Monday, April 7, 2008

The Militia and the Right to Arms

The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Constitutional Conflicts)
by H. Richard Uviller

This treatise has one fundamental flaw, a misrepresentation of what the term "militia" means. The authors equate it with an organized body initiated and commanded by state government officials, but if that is what the word means to them, it is not what the word meant to the Founders. The term is from Latin, and it translates as "defense activity". In the idiom of the era, a word for an activity could also be used to refer to those engaged in that activity, and that usage is the source of the confusion here.

There is also a misrepresentation of the meaning of the word "state", which, when used in the context of the Constitution, does not mean the government of the state, but the people of the state, whether they acted through a government or not. When the Founders referred to a state government, they used the term "state legislature".

The authors are correct in their thesis that the right to arms is tied closely to the duty of militia. However, they commit a logical error in concluding that if the duty is being neglected, the right disappears. The duty is indeed being neglected, but the duty continues, a duty that arises out of the social contract that created the society and the natural rights and duties of mutual defense of rights that are the terms of the social contract.

The duty, and the right to perform that duty, continues, regardless of whether it is being actively performed or not. In fact, it is being performed by millions of civilians every day, in thousands of ways. Every time anyone reports a crime, conducts his own criminal investigation, or makes a civilian arrest, that is militia. Any time anyone defends himself or another from injury, that is militia. Any time anyone asks others to join him in defending the community from any threat, that is a militia call-up. We are all militia, when we engage in militia, even when we act alone. There is no need for initiation or leadership by some official. Of course, sheriffs are supposed to be the militia commanders of their counties, and constables militia commanders of their wards or precincts, but if they neglect to perform that duty, the duty falls upon anyone present who is aware of a threat requiring defensive action, or preparation for such defense.

For more on this topic see .

The United States of Ambition

The United States of Ambition: Politicians, Power, and the Pursuit of Office
by Alan Ehrenhalt

The book is a good introduction to a larger topic that deserves a more thorough treatment than a single volume could do. It examines how and why the political process has devolved since the Republic was founded, and in so doing, sheds light on the Supreme Law, the Constitution, and the kind of country and citizenry it contemplated in its design. The key idea is that liberty and the rule of law depend ultimately on a certain kind of civic virtue. If that civic virtue fails, tyranny will prevail, and no written constitution can prevent it.

To understand where we are today, we need to return to the way things worked with the country was founded, and the presumptions made about that by the design of the Constitution. The main thing was that almost all civic functions were performed not by government employees, but by amateur citizen volunteers. Most government that affected people's lives was local, and often consisted only of an elected county judge and an elected county sheriff, who often served only part-time and had other sources of income. Most decisions were made by town meetings and juries, and most law enforcement was conducted by militia, few if any of whom were paid.

One might think that what happened then was that the demand and supply of civic functions increased to the point where it was no longer feasible to have the work done solely by unpaid volunteers, that the core of civic work needed to be done by full-time paid professionals. That is part of what happened, of course, beginning with downplaying of the militia and enlargement of the role of the standing military. But there is another factor that is often overlooked, and to understand it, we need to look at elections.

Today it seems incredible, but in the early years of the Republic most candidates for public office won office without great expenditures of money or the need to raise the money to pay for the campaign. Most candidates had developed reputations in other fields, and had only to announce their candidacy, and make speeches. People would flock to hear those speeches, which were often fairly thoughtful and erudite, and newspaper reporters would transcribe and publish every word. People bought the newspapers that provided the most complete coverage of campaigns, and the most complete, accurate transcriptions.

In those times, there was not even a Congressional record of the proceedings of Congress. Newspapers sent reporters to record the proceedings, and published complete records for public sessions. The same was true of major trials, which were often reported verbatim. They could afford to do it because there was a demand for political information of all kinds.

But that changed. First, newspapers became partisan, and their messages more predictable, and therefore, less interesting. At the same time, candidates began making speeches that were less policy analysis and more appeals to emotion, which also made them less interesting. People bought fewer newspapers filled with political and legal articles. They turned away to their private affairs. At the same time, more government tax collections and spending meant more people feeding at the trough of the public purse, and more people began to vote their pocketbooks rather than for what was good for the country. Newspapers found they could charge for political advertising, and began withholding free media coverage from candidates who didn't pay for a proportional amount of advertising. This made it necessary for candidates to raise and spend more money to get elected, and also provided incentives for special interests to contribute those funds, expecting favorable treatment or at least "access".

As more and more civic functions came to be performed by full-time professionals, volunteerism declined. People would rather vote for taxes (on someone else) to pay full-time workers, than do their parts in doing the work themselves. The professionals encouraged this attitude, since volunteers were seen as competitors at an unfair wage. But while the economic theory of comparative advantage might suggest it is more efficient for citizens to work at what they do best, pay taxes, and hire public employees to do the work, in practice this doesn't work. Once the trend to professionalism gets under way, volunteerism falls off faster than government services can expand, no matter at what level of taxation. There is simply no substitute for personal involvement by almost every citizen in conducting public affairs at his or her own expense.

The process we have seen over the last two centuries has precedents in history, which were studied by the Founders, and they foresaw that the process would probably occur as it has. The process is corruption.

"Political corruption begins with every voter who votes his pocketbook instead of for what's good for the country. There is little difference between the selling of his vote by an elected official and the selling of his vote by a voter, to whatever candidate promises him some benefit."

That is our predicament. It is up to us to decide what to do about it.

Arming America

Arming America: The Origins of a National Gun Culture
by Michael Bellesiles

Bellesiles and his thesis has been discredited, but for those interested in pursuing the subject in more depth, and with more reliable sources, start at , and see particularly the collection of books by James B. Whisker, a Professor of Political Science at West Virginia University, the Whisker Militia Treatises, at , which shows clearly the falsity of Bellesiles thesis and supports the high level of militia activity and firearms usage with an abundance of evidence that Bellesiles conveniently chose to ignore. Any serious study of the subject needs to begin with Whisker's work.

Mission of this blog

My reviews of the works of others are growing too extensive to fit well on any of my websites, so I decided to start a blog dedicated to those writings, to which I can link from my sites.

To get a sense of my reading interests, see my recommended reading lists at: