This article was prompted by Stephen Peterson’s March 16, 2023 article at GraniteGrok.com, entitled “New Hampshire Constitutional Militia.” Peterson referred to the essay by Edwin Vieira, which is reprinted in the book by Daniel McGonigle.
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Vieira has a very boots-on-the-ground approach, in which every able-bodied person should join in the effort to defend the nation and the Constitution.
In a Comment to Peterson’s article, I invited all Grokkers (and all NH cops) to come to my house in Concord, NH, on March 19, 2023, for a discussion of the matter. Nobody showed up, but below is the Handout we would have used to investigate what can actually be done by private militias.
Three things seem to stand in the way of our becoming Vieira-type troops:
- Per NH Statute 110-B:3, II, “the governor may call for and accept from the unorganized militia as many volunteers as are required for service in the national guard, or the governor may direct the members of the unorganized militia or such of them as may be necessary to be drafted into the national guard.” (Well, that will quickly put paid to your private militia.)
- Per federal law, codified at 18 USC 2384, if citizens conspire — merely conspire — “to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof,” they risk arrest as felons. (The fact that “the authority thereof may be illegitimate” is a nice talking point, but it won’t save you.)
- Per the 2004 US Supreme Court ruling in Hamdi, a US citizen — such as Hamdi and Jose Padilla — can be categorized as an enemy combatant. (I’ve included below the little interaction that occurred during the US Senate hearings for Brett Kavanaugh’s confirmation as a justice, but I don’t agree with the rumor that Graham was trying to prove that Hamdi is icumen-in.)
I don’t plan to debate these three obstacles here today. The present article is but a vehicle for passing along the quotes I had gathered for a handout. See below. It’s bad enough that the March 19 chocolate cake went to waste (or to waist, as the case may be); the research is salvageable!
Bottom line: the Second Amendment is surprisingly insufficient to make the citizenry a force for defending, by itself, the Constitution. Quoting 2A and puffing up one’s patriotic feelings is not enough. I may be wrong; please correct me in the Comments.
Here is the “attachment.” If you print it in Garamond font, size 11.5, it will fit nicely onto the front and back of one letter-size page.
RELEVANT QUOTES ON MILITIAS AND MILITARY COMMISSIONS — MARCH 19, 2023 from US Constitution, federal and New Hampshire statutes, court rulings. MaxwellMaryLLB@gmail.com
Article I, section 8, clause 11: “[Congress shall have the Power] to declare war. Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions.”
Article I, section 8, clause 16: “[The Congress shall have the Power]… To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress….”
Article II, section 3: “[The President] shall take care that the Laws be faithfully executed.”
Article IV, section 4: “The United States shall guarantee to every state in this Union a Republican Form of government, and shall protect each of them against Invasion; and on Application of the [State] Legislature, against domestic Violence.”
Second Amendment: “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.”
NH statute, revised; 110-B:1 (2018) I. “The militia shall be divided into 3 classes, namely the national guard, the state guard, and the unorganized militia. …IV. The unorganized militia shall consist of all able-bodied residents of the state who are 18 years of age or older, who are, or have declared their intention to become, citizens of the US, and who are not serving in the national guard or state guard.”
NH statute 110-B:3 Registration and Draft of Unorganized Militia: I. “Whenever it shall be deemed necessary, the governor may direct the members of the unorganized militia to present themselves for and submit to registration at such time and place and in such manner as the governor may prescribe in regulations issued pursuant to this chapter.”
- “Whenever it shall be necessary in case of invasion, disaster, insurrection, riot, breach of the peace, or imminent danger thereof, or to maintain the national guard at the number required for public safety or prescribed by the laws of the United States, the governor may call for and accept from the unorganized militia as many volunteers as are required for service in the national guard, or the governor may direct the members of the unorganized militia or such of them as may be necessary to be drafted into the national guard.”
Resolution introduced into NH House 2009 sponsored by Reps. Itse, Ingbretson, Comerford, Senator Denley: “That the several States… are not united on the principle of unlimited submission to their General Government; but that, by a compact…, they constituted a General Government for special purposes, …reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that the gov’t [is not] the final judge of the extent of the powers delegated to itself….” [This was inspired by Kentucky and Virginia Resolutions of 1798]
1878 The Posse Comitatus Act: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army … as a posse comitatus … to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” (10 USC 341 for foreign troops in US.) Note: today under the Pentagon’s National Guard Bureau’s Partners for Peace, begun in 1990s, there are foreign troops in every state. New Hampshire’s partner is El Salvador.
Page 2. Federal law, codified at 18 USC 2384: “If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, …. they shall each be fined under this title or imprisoned not more than twenty years, or both.”
