"THE MILITIA OF THE SEVERAL STATES"

Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).

"THE MILITIA OF THE SEVERAL STATES"
GUARANTEE THE RIGHT TO KEEP AND BEAR ARMS
PART 3 of 6

Dr. Edwin Vieira, Jr., Ph.D., J.D.
September 21, 2005
http://www.newswithviews.com/Vieira/edwin18.htm

Continuing the analysis of the Militia in the Constitution begun in PART ONE and PART TWO of this commentary, we turn to...

3. The roles of the States, Congress, the President, and the Courts with respect to "the Militia of the several States". By incorporating "the Militia of the several States" as they existed and operated prior to its ratification, the Constitution makes several matters perfectly clear:

(a) The States. The Constitution recognizes and permanently includes as part of its federal system only "the Militia of the several States". It neither recognizes nor creates any "Militia of the United States" at all--because no such militia ever existed, and the Founding Fathers evidently desired that no such militia be formed. True, "the Militia of the several States" may be "call[ed] forth" by Congress "to execute the Laws of the Union, suppress Insurrections and repel Invasions"; "such Part of them as may be employed in the Service of the United States" for those purposes may be "govern[ed]" as Congress directs; and "[t]he President shall be Commander in Chief * * * of the Militia of the several States, when called into the actual Service of the United States". Article I, Section 8, Clauses 15 and 16; and Article II, Section 2, Clause 1. But even when temporarily "call[ed] forth", "govern[ed]", and subjected to the President's command "in[ ] the actual Service of the United States", "the Militia of the several States" nevertheless retain their identities and natures as permanent State institutions. The Constitution authorizes neither Congress nor the President to do anything that detracts from, let alone contradicts, these identities and natures.

For that reason, the Constitution authorizes neither Congress nor the President to employ the Militia so as to attack, subvert, or in any other way undermine any State's existence, powers and authority, or her "Republican Form of Government"--or to refuse to employ the Militia to protect those attributes. None of "the Militia of the several States" can be used, actively or passively, against any of "the several States".

Although the Constitution recognizes "the Militia of the several States" as State institutions, the States themselves cannot dispense with the Militia, in whole or material part, because the Constitution presupposes the permanence of the Militia, and the Constitution is "the supreme Law of the Land", which all State officials "shall be bound by Oath or Affirmation, to support". Article VI, Clauses 2 and 3. If the States could dissolve their Militia or allow them to fall into decrepitude, could disregard the Militia's historic principles, could deprive the Militia of their historic purposes and functions, or could deny the Militia the means necessary to perform those purposes and functions, the States could thereby
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