It never goes away – the myth of absolute federal supremacy.
I got an email from a Tenth Amendment Center volunteer in Illinois last week. He has been working to get the Fourth Amendment Protection Act introduced there. Passage of the bill would end state cooperation with unconstitutional federal warrantless surveillance. But he’s run into a bit of a snag. The senior attorney for the Senate Democrats told him that “all federal laws supersede state laws.”
Now, of course, the federal government is supreme. The Supremacy Clause in the Constitution makes this clear. But this notion that supremacy means the federal government can do anything it wants any time it wants is simply absurd.
Fact: The federal government is only supreme within its sphere.
Think about a referee in a football game. He is the supreme authority on the football field. But that supremacy doesn’t mean he can go to a baseball game and start calling balls and strikes. The baseball game lies outside of his sphere. He has no authority there.
The Supremacy Clause declares that the Constitution and all laws … “in pursuance thereof” are the supreme law of the land. Any actions that are not “in pursuance thereof” lie outside of the sphere of the federal government. They are not supreme. In fact, Alexander Hamilton called such laws “void.”
Hamilton laid out the scope of the federal government’s supremacy in Federalist #33.
“If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed….But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution.”
The Constitution limits federal supremacy to those objects falling within the general government’s delegated powers and not one iota beyond them.
St. George Tucker wrote the first extended, systematic commentary of on the Constitution shortly after ratification. For nearly half a century, it was one of the primary sources for law students, lawyers, judges and statesmen. His commentary echos Hamilton’s explanation in the Federalist.
It may seem extraordinary, that a people jealous of their liberty, and not insensible of the allurement of power, should have entrusted the federal government with such extensive authority as this article conveys: controlling not only the acts of their ordinary legislatures, but their very constitutions, also.
The most satisfactory answer seems to be, that the powers entrusted to the federal government being all positive, enumerated, defined, and limited to particular objects; and those objects such as relate more immediately to the intercourse with foreign nations, or the relation in respect to war or peace, in which we may stand with them; there can, in these respects, be little room for collision, or interference between ‘the states, whose jurisdiction may be regarded as confided to their own domestic concerns, and the United States, who have no right to interfere, or exercise a power in any case not delegated to them, or absolutely necessary to the execution of some delegated power.’
That, as this control cannot possibly extend beyond those objects to which the federal government is competent, under the constitution, and under the declaration contained in the twelfth article (Tenth Amendment), so neither ought the laws, or even the constitution of any state to impede the operation of the federal government in any case within the limits of its constitutional powers. That a law limited to such objects as may be authorized by the constitution, would, under the true construction of this clause, be the supreme law of the land; but a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void. [Emphasis added]
In a nutshell, the federal government does exercise supremacy, but only within its limited sphere. It is not an anything and everything proposition.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE
I can’t tell you how many times over the last week or so that I’ve heard somebody say, “I support the Second Amendment, but…”
This is a prime example of the principle that you can pretty much ignore everything a person says before the “but.”
They don’t mean it.
If there is a “but” in a statement of support for the Second Amendment, the person doesn’t really support the Second Amendment.
I can’t emphasize this enough. There is no “but” in the Second Amendment. It simply says, “shall not infringe.”
Period.
End of story.
This leads me to a second important point. I hear stuff like this all the time. “The Second Amendment does not give you the right to own an AR-15.”
This is actually true. It doesn’t give you the right to own an AR-15. The Second Amendment doesn’t give you any rights at all. It actually prohibits the federal government from infringing on a right you already have – the right to keep and bear arms. And yes. That includes an AR-15.
The first 10 amendments are restrictions on the federal government. They really should have called the Bill of Rights the “Bill of Restrictions.” That would have eliminated a lot of confusion.
Here’s the key point: these restrictions on federal power are absolute. There are no exceptions. There are no asterisks. There are no “buts.”
A newly published document from America’s founding offers a clue.