NH Revised Statute sec 104:28 “Who wears or displays without authority any uniform or badge by which a sheriff, officer, or investigator is lawfully identified … shall be guilty of a class B felony.” [There’s a list of each state’s laws on “prohibiting private armies, i.e., militias, at public rallies,” at Law.Georgetown.edu.]
Treason 18 USC 2381: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the US.”
Presidential Decision Directive 39, June 21, 1995: [Clinton, after the OKC bombing]: “The United States regards all such terrorism as a criminal act and will pursue vigorously efforts to deter and preempt, apprehend and prosecute… individuals who perpetrate or plan to perpetrate such attacks….”
In Home Building and Loan Association v Blaisdell (1931) SCOTUS said: “Emergency does not create power. Emergency does not increase granted power …. The Constitution was adopted in a period of grave emergency. Its grants of power … were not altered by emergency.”
MILITARY COMMISSIONS. Hamdi v Rumsfeld, 2004. Note: Hamdi was a US citizen captured in Afghanistan and accused of aiding the enemy. SCOTUS ruled that a US citizen can be designated an enemy combatant. Jose Padilla was included in Hamdi case. Under the Detainee Treatment Act of 2005, the decision as to whether he is a combatant can be made by an executive branch’s Combat Status Review Tribunal. (Sen Graham: “What’s the name of the case, if you can recall, that reaffirmed the concept that you can hold one of our own as an enemy combatant?” SCOTUS nominee Kavanaugh “Hamdi.”)
The Military Commissions Act of 2009 is “to authorize trial by military commission for violations of the law of war, and for other purposes”. The MCA was prompted by Hamdan v Rumsfeld, where a Gitmo plaintiff asked for rights, and in 2009 Boumedienne. For War Crimes Act, see 18 USC 2441. (Note: ‘Military Tribunal‘ is not the same as Military Commission. A tribunal is part of the UCMJ for soldiers.)
FDR issued a Proclamation: “all persons who are subjects, citizens or residents of any nation at war with the US [and who enter the US] through coastal or boundary defenses, and are charged with committing … sabotage, espionage shall be subject to the law of war and to the jurisdiction of military tribunals”.
Military Tribunals, 1942. (US president, FDR, used a military tribunal to convict six German saboteurs; caught in US. The decision of a justice matter, normally held in a court, was taken by the executive branch. The saboteurs were enemies of the US, as Germany and the US were at war. On the battlefield, the president could order them killed. But did he have the right to “tribunalize” the captives in the US?)
The US Supreme Court in Ex Parte Quirin, 1942, held: “There is a class of unlawful belligerents not entitled to [POW] privilege… And by Article 15 of the Articles of War Congress has made provision for their trial and punishment by military commission, according to ‘the law of war’.” [Quirin is still law.]
POSTSCRIPT — VERDICT.JUSTIA.COM has just come out with an essay by Prof Vikram Amar of relevance to these matters. I will now quote a portion of his essay, verbatim:
In the summer of 2021, the Missouri governor signed into law the state’s so-called “Second Amendment Preservation Act (SAPA),” whose preamble (a section styled as “findings”) declares that the “supremacy” of federal law “does not extend to various federal statutes, executive orders, [etc., that regulate firearms and ammunition in various ways].”…
The district court ruled, among other things, that SAPA’s declaratory centerpiece, §§ 1.410, 1.420, and 1.430, violates the Supremacy Clause because it constitutes an “unconstitutional ‘interposition’ against federal law and is designed to be just that.” From there, the district court reflexively invalidated the rest of SAPA on the ground that no part of the statute was severable from the statute’s interpositional core.
The big problem with the district court’s “interposition” reasoning is that it cuts too broadly, and would essentially prevent a state from engaging in any government speech to register disagreement with federal laws and policies that might violate various limitations in the Constitution. The district court rightly points out (quoting seminal Supreme Court cases) that “states have no power . . . to retard, impede, burden or in any manner control the operations” of the federal government in arenas where the federal government has lawful power. But the declaratory centerpiece of SAPA does no such thing. It does not impede, burden, or control federal operations; it merely makes clear Missouri’s belief that certain federal laws violate the Second Amendment, and that such federal laws will not be respected by, or enforced by, the state. Importantly, §1.430’s words say that ostensibly illegal federal laws will not be enforced “by” the state, not that such laws will not be enforced “in” the state, the latter phrase being one that would suggest active interference by state officials in the efforts of federal officials to enforce federal law.
— end of my except form Prof Amar. You cand “Read More” at https://verdict.justia.com/2023/03/21/what-role-can-states-properly-play-in-resisting-potential-federal-overreach
And don’t forget the unanimous decision in Prinz v United States (1997) — a case that was initiated by Sheriff Richard Mack and which ruled, if not is so many words, that state law enforcement is not the servant of the federal government.
Now here is a 59-minute lecture by Daniel McGonigle, given at Camp Constitution in NH in 2015, on the History of “the Militia” in America
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