28 January 2006

"Guns don't kill people..."

"... bullets do."

Truer words were never spoken. Keeping and bearing arms is a right that goes back to the dawn of tools for mankind and all of our extinct kin. A rock is a weapon, of that there is no doubt, but it can be fashioned into other tools, too. Knives, scrapers, picks, awls and their weapons equivalents knives, hatchets and spears, all are tools with definitive uses and capabilities. Some are more specialized than others, but all serve multiple purposes, depending upon circumstances. In modern times, however, armaments have moved away from the more personal and direct of actually having to chop, mince, slice and dice human flesh, to those effective at a distance. The rationale, and it is an excellent one, is that if you kill or disable an opponent at a distance, they have a harder time getting close to you to do the same. Until, of course, they use the same weapons you do... and that early arms race that started with the simple throwing spear moved up to the atlatl and thenceforth through the ages to MIRV capable ICBMs that could do to goodly sized geographic regions in a few seconds what it would take an ancient Roman army a year to do. Such a time saver!

When attacked, however, the right to respond or counter-attack is inalienable. Similarly, when threatened with deadly force, one has an inalienable right to respond vigorously to stop such threats. Be it a man on man encounter or a state to state conflict, the right to protect when threatened may not be violated. The US Constitution mentions military areas in only a few places, the most famous of which is the Amendment II:

  • 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.
Such brevity! The soul of wit and the object of clarity is to briefly state the obvious. This Amendment, however, must be taken with the other mentions of similar in the Constitution itself. Article I, Section 8, enumerating the powers of Congress, in part:
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

  • To provide and maintain a Navy;

  • To make Rules for the Government and Regulation of the land and naval Forces;

  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

  • 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;
I am sure many scholars have been over this ground, but it is interesting that the Army and Navy are defined separately, and Militia is something that is something that can be under Federal control, but the States have a large role in this. This Militia is specifically stated for the use within the Union to execute its Laws, suppress Insurrections and repel Invasions. So, State run and trained, but to the guidelines set by Congress. The States, then, are to have a separate control authority when these Militias are not required by the Union, but are to be trained according to rules and standards set by Congress. When taken in context with the "raise and support Armies", one begins to feel that the Militias and Armies are two differently oriented ideas. Militias can be collected together into Armies, but separate Armies may also be trained and equipped, presumably, for use outside the Union.

Article I, Section 10, holds the last mention of military forces in the Congress section of the Constitution:
  • No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
In modern parlance, the States may not keep standing Military forces, except those Militias directed by Congress. Further, such States may not keep full or part time Military forces, save in need of rapid reaction forces that would respond faster than the Armies and Militias. And where, pray-tell, will these speedy troops come from?

The Executive has the following power, Article II, Section 2:
  • The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
This is the CinC language, simple and yet very broad. The President is the Commander of the Army, Navy and States' Militia. Note here, that nothing is said about the speedy forces the States may have that can act without delay.

The Judicial has the following, Article III, Section 2 [bolding mine]:
  • The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
And Section 3:
  • Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

  • The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Elsewhere in the Constitution we get some further mentions. Amendment V:
  • No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In time of War or public danger... you get martial law as normal procedures are not available and military justice is the expected norm, via military courts and trials. Battlefield justice is a harsh thing, but such is life. So if you are part of the forces under Federal control during wartime, you are answerable to military courts. Fair enough, and people caught up in such things are *also* answerable to military justice.

And that is *it*.

Very well, so where does that put the public's right to arms or personal weapons? In the case of Armies, Navy and Militias that is Federally regulated by the Congress. Do note that the States have the right to organize forces in case of invasion or dire circumstances in which the regularized forces cannot respond quickly enough. As these would be purely local forces, the States would have purview to their organization. Remember that all non-enumerated rights are held by the States and the People. As this is a mentioned right of the States, the States actually *do* have this authority. But it is damn hard to get a military force together without a regularized procedure for doing so.

Welcome to the Second Amendment!

As seen the Constitution requires a due process of law and sets of procedures when things get mentioned in it, and the Second Amendment is no different. Indeed the people do have the right to bear arms, and the States have the right to regularize this procedure *and* use these armed citizens as a rapid reaction force! The Constitution is a wonderful document, if only people would not excerpt portions of it to try and prove points, but take the underlying themes it represents and apply them to the cases involved.

So, lets get down to what the States are required to do with arms.

First and foremost, they may not deny arms to the people. That is basic. That said, such individuals who have arms are *required* to serve on notice of the State during times of trouble or Invasion. Further, as the Constitution has set up methodology for other forces, these armed citizens will be required to have discipline, training and order to their use of arms.

You *can* have weapons, but the State makes you responsible for having them *and* enforces regularization of their use. This is *more* than just hunting season folks. The Constitution expects regular forces to be under Federal control and guidelines, and any force fielded by the States to respond to emergencies or Invasion would be expected to behave likewise. Thus there is the need for regularization, command, control, and a system of justice for such forces.

So, what would the States actually *do* to enforce this? I would expect the Founders, coming through the Minutemen and other ad-hoc forces expected something like the following:
  1. Training in the proper use of the arms involved. A citizen would be expected to actually *know* how to properly use such arms as they owned, and have a regular certification procedure and recheck on their capabilities at regular intervals. This includes arms maintenance and upkeep, which would be the responsibility of the owner.

