Our Alabama Guard Generals
The October 2013 column entitled, “Losing Our Alabama Defense Force” evoked reader comments about the traditional role of militia and how we’ve morphed into the modern nomenclature of “National Guard” further eroding State sovereignty. The dearth of Alabama generals (only about half are State residents) in the Alabama Guard has finally received enough attention to be addressed in Montgomery. Thankfully our State Senate is NOT asleep at the wheel.
It is difficult to pinpoint exactly when and where the National Guard becomes army instead of militia. Much like jettisoning the grammatically correct “United States are” for the politically correct “United States is” the verbal gymnastics speak volumes. The establishment of militia to deter tyranny of armies was largely understood by those who witnessed the use/misuse of armies in Europe as well as the British wanting to suppress militia in the colonies threatening to assert their independence. Those familiar with the “Shot Heard Round the World” understand the reference.
My October 2013 column entitled, “Losing Our Alabama Defense Force” evoked reader comments about the traditional role of militia and how we’ve morphed into the modern nomenclature of “National Guard” further eroding State sovereignty. The dearth of Alabama generals (only about half are State residents) in the Alabama Guard has finally received enough attention to be addressed in Montgomery. Thankfully our State Senate is NOT asleep at the wheel.
Many insisted militia was "failing their mission" - not satisfied with an institution which was never meant to be used for anything more than DEFENSIVE purposes. Some members of the Guard, being recruited for a disproportionately larger amount of service had to be lured with PAY to do more above and beyond their duty/desire of defending lives, liberty, property, family, community, etc. in their State. The historical notion is pay is derived from taxes taken from the people but the loyalty, fidelity or submission of those paid is generally to those who actually cut the check. The traditional distinction is a member of "the militia" becomes a soldier in an “army” when he accepts payment in some currency for his service(s).
Obviously there's nothing WRONG with payment of this sort, it is to help distinguish/illuminate the difference between an army soldier verses a militiaman. This is of greater import in consideration of militia which the founders regarded as being necessary to the security of a Free State discussed in the federalist papers and incorporated into the US Constitution.
The situation we’ve ‘progressed’ into (aided & abetted by federal gun control extremists) insist on the idea a "well regulated militia" means a "select" militia (limited in extent and enlistment) on the one hand; then mocks the idea such an organization could be capable of defending the nation or the more specific necessity to the security of a free State.
In order to defend a State(s) in the coalition you can have an army composed of a limited number of paid professional soldiers whose JOB is to train for battle OR a defense force comprised of citizen soldiers - i.e., militia. If militias are to be effective in the specific defense of a State(s) in the coalition (not the common defense of the nation) it must be an organization which includes the body of citizens capable of bearing arms. The greater part of them will not have anything more than modest training and will NOT be able to train 5 days a week for 8 hours a day. Doing so would be a huge reallocation of resources in the economy of any State and often duplicate the federal effort in addressing the COMMON defense the central govt. is designed and authorized to address. In short, a force composed of a very limited group of citizen soldiers not extensively trained will never be adequate for the common defense of the nation as a whole. Consider Hamilton's text from Federalist 29:
"By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse: "The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."
Hamilton acknowledged his opinion differs with others on the matter. Furthermore Hamilton did not advocate a select well trained militia above the rest over arming the WHOLE of the citizenry. In fact Hamilton's conception of the militia (perhaps even of a WELL REGULATED MILITIA) asserts all apropos citizens will be armed and calls for them to be assembled once or twice a year to VERIFY they’re armed! This very tangible assertion of State sovereignty had to be broken by the champions of central power beyond the authority conferred upon the federal government by States. "The Militia proved inadequate and had to be altered into the National Guard" rhetoric must carry the day to accomplish their ends. Militias did not fail in their well defined role but were impediments to be removed. Militias were considered (even in England) as “The Peace Establishment" precisely because the militia could NOT be used for foreign wars nor used to commit treason - i.e., acts of war against a State(s) as observed in 1861.
The militia morphed into the "National Guard" to render it something more suitable for use in OFFENSIVE warfare via the Dick Act(s) which redefined and divided into TWO classes. One being the "Organized Militia" (which became the "National Guard") federal gun control advocates like to assert as the "Well Regulated Militia" yet there's no connection. The Dick Act acknowledged the remaining population of able bodied males constitutes the "Unorganized Militia" as the other class. This meant the WHOLE of the militia was bifurcated into an "organized" part and an "unorganized part" - more an effort in obfuscation to justify the nomenclature of “National Guard” which is a contradictory term blurring the issue of the specific defense of a State and providing the common defense of the coalition.
The 3 purposes for which the militia may be called forth provides no justification for using militia OUTSIDE the coalition of States. SCotUS decision in Perpich v. the Department of Defense applies here. They explicitly acknowledged Governor Perpich CORRECT in pointing out MILITIA may NOT be used for any FOREIGN purpose; deciding to IGNORE the truth/observation on the lengthy history of the manner in which the definitions and “regulation” of the militia has changed over time. Furthermore, Gov. Perpich did NOT object to the "Dual Enlistment Form."
Pointing out every applicant to the National Guard signs this Form agreeing (s)he may be moved into the ARMY at a moment's notice whensoever Congress decides to move them from their "National Guard" unit (called a "State Militia" unit by SCotUS) if they’re inside their State and have NOT been called up by Congress. But, as soon as Congress decides to do so - the members of the Guard are no longer MILITIA when Congress calls them up and decides to deploy them.
Text in Art. 1, Sec. 8, Cl. 15 makes it clear militia may only be called forth for any one of the 3 distinct and defined purposes: to repel invasions, suppress insurrections and/or enforce the laws of the Union. Long standing readers of my column require little explanation to precisely how this is conducive to the security of a Free State. There is obviously a huge conflict of interest involved in Congress raising armies which could be used to commit treason (acts of war) against a State(s) in the Union as we observed in Maryland, April 1861. Although one would be foolish to assert this was included solely for the purpose of enforcing laws for the collection of revenue; certainly collection of revenue was foremost on the minds of the authors.
Recall Shay's Rebellion brought about by Massachusetts’ attempt to collect taxes in gold and/or silver (or foreclosures on land for those in arrears) to pay the Congress established by the Articles of Confederation and Perpetual Union. Specifically gold/silver would be useful in repaying debts owed to soldiers who fought in the Revolutionary War. Indeed the attempt to foreclose on the property of Daniel Shays (unable to pay his taxes as one of those soldiers waiting to be paid) triggers the rebellion. There is no better way to assure tax laws more closely represent the will of the people than to make the people themselves, as the militia, responsible for enforcing collection of those taxes.
All this applies to our 2nd Amendment Civil Right; the key distinctions between the words "MILITIA" as written by the authors of the Constitution and an "ARMY" as understood by them is crucial. It is absurd to suggest they are the same things or were understood as such when the authors of our Constitution and Bill of Rights insisted well regulated militia necessary to the security of a free state and standing armies are dangerous to liberty. This is why the different words (militia v. army) are used in the document. A citizen soldier fights to protect his own life, liberty, property, family, community etc., thus may be relied upon to defend a king or government which (s)he perceives as defending those things.
Blackstone (Chapter 13 of the Military & Maritime States) wrote the following about armies:
“The military state includes the whole of the soldiery; or, such persons as are peculiarly appointed among the rest of the people, for the safeguard and defence of the realm.
IN a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitutions, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. The laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it was not till the reign of Henry VII, that the kings of England had so much as a guard about their persons."
It is worthy of note our Constitution proscribed:
1) Armies can be "raised and supported" where appropriations limited to two years; and that it is evident.
2) Militia need only be "called forth" it is NOT regarded as something which needs to be "raised" or "supported" so there is no text on appropriations for that purpose.
Debate on what became the 2nd Amendment in Congress acknowledged guaranteeing the PEOPLES’ (NOT the States’) right to keep and bear arms would prove convenient for Congress in determining how to go about arming the militia. In fact the Militia Act of 1792 required every able bodied white male citizen to purchase a weapon for use in the militia within 6 months of his 18th birthday.