When interpreting the Constitution, judges and scholars consider what people said about the document around the time it was adopted. Writings by the Constitution’s advocates explaining its meaning to the general public are particularly helpful, because Americans relied on those explanations in deciding to ratify the document.
The most famous writings of this kind were penned by Alexander Hamilton, James Madison, and John Jay and collected as “The Federalist.” But there were many others. Among the most important were newspaper op-eds produced by Tench Coxe.
Few people know of Coxe today, but during the founding era he was famous. He served in the Confederation Congress. After the Constitution was ratified he became our first assistant secretary of the treasury, working directly under Alexander Hamilton.
Public release of the proposed Constitution on Sept. 17, 1787 ignited a massive public debate. Opponents argued that if the instrument were ratified it would create an all-powerful central government. Coxe supported the Constitution — and like Hamilton, Madison, and Jay, he was frustrated by opponents’ misrepresentations.
Coxe wrote a series of op-eds to accurately explain the Constitution’s legal effect. His informal style was much easier to understand than the scholarly tone of The Federalist, and his articles became extremely popular.
Many of Coxe’s op-eds were republished long ago, but new ones sometimes surface. The editors of the Documentary History of the Ratification of the Constitution recently issued new volumes that include four productions by Coxe previously known to only a few dedicated scholars.
In a Pennsylvania Gazette article published February 20, 1788, Coxe addressed the right to keep and bear arms: “The power of the sword, [opponents] say … is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY … Who are the militia? are they not ourselves[?].”
Coxe added, “The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people.”
In other words, all able-bodied adult men have the right to keep and bear arms — not just law enforcement and the military. (Since ratification of the 14th Amendment, women also possess the right.)
Coxe also addressed the kinds of arms included: “Their swords, and every other terrible implement of the soldier, are the birth-right of an American.” In other words, the right to keep and bear includes military arms, not just hunting pieces. Rifles such as the AR-15 (misleadingly branded “assault weapons”) are protected — not despite the fact that they are military weapons, but precisely because they are military weapons!
Coxe’s view is hardly surprising to those of us who study the founders: The Revolutionary War had ended only five years before. If American citizens had not possessed military-style weapons, we would have lost.
Coxe wrote further, “Congress have no power to disarm the militia. What clause in the state or federal constitution hath given away that important right[?]”
This passage was composed well before the Second Amendment was proposed. Even then, Congress had no power to disarm the people. This was part of Coxe’s wider argument that federal powers were strictly limited. In other op-eds, Coxe listed many other matters outside the federal sphere and reserved exclusively to the states: education, social services, agriculture, most business regulation, and others.
Despite the fact that Americans relied on such representations when ratifying the Constitution, the federal government now asserts almost unlimited authority. Since politicians always seek to expand their power, that is understandable. Unfortunately, writers on the Constitution often pervert history and constitutional meaning to provide “cover” to the politicians. An example is the ludicrous claim — promoted by some leading law professors — that the Constitution’s Commerce Clause granted Congress vast power over our national life.
Tench Coxe’s writings provide a useful corrective. They are valuable reading for anyone who wants to understand what the Constitution actually says.
Law enforcement lobbyists always oppose asset forfeiture reform, generally relying on the claim that seizing people’s stuff serves as a valuable crime-fighting tool. But a recent study conducted by a Seattle University economist for the Institute of Justice casts serious doubts on this claim, and many others touted by supporters of asset forfeiture.
The study found that increased forfeiture proceeds do not translate to an increase in the number of crimes solved despite the claim that they give law enforcement more crime-fighting resources. Nor do forfeiture proceeds correlate to lower the levels of drug use in the community. Furthermore, the study supports the belief that asset forfeiture leads to “policing for profit.” It revealed that forfeitures tend to increase when local economies struggle, suggesting law enforcement agencies use forfeiture money to plug budget holes.
Dr. Brian Kelly authored the study.
“These results add to a growing body of evidence suggesting that forfeiture’s value in crime fighting is exaggerated and that police do use forfeiture to raise revenue,” he said. “Given this evidence and the serious civil liberties concerns raised by forfeiture, forfeiture proponents should bear the burden of proof when opposing reforms that would keep police focused on fighting crime, not raising revenue.”
