal funds and army instructors); Act of June 3, 1916 (National Defense Act), ch. 134, 39 Stat. 166 (making the National Guard part of the Army). Moreover, the National Guard is nothing like the old militia. The cornerstone of the Constitution's militia was universal service (by adult white men), whereas the National Guard is an entirely voluntary corps. The militia originated as a local institution under the authority of the states, but the National Guard is, by law, part of the national military, run by, paid for, and mobilized by the national government. See Uviller & Merkel, supra note 425, at 142-43. Indeed, the militia . . . was designed and supported as an alternative to the professional standing army of the central government. The modern National Guard, then, is not just different from the militia referred to in the Constitution, it is in many ways, its antithesis. Id. at 153-54 (concluding that there is today no functionally equivalent entity of the old militia). The militia was not only separate from the national army, it was meant to outnumber and overpower it. (Recall Madison's claim about what a half million militiamen could do to twenty-five or thirty thousand regulars. See supra text accompanying note 177.) Today, though, more than 1.4 million troops belong to the regular United States military establishment the Army National Guard has about 360,000 members. Uviller & Merkel, supra note 425, at 143. The distinction between the old militia as an alternative to a standing army and the National Guard as the army itself is symbolized by a further difference: who takes care of the weapons. Militiamen kept their guns at home because they might need them at any moment to rise up in arms against oppression. Weapons for use by National Guardsmen are kept under lock and key in federal armories. Further, the only armed fighting Guardsmen do is at the direction of the government itself. See id. at 143-44. (Without pressing the point too far, police officers today keep and maintain their own weapons; it is also a fair assumption that to the average citizen, seeing a police officer, gun in holster, patrolling a street, is less startling than seeing a Guardsman in fatigues with an M16.) For all of these reasons, it is wrong to read the Constitution's militia provisions as referring today to the National Guard. At the same time, the federal government can, of course, deploy the National Guard as part of the national military for homeland security purposes. 53 UCLA L. Rev. 29, 141-142 fn 621 (October 2005), by Jason Mazzone, Professor of Law, Brooklyn University Law School.

To tie the right of the people to keep and bear arms into the notion of a militia or into the descendent of the militiathe National Guard, which is essentially a part of a standing armythe very thing the framers sought, in the codification of the right in the Second Amendmentto bea guard againstturns the rightinto a blasphemous,ludicrous caricature. Justice Stevens must have known of the disingenuousness of his remarks in Heller. One can forgive Justice Stevens intellectual fallibility. But one cannot forgive, nor should one forgive, blatant hypocrisy.

Eleven years prior to Heller, Justice Stevens wrote his dissenting opinion in Printz vs. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914(1997). This was a case where, as in Heller, not incidentally, Justices Souter, Breyer, and Ginsburgconcurred in Justice Stevens' dissenting opinion. Justice Stevens' dissenting opinion in Printz may be perceived as a precursor to his dissenting opinion in Heller, in which the Justice elaborates on his desire for a strong federal Government to thwart the excesses of the publicwhere excess means the existence of an armed citizenry. Justice Stevens' contempt for the Second Amendmenta contempt shared by the liberal wing of the Court that concurred in his opinionis on full display in Printz. Again, as in Heller, Justice Stevens' twists his words, arguing,in Printz, essentially that the Federal Government must require the individual States to clamp down on an armed citizenry. This according to Justice Stevens,in his usualtwisted logic, serves as a guard against tyranny. For, if the Federal Government should, on its own, simply create a vast bureaucracy to clamp down on an armed citizenry, that would certainly lead to tyranny. But, does there exist a difference?

In Printz, a case cited by the author of the aforementioned law review article, the U.S. Supreme Courtin an opinion penned by Justice Scalia, for the majorityinvalidated a portion of the Brady Handgun Violence Prevention Act that prohibits the Federal Government from commandeering State Executive Officials from enforcing Federal law. Justice Stevens and the other liberal wing contingent of the high Court took exception to that. Justice Stevens argued that Congress was well within its power to compel a State's assistance in fighting the epidemic of gun violencewhich, Stevens felt the Brady Act was enacted to combat.

With his proclivity to contort ideas through verbal legerdemain,Justice Stevensargued, in Printz, that tyranny is less likely to occur in our Nation when the Federal Government can and ought to compel the States to act in its behest than were the Federal Government simply to create vast national bureaucracies to implement its policies. Printz vs. United States, 521 U.S. at 959, 117 S. Ct. at 2396, 138 L. Ed. 2d at 959(1997).

Extrapolating from Printz, one might reasonably argue that Stevens makes a similar case in his dissenting opinion in Heller. Tyranny, for Stevens is less likely to occur when the Federal Government can compel the States to constrain possession of firearms in the citizenry than were the Federal Government to create a vast National bureaucracy to do the job itself. But, in terms of the result, this is truly a distinction without a difference. If the militia is identified with the National Guard and the National Guard is essentially an adjunct of the United State Army and if the individuals right to keep and bear arms is a function of ones connection with a State militia qua a States National Guard, wherein is the right to keep and bear arms, existent in the individual, to be vindicated? If the threat, as Justice Stevens sees it, as evidenced in his dissenting opinion in Printz, is found in the very existence of an armed citizenry as situated apart from that armed citizenrys connection with a States militia qua National Guard, as merely an adjunct of the Federal Governments standing army, then wherein is one to envision anything left of the Second Amendment as a right to be vindicated?

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Militia Clause In The Second Amendment - AmmoLand Shooting Sports News