A Common Lawyer Comments from Winters Inn of Court
Time to plough neglected constitutional ground?
Small-arms fire from American civilians, said one Japanese flyer after Pearl Harbor, was so thick you could walk on it.
“I would never invade the United States. There would be a gun behind every blade of grass.” Admiral Yamamoto during WWII
When war began most Japanese knew little of Americans. To be sure, our military men at Pearl Harbor were courageous, but responded as the Japanese expected. However, what did surprise the Japanese was the armed aggression of non-military Americans. In fact, civilian small-arms fire chilled arrogant Japanese fantasies about invading the continental States.
Armed Americans on the Island of Oahu struck fear into foreign aggressors and likely would have done the same to any homegrown thugs gone to seed—whether within government or without. Without question, our Constitution’s four Militia Clauses[i]—indeed our whole Constitution—contemplates both possibilities and provides against them.
Those who drafted and signed the Constitution were savvy, sharpened to dangers at home, whether from their own government or from insurrection. In fact, as each man picked up the quill to screve his name to our Constitution and then to our Bill of Rights, the reek of gunpowder lingered in his nose. Having lived through the crucible of war by invasion of their fellow Brits and by their own neighbors turned Tory, these men had learned that though such aggressors fear an army, they fear even more an armed people, which our Constitution calls the Militia of the several States.[ii]
Rightly so: standing armies, navies, and armed government police forces are not only predictable to invaders from without, but can also, under orders of unscrupulous politicians or lawless superiors, turn on their own people—as did Benedict Arnold and thousands of other Tories in turning on their fellow Americans; and as did police forces in taking guns from the law abiding in the aftermath of Hurricane Katrina.
Our forefathers, tempered in trial by battle, learned the danger of concentrated central power. Consequently, our Constitution recognizes no national militia, but only the Militia of the Several States.[iii]
Congress, by Amendment II's forbidding infringement of the individual right to keep and carry firearms, set up a barrier against the government reducing to window dressing the other three Militia Clauses' Militia of the Several States:
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.[iv]
In the whole Constitution, only Amendment II says what is necessary to have security without forfeiting freedom: a well regulated Militia, which is the same Militia of the several States kept regular (always ready), just as the other three Militia Clauses require. Our Constitution then also tells us what is necessary to keep that Militia always ready: the right of the people to keep and bear Arms, shall not be infringed.
Above all then, Amendment II bars infringement, not only to protect the individual right to keep and carry a gun for personal protection, but also for an even greater reason: because it is the only way to have security without forfeiting freedom in exchange.
In fact, according to our Militia Clauses, the only way to have national security and freedom too is to make sure each Militia of each State works according to the Militia Clauses of our Constitution. Any other method may give short-term security, but will only do so at the expense of freedom—as is now seen: searches without warrant, tribunals without due process, jail time for invoking constitutionally protected rights—the same abuses and usurpations now afoot in the United States.
Simply put, the Constitution’s foundation for freedom is the separate States’ Militia. And the only foundation that can enable each State’s Militia is each person’s personal right to keep and carry firearms.
Bottom line: without the individual right to keep and carry a gun, there can be no State Militia; where there is no State Militia, there is neither security nor freedom.
Do not be deceived: It is impossible to achieve national security and freedom at the same time through any police-state bureau. In fact, the so-called Department of Homeland Security and its police-state comrades—IRS, FBI, CIA, NSA, ATF & etc, etc.—are the very kind of creatures our Militia Clauses target as the foremost dangers to freedom.
In bears repeating: our freedoms will never last without security, but security by any means other than the Militia of the several States according to our four Militia Clauses will always demand forfeiting our freedoms.
The civil-law code says, “Give