The study used local crime, drug use and economic data from a variety of federal sources with more than a decade’s worth of data from the Department of Justice’s equitable sharing program.
The scope of the federal asset forfeiture program is staggering. Between 2001 and 2017, the feds took in close to $40 billion, and the funds’ net assets have surpassed $4 billion in every year since 2013. Between 2000 and 2016, the federal government made more than 660,000 disbursements to state and local law enforcement agencies totaling over $6.8 billion.
Cops claim asset forfeiture proceeds make them more effective crime fighters. They insist additional resources allow them to purchase additional gear and fund special programs. But the study suggested that “forfeiture does not help police solve more crime. The results of these analyses were statistically insignificant at conventional levels, suggesting additional forfeiture revenue does not translate into more crimes solved.” And it doesn’t appear to lower levels of drug use either – one of the oft-stated claims made by police lobbyists supporting forfeiture.
For none of these illicit drug use measures did I find increases in equitable sharing proceeds led to subsequent reductions in use. In short, to the extent forfeiture advocates hope increasing enforcement through forfeiture will reduce drug use, this does not appear to be happening.”
While federal asset forfeiture doesn’t fight crime, it does incentivize state and local police in states with more stringent asset forfeiture procedures to circumvent their state laws and collect funds through the federal program.
“Equitable sharing may also circumvent democratic controls in potentially allowing state and local law enforcement to evade state laws that make forfeiture less lucrative or more difficult. A number of states allow agencies to keep less than 80 percent of forfeiture proceeds or offer more robust protections for property owners; a few have even abolished civil forfeiture entirely. Where a state does not expressly restrict equitable sharing participation, state and local agencies may seize on this loophole.”
A 2018 study bears this out. It found that “on average, agencies in states with the lowest financial incentives and the greatest protections for property owners took in more than twice as much equitable sharing money per agency as agencies in states with the highest incentives and poorest protections.”
This is why it is imperative that state asset forfeiture reforms include provisions to withdraw the state from the federal equitable sharing program.
In a nutshell, the study shows police arguments for forfeiture are basically all lies.
Institute of Justice senior legislative council Lee McGrath puts it more generously, saying the study proves it possible to undertake much-needed asset forfeiture reform without jeopardizing police effectiveness.
“Congress should abolish equitable sharing, and in the meantime, states should opt out of the program. And lawmakers should eliminate the financial incentives in both state and federal forfeiture laws that encourage the pursuit of revenue over the pursuit of justice.” [Emphasis added]
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE
Many people simultaneously claim to support the Second Amendment while insisting the federal government should be able to ban “military-style weapons.” These are actually mutually exclusive positions. In fact, the whole purpose of the Second Amendment was to ensure the people would always have access to “weapons of war.”
On February 14, 2018, Nicholas Cruz shot and killed 17 students from Marjory Stoneman Douglas High School in Parkland, Fla. Cruz, 19, had been suspended from the school for disciplinary reasons. Despite a long history of bad behavior, as well as attention from law enforcement, Cruz was not treated as a legitimate threat. In an attempt to reduce the school-to-prison pipeline, the district failed to report activities and generally kept him under the radar of local law enforcement agencies.
Despite government failures at both the local and federal level, the public debate predictably turned to the issue of gun control with specific focus on the ban of “military style” rifles, or “assault rifles,” as they are often called. In one school, students were instructed to write letters to representatives asking them to implement stricter gun control regulations.
A common refrain from both sides of the debate is, “No one is saying that military weapons should be in the hands of civilians.”
Former President Barack Obama said, “Weapons of war have no place on our streets,” and, “our law enforcement officers should never be outgunned.”
Many conservative media pundits agree. In the process, they concede a crucial point that was a central reason for the ratification of the Second Amendment: The People must have the means by which they can resist a tyrannical government – means rendered ineffective if we surrender the right to be on a level playing field when it comes to firearms.