  2. Regularization of forces. Each citizen would be given a place in an established framework to respond under the State authorities in times of crises where Federal response is lacking. As an arms owning citizen you would be answerable to this command and control authority *first* during a crisis. A system of checks and balances for serving would expected. Until regular Federal troops arrived, armed citizens would be expected to form an adjunct military to other local forces, but would be under State control.

  3. System of rules and regulations. This would go not only for the citizen, their arms and their certification of capability, but would also be a uniform justice system set up for emergencies. This would be a State separate law system for these forces until proper Federal Martial Law and its enforcement troops arrived.
With the right to bear arms, comes the responsibility to the rest of the people to serve in times of danger and need. These individuals would *not* be police forces, but a separate military force called on an as-needed basis available only to the State and to stand-down when Federally appointed forces arrived. This citizen force would most likely be expected to cooperate with law enforcement, protect vital services, enforce order and in all ways be answerable to a State defined code of justice for interim periods when normal law is not applicable.

This, most imperatively, is NOT a standing army. It IS a State authorized and Constitutionally allowed way of regulating the use of arms within a State. Yes, you can have that rifle for hunting season... and if a flood washes away 90% of your local police, you will be called upon to enforce State law as you were trained and refreshed to do. If an earthquake happens, you would be expected to help out and guard vital infrastructure, protect workers going out to save lives, and in all other ways serve as a form of law and order until the real thing returns. As an armed citizen that is your *responsibility* under this concept.

The State may NOT infringe upon the people's right to bear arms, but the State may regularize that ownership under codified set of obligations, laws, rules, and enforcement procedures. Actually, if the States had any forethought, this is something they would actively *want* to do. This would mean registration of all arms and DUTY to use them when the people are in time of need as the State directs. If that duty is not followed, the State will have a code of justice set up for such individuals and trials will not be civil trials, but take place under the justice system of such forces. The last line of law and order is an orderly and armed citizenry operating under a State code of justice that is agreed to by all who seek to have arms.

This is *not* vigilante justice. Vigilantes would be tried in such times as this force is called out under the rules governing that force. In times of need it would be expected that the group would operate under its own cognizance, but seek to re-establish its lines of command and control until such time as order is restored, either via the calming of the crisis or the arrival of Federal troops. At all other times, the individuals in this force are considered to be civilians.

I think that the above would, first and foremost, pass Constitutional muster. Rights are maintained, as laid out in the Constitution, but this one is a regularized right that the State has a great say in. Secondly, for those worried about proliferation of weapons, this puts an obligation of competence and responsibility to those actually owning weapons. Third, and finally, I expect that the State would grant exceptions to those not fit for duty, but in need of personal protection with arms. These individuals, however, would *still* need to show competence and have a place and role when things go bad, even if that is just local organization of a nursing home or other place where they live.

Owning a weapon is a right.

Owning a weapon is a responsibility.

Owning a weapon incurs an obligation upon the owner to prove they can responsibly use and maintain that weapon and serve when in times of crisis.

How many of us would have liked to see such groups of organized citizens in the disasters of the last few decades?

These are our friends.

Our neighbors.

Our fellow citizens.

Rights. Responsibilities. Duty.


In the era of asymmetrical warfare, citizens are an asymmetrical response. And then some!


Mad Fiddler said...

It should not be necessary to REGISTER the weapons of a household specifically, IF there are various interlocking provisions that would guarantee:

(a) that each citizen receive training and certification in the safe operation and handling of certain standardized side arms --- i.e., pistols and rifles.

(b) that lists be kept of individuals certified to serve in time of need (i.e., without specific indication as to whether that person actually OWNS a weapon), and that persons generally were required to maintain their certification, just as with CPR and first aid training.

and (c) that local armories, such as for the National Guard, maintain stocks of weapons and ammunition to be distributed to certified citizens in time of need, regardless of whether they OWNED personal weapons of the same sort.

I have a nagging suspicion that there would be occasions in which an invader could simply scan the lists of registered gun owners, round 'em up and shoot'em.


A Jacksonian said...

Mad Fiddler - My thanks!

That sort of thing is amenable on a State-by-State basis, but the individual right is also a responsibility not only for use but defense of community. The Dick Act puts all of those between 18-45 as part of the 'unorganized militia' which looks at State based organization (ie. regularization), but says nothing about the State giving guidelines for the Citizenry. As seen from the years of the founders, this is more along what the Swiss practice and was a recognized part of life of the 18th century and prior to it.

I later look at methodology for this, so that individuals could demonstrate minimal, basic competence (do you know where the safety is? can you hit something less than the broadside of a barn?), but expand it to all martial arts beyond firearms: arms are a general concept and the founders did not do without knives and swords, which would only see their last days in fully mechanized warfare. That said, lethality is lethality and those that take time and effort to practice and hone ancient and honorable martial arts should be an active part of society and determining the best way to defend it. Often it is the discipline and organizational skills of older martial arts that prove more effective in managing numbers of people during a crisis than does a firearm. Civilian organizational skill should be something we ensure is present beyond police and fire departments, less we turn into unorganized rabble in times of danger.

It is not *just* the Right that needs to be secured, but its societal utility and responsibility for taking up and understanding arms. We *used* to do that in this Nation... somewhere that has been lost when rights trumped responsibilities. And it is *all* arms that secures the Nation and our society from the ills of the world, be they homegrown or foreign. Arms used to be a tie that bound society together, and is put that way by all the founders.