To have a well regulated Militia which is composed of the whole body of able bodied males capable of bearing arms implies general agreement service in the militia is the obligation or duty of all able bodied male citizens. Prof. William Anderson has written on how progressives used gun laws to impede non-whites ability to exercise their 2nd Amendment Civil Right to decrease their ability to defend themselves. Blackstone considered the “Cornerstone of English Law" was founded upon understanding "Allegiance and Protection are Reciprocal Considerations." This idea runs throughout the first chapter of Blackstone's first volume entitled "Of the Absolute Rights of Individuals". In Chapter 13 Blackstone wrote the following on armies:
“To prevent the executive power from being able to oppress, says Baron Montesquieu, it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people; as was the case at Rome, til Marius new-modeled the legions by eliciting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing, then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. Like ours, therefore, it should wholly be composed of natural subjects; it ought only to be enlisted for a short and limited time, the soldiers also should live intermixed with the people; no separate camp, no barracks, no inland fortresses should be allowed. And perhaps it might be still better, if, by dismissing a stated number and enlisting others at every renewal of their term, a circulation could be kept up between the army and the people, and the citizen and the soldier be more intimately connected together.”
Sound observations and recommendations for soldiers in the ARMY and provides protections against the dangers of maintaining standing armies - however imperfect the resulting protection may be. Some argue Hamilton seems bent on obfuscating the distinctions between an army and a well regulated militia in the hopes of construing a well regulated militia as a Blackstone army. One can also acknowledge Hamilton’s concerns about the danger of a militia not sufficiently trained. I find the argument Hamilton wished to give us an army under the nomenclature of a “well regulated militia” which he desired to be a “select” militia more compelling in Hamilton’s references to the security afforded by intermingling MILITIA with the general population echoing of language which Blackstone ascribed to SOLDIERS - and NOT to Militia.
More from Hamilton in Federalist 29 on the subject of the appointment of militia officers by the States as I finally get to point of my column:
“There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous article to instill prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadows of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? (emphasis my own) If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstances of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.”
I have no doubt it was inferred legislatures of the respective States would appoint citizens of their own States as officers of their respective militias; the fact is that there was nothing explicit in the law which REQUIRED them to limit the pool of potential choices to citizens of their own states.
From the Militia Act of 1792:
"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes."
The August 23rd 1787 debate offers further insight on the matter:
"Mr. MADISON moved to amend the next part of the clause so as to read, “reserving to the States, respectively, the appointment of the officers, under the rank of general officers.”
Mr. SHERMAN considered this as absolutely inadmissible. He said that if the people should be so far asleep as to allow the most influential officers of the militia to be appointed by the General Government, every man of discernment would rouse them by sounding the alarm to them.
Mr. GERRY. Let us at once destroy the State Governments, have an Executive for life or hereditary, and a proper Senate; and then there would be some consistency in giving full powers to the General Government: but as the States are not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. He warned the Convention against pushing the experiment too far. Some people will support a plan of vigorous government at every risk. Others, of a more democratic cast, will oppose it with equal determination; and a civil war may be produced by the conflict.
Mr. MADISON. As the greatest danger is that of disunion of the States, it is necessary to guard against it by sufficient powers to the common government; and as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good militia.
On the question to agree to Mr. Madison’s motion, — New Hampshire, South Carolina, Georgia,1 aye, — 3; Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, no, — 8. On the question to agree to the “reserving to the states the appointment of the officers,” — it was agreed to, nem. con.”
In closing, I must type it is truly refreshing to see my State senators actually addressing something of substance and not ‘so far asleep’ as Mr. Sherman warned above to leave this unaddressed. Most will have no clue the significance of what our Senators are trying accomplish and I’m sure I’ll get plenty of unkind comments about yet another difficult to read “THINK” column. Too bad, keep up the good work Alabama Senators!
Postscript: Many thanks to James Hines’ (currently writing a book on these issues) input on this unusually long column with all the quotes he provided. I’d be remiss if I didn’t include one last Hamilton quote he thought apropos: “In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which, instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes “Gorgons, hydras, and chimeras dire; discoloring whatever it represents and transforming everything it touches into a monster.” I still make no apology for sounding this alarm given what we’ve observed unfold these past several score.