As Ryan McMaken explained in a recent article, the origins of the militia trace back to 17th century England when Americans resisted the standing army sent by the king to crush dissent. McMaken shares the insight of British historian Marcus Canliffe regarding the origins of American military institutions and the compromises reached between a centralized military capable of suppressing dissent and a reasonable force needed to maintain order:
“A compromise was reached. First, a small regular force was to be maintained: this was the actual foundation of the British standing army. Second, there was to be a nationwide militia, composed of civilians who would — as in earlier days — be summoned in time of need. The militia, however, was to be under civil law, and to be organized locally by the lord lieutenant of each county. It was thus decentralized and divorced from royal control.”
In the colonies, standing armies were viewed with skepticism (hatred, actually), and this was especially so after the British Army was sent as an ultimate enforcement mechanism for the various taxes and other acts imposed on the colonies by the Crown. As the Constitution was being discussed and debated, one of the most hotly contested objects relating to the powers of the new Congress was its ability to raise armies.
During the Virginia Convention, Patrick Henry famously observed that “A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment?”
Henry went on to say that “the clause before you gives a power of direct taxation, unbounded and unlimited, exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all places purchased for the erection of forts, magazines, arsenals, dockyards, &c. What resistance could be made?”
Henry’s denunciation clearly and emphatically rejected the centralization of power. He feared to give what he called a “central government” the power over both the sword and the purse. He observed that any attempt to restrain government in such an instance “would be madness” and thundered “you will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment”. Henry concluded this opening barrage by asking “of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.”
This proclamation by Henry provides a succinct summation of the general beliefs of a large portion of Americans during the ratification period, a belief which led directly to the establishment and adoption of the Second Amendment.
Most States, Virginia included, ratified the Constitution on the basis that “further declaratory and restrictive clauses” upon the general government should be added. And among the specifics, Virginia asserted in her ratification instrument that “the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State.” [Emphasis added]
Virginia declared as a condition of ratification that “standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.” [Emphasis added]
Likewise, New York, as a condition of ratification, insisted very similarly to Virginia that “That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.”
Clause XIII of the Pennsylvania Declaration of Rights guarantees “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” [Emphasis added]
Suffice to say that the founding generation had an immense and universal fear of standing armies. James Madison explained that “a standing military force, with an overgrown Executive will not long be safe companions to liberty.” St. George Tucker wrote the first systematic commentary on the Constitution. He provided further context to the right to bear arms and its role in preventing standing armies when he pointed out, “Wherever standing armies are kept up, and when the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” A more thorough discussion of these concepts can be found HERE.
The Second Amendment thus came about as a means of preventing the need for standing armies by keeping “the militia,” or as George Mason asserted “every able bodied person,” under the auspices of the individual states – in other words, out of the immediate control of the general government.
In his book The Founders’ Second Amendment, Stephen P. Halbrook describes Pennsylvania Senator William McClay’s concerns as written during notes from debates that would result in the enactment of the 1792 federal Militia Act; namely, that Alexander Hamilton and his faction were instigating war with American Indians and foreign nations to justify raising an army that would “awe our Citizens into submission.”
Roger Sherman of Connecticut commented that man had an essential right “to resist every attack upon his liberty or property, by whomsoever made.” [Emphasis added.]
The intent of the Constitution and historical background are irrefutable: a civilian, decentralized force was viewed as the optimal means by which forces loyal to a king, or central government could be held in check, should they become tyrannical in nature. The government, the media and the education system have successfully indoctrinated the people into believing that their safety lies in their ability to defend themselves but only extends so far as to render us subservient to the capabilities of the government to defend itself from us.
In other words, the polar opposite of the purpose of the Second Amendment.
In 1794, George Washington marched troops into Pennsylvania, absent the required request from the governor, to quell a rebellion over a Whiskey Tax. The Whiskey Rebellion came about after the urban/Hamiltonian faction of government used its power to impose a tax on its opposition, the agrarian/Jeffersonians. When the rebellion occurred, the federal government used its might to suppress opposition in a manner in contravention to the law.
From Wounded Knee to Waco, we can see what happens when a civilian population is unable to defend itself from government. Worldwide, over two hundred million lives have been lost after governments disarmed their citizenry.
Yet we continue to buy into the insane notion that “We the People” are incapable of bearing arms equal in power and effectiveness of that of the military, the standing army. Even the definition of commonly-used firearms has been changed to fit the modern anti-gun narrative:
In his 1828 dictionary, Noah Webster described a musket, the weapon used by colonial militias, as “a species of firearms used in war.” In other words, it was once a given that civilians, i.e. the militia, would have the very same firearms as the military.
Merriam Webster recently changed its definition of “assault rifle” to the following: any of various intermediate-range, magazine-fed military rifles (such as the AK-47) that can be set for automatic or semiautomatic fire; also : a rifle that resembles a military assault rifle but is designed to allow only semiautomatic fire (emphasis added).
A federal court in Massachusetts recently held that such rifles are not protected by the Second Amendment and may lawfully be subject to regulation, and even an outright ban. The ruling is problematic, however, for several reasons, the most blatant being a federal court was ruling on a state firearms law. Under the Constitution, as ratified, they have no legal authority to do so. According to the Tenth Amendment, this matter was reserved to the states when they ratified the Constitution.
Second, the Second Amendment doesn’t apply to any model or type of weapon; it applies to the general government, meaning Congress. The Amendment is not a means by which the right to keep and bear arms was granted to the people and the states. It is a restriction against the general government prohibiting it from regulating firearms at all.
Note the language used in the above case by Massachusetts Attorney General Maura Healey:
“Today’s decision upholding the Assault Weapons Ban vindicates the right of the people of Massachusetts to protect themselves from these weapons of war…and we will not be intimidated by the gun lobby in our efforts to end the sale of assault weapons and protect our communities and schools.”
Those seeking to restrict the right to “weapons of war” cite D.C. vs. Heller, in which Justice Antonin Scalia explained that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” What the Court is implying is that “assault rifles” are not subject to Second Amendment protection, which is, again, a total fallacy given the history and intent of the Constitution as ratified.
Rifles that simply look like military rifles are banned in many states, or at least must be registered. And now we are seeing bans in local communities as well. We have become so conditioned to this false notion that civilians should not be equally as well armed as the standing army the founders so distrusted, that now we are accepting bans on guns that simply resemble such weapons.
Patrick Henry’s worst fears have materialized and the general public, uneducated on their own history, is largely clueless.
Tenche Coxe writing in The Pennsylvania Gazette, Feb. 20, 1788, asked “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom?” He continued by affirming that “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
With the average American gleaning their “understanding” of the Second Amendment in particular, and American history in general, from agenda-driven academics and talking heads in the media and on talk radio, such basic arguments are being capitulated. As a result, we are in the process of surrendering a fundamental tenet – our ability to defend ourselves from personal assault as well as from a proven threat by the very government imposing these unlawful restrictions. Our founders are rolling in their graves.
Note: Carl Jones contributed to this article. He is a former active duty U.S. Marine, and a Certified Firearms Instructor. He is a contributing writer for the Abbeville Institute and a member of the Society of Independent Southern Historians.
Suzanne is a licensed attorney who quit her practice to raise her children. In 2013, she left California to enjoy the peace and freedoms available in a remote location in the mountains of North Eastern Utah. She makes radio appearances, hosts a show and speaks on principles of federalism, history and liberty. She can be reached at suzanne@littel.comhttps://www.suzannecsherman.com/
My first article observed that probably the greatest contribution of these three new volumes is reproduction, in indexed and easy-to-use hard copy form, of four essays by Tench Coxe.
Coxe was a Pennsylvania businessman, economist, and member of the Confederation Congress who later served as our first assistant secretary of the treasury. During late 1787 and throughout 1788 he wrote a series of essays urging the Constitution’s ratification. Coxe wrote under several pseudonyms, but all four essays in the new volumes were signed “A Pennsylvanian.”
Coxe’s essays were widely popular, and they unquestionably helped reconcile the American people to the new Constitution. Their analysis of the Constitution’s meaning help us reconstruct the original understanding behind the document.
My last article noted how the “Pennsylvanian” essays, particularly the third, explained the limits of federal power. The third also contains information useful for understanding the Second Amendment. That amendment provides that “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.”
Discussion of the right to keep and bear arms was not plentiful during the ratification debates. That is one reason opponents of the individual right to keep and bear arms could maintain for so long that the Second Amendment guarantees only a state power against the federal government. Specifically, opponents argued that the term “militia” refers only to the relatively small body of soldiers actively under arms and supervised by each state.
Advocates of the “individual right” theory countered that during the Founding Era the term “militia” referred to the citizenry generally, or at least to all able-bodied men between certain ages. This position was supported by James Madison’s Federalist No. 46, in which he referred to an American “militia amounting to near half a million of citizens with arms in their hands.” (The number “half a million” approximated the number of able bodied men out of the population of the time.) Alexander Hamilton’s Federalist No. 29 provided some support for the “individual right” interpretation as well.
But still, these writings did not state unequivocately that all able-bodied males were in the militia; to conclude that, one had to make inferences.
However, the writings of Tench Coxe were more direct. In his third “Pennsylvanian” essay he wrote as follows: (Capitalization and italics are his.)
The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American. What clause in the state or federal constitution hath given away that important right . . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people.”
This passage leaves nothing to inference: Coxe states explicitly that the militia consists of every man from 16 to 60 years of age.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: https://i2i.org/author/rob/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado’s Independence Institute.
Two hundred and twenty-seven years ago this past May, the U.S. Congress passed the Militia Acts of 1792. This pair of bills authorized the president to lead the state militias in war and to conscript all able-bodied free men to fight with self-provided arms and munitions.
To a modern American living in the midst of an empire with a permanent military presence both here and abroad, there might be little reason to acknowledge this anniversary. However, it offers an example of how the founders believed military defense and war should be handled, and why so many modern arguments against civilian gun ownership don’t match the history.
The first Militia Act was passed on May 2, followed shortly thereafter by the second Act on May 8. The first act gave the president the power to call up the militia “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe.” The second Act called on every “free able-bodied white male citizen” between the ages of 18-45 to join a militia.
Why are these laws relevant today?
We live in a time when Americans are told by self-appointed “wise overlords” that the founders never intended for private citizens to have military weapons. Incidentally, they never cite anyplace that the founders made this assertion, nor where they declared their love for intervening in other countries’ domestic affairs, endless unconstitutional wars, and a permanent military with bases in foreign nations for that matter. This argument is used to justify gun control policies that restrict our right to keep and bear arms as described in the Second Amendment.
The reality is that many in the founding generation were terrified of a permanent, standing army that could crush liberties at home. This fear was a major theme during the Virginia Ratifying Convention in 1788. In fact, the convention’s proposed Second Amendment text makes it clear why it was so important that the proposed central government had no say in the possession of firearms by Americans (bold emphasis added):
That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.
The convention’s “Second Amendment” draft also provides another glimpse into their worldview. The country’s defense was to come from the people, not an army held to a different legal standard. There was no separation between soldier and civilian. At the convention, George Mason referred to the militia as “the whole of the people.” In every colony besides Pennsylvania, able-bodied men not only had to join a militia and show up to musters, but they had to furnish their own functioning arms.
The Militia Acts show that this tradition carried on through Colonial America into its history as an independent country apart from Great Britain and under the newly-approved U.S. Constitution.
Under the Militia Acts, the militia members had to bring the following:
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, accoutered and provided.
The militiamen were to be armed with their own weapons, not ones provided and owned by the federal government.
Now some might argue the U.S. government lacked the financial resources it does today, but that’s why it’s important to look at the broader context of the law. The founders did not want a standing army, and there were no calls for these men to surrender their personal firearms once a military crisis had been addressed.
Ultimately, free men must be the ones responsible for defending their liberties and their country if that freedom is to last. The founders believed that, and it’s why they favored a militia-style military composed self-equipped men, which would reduce the risk of a standing army that would take that responsibility away. If free men are not responsible, then they are not really in charge – and thus they are not truly free.
A constitutionalist or someone sympathetic to anti-federalist concerns might take issue with the law and how it was used to call up the militia during the Whiskey Rebellion. However, the Militia Acts offer reveal the blueprint for how the founders believed wars should be fought, and why they made it clear the central government should have no right to infringe on the people’s right to keep and bear arms.
TJ Martinell is an author, writer, and award-winning reporter from Washington state. His dystopian novel The Stringersdepicting a neo-Prohibition Era in the city of Seattle is available on Amazon.
A recent article on MSN is headlined: “10 Myths About the U.S. Constitution Most Americans Believe.” Here are the ten myths:
The Constitution is on hemp paper.
The Constitution has 39 signatures.
Thomas Jefferson and John Adams signed the Constitution.
The same signatures are on both the Declaration of Independence and the Constitution.
The Constitution established an American democracy.
All 13 states participated in writing the Constitution.
The President can veto a proposed amendment to the Constitution.
The Constitution gives the Supreme Court the power to declare laws unconstitutional.
The Constitution explicitly states there is a separation of Church and State.
The Constitution ensures your right to vote.
Each of these myths is adequately corrected by the author in the article.
There is no question that Americans are ignorant of the Constitution. But there are members of one elite group of Americans that I want to single out who are some of the worst offenders.
The ignorance that Americans have of the Constitution is exceeded by the ignorance of the Constitution that most congressmen have. Members of Congress swear to uphold the Constitution. Article VI, clause 3, of the Constitution requires that senators and representatives “be bound by oath or affirmation, to support this Constitution.” U.S. law requires that members of Congress be sworn in before they can take their seats. The language of the congressional oath has changed (it is set by statute) several times since it was first administered in 1789. It now reads:
I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
Regardless of any flaws or problems that the Constitution has, it is the supreme law of the land. One would think that members of Congress—most of whom have at least a bachelor’s degree and many of whom are lawyers—would have a good grasp of what the Constitution says. Yet, their constitutional ignorance is appalling.
Here are 10 myths about the U.S. Constitution that most congressmen believe.
The Constitution authorizes the federal government to have a DEA, destroy marijuana plants, and wage war on drugs.
The Constitution authorizes the federal government to have a retirement and disability program.
The Constitution authorizes the federal government to take money from Americans and give it to foreigners, foreign governments, and NGOs in the form of foreign aid or disaster relief.
The Constitution authorizes the federal government to have a Department of Education, issue student loans and grants, make bilingual-education mandates, accredit schools, have school breakfast and lunch programs, have math and science initiatives, and give states money to help operate their public schools.
The Constitution authorizes the federal government to have welfare programs like food stamps, Temporary Assistance to Needy Families (TANF), the Low Income Home Energy Assistance Program (LIHEAP), and Women, Infants, and Children (WIC).
The Constitution authorizes the federal government to issue gun regulations, license gun dealers, have a National Instant Criminal Background Check System and a Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and make gun-control laws.
The Constitution authorizes the federal government to have a Department of Labor, job training programs, minimum-wage laws, overtime pay requirements, an Equal Employment Opportunity Commission (EEOC), and a National Labor Relations Board.
The Constitution authorizes the federal government to have a Department of Housing and Urban Development and a Federal Housing Administration, issue Section 8 housing vouchers, and insure mortgages.
The Constitution authorizes the federal government to have a Department of Agriculture, give away cheese, subsidize farmers, and issue dietary guidelines.
The Constitution authorizes the federal government to pay for the health care of some Americans, issue grants for medical research, have federal laboratories, have HIV/AIDS-prevention initiatives, regulate medical schools, regulate organ donations, issue medical-records mandates, and have a Department of Health and Human Services.
Americans are certainly ignorant of the Constitution. But members of Congress, who should know better, are just as ignorant. America could be “made great again” if the members of Congress simply followed the Constitution when it came to spending the taxpayers’ money.
BATON ROUGE, La. (Aug. 9, 2019) – Last week, a bill that expands a Louisiana law to facilitate healthcare freedom outside of government regulatory schemes went into effect.
Sen. Gerald Long sponsored Senate Bill 127 (SB127). The new law expands direct primary care to include dental practices. Under the law, direct primary care agreements (sometimes called medical retainer agreements) do not constitute insurance, thereby freeing doctors and patients from the onerous requirements and regulations under the state insurance code. SB127 creates a direct primary care framework for dental practices, expanding the state’s current law for primary care physicians enacted in 2014.
The Senate passed SB127 by a 38-0 vote. The House approved the measure 101-0. With Gov. John Bel Edwards’ signature in June, the new law went into effect Aug. 1.
According to Michigan Capitol Confidential, by removing a third party payer from the equation, medical retainer agreements help both physicians and patients minimize costs. Jack Spencer writes:
“Under medical retainer agreements, patients make monthly payments to a physician who in return agrees to provide a menu of routine services at no extra charge. Because no insurance company stands between patient and doctor, the hassles and expense of bureaucratic red tape are eliminated, which have resulted in dramatic cost reductions. Routine primary care services (and the bureaucracy required to reimburse them) are estimated to consume 40 cents out of every dollar spent on insurance policies, so lower premiums for a given amount of coverage are another potential benefit.”
This represents the kind of cost control Obamacare promised but failed to deliver. In 2015, Tom Woods interviewed a Kansas doctor who utilizes the direct primary care model. Dr. Josh Umbehr’s practice demonstrates the cost savings possible when doctors are unfettered from the bureaucratic health insurance system.
Under Obamacare, regulations define such programs as a primary care service and not a health insurance plan, and current IRS policy treats these monthly fee arrangements just like another health plan.
A SECOND STEP
The passage of SB127 illustrates an important strategic point. Passing bills that take a step forward sets the stage, even if they aren’t perfect. Once the door is open, the way is cleared for additional steps. You can’t take the second step before you take the first.
Even while controlling both houses of Congress, the Republicans never did repeal Obamacare. And if they had passed one of their bills, the changes to the ACA proposed by the GOP would have arguably made things worse. Even with the penalty for not buying health insurance repealed by the Republican tax plan, all other Obamacare rules and regulations remain in place. Regardless, state actions can help completely bring down the Affordable Care Act, or any national healthcare plan the Congress comes up with in the future.
Oftentimes, supporters of Obamacare criticize opponents for not having any alternative. Direct health care agreements offer one.
These direct patient/doctor agreements allow a system uncontrolled by government regulations to develop. It makes doctors responsive to patients, not insurance company bureaucrats or government rule-makers. Allowing patients to contract directly with doctors via medical retainer agreements opens the market. Under such agreements, market forces will set price for services based on demand instead of relying on central planners with a political agenda. The end result will be better care delivered at a lower cost.
A more open healthcare marketplace within a state will help spur de facto nullification the federal program by providing an affordable alternative. As patients flock to these arrangements and others spurred by ingenuity and market forces, the old system will begin to crumble.
Enactment of SB127 takes another step toward healthcare freedom in Louisiana and create a stepping stone to further action to nullify the onerous Affordable Care act. With this new law in place, the people of Louisiana could take further steps to fully extricate themselves from Obamacare for good.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE
Fast Friday edition of the Path to Liberty. Sponsored by the Tenth Amendment Center.
With the idea of a federal “red flag” law passing gaining support in Washington D.C., we’re told that this would only be for the most “dangerous” people. But, from the income tax to the “PATRIOT” Act, what we’re told they’ll use a new power for always starts small – eventually being used against everyone. John Dickinson, the “Penman of the American Revolution,” warned us to “Oppose a disease at its beginning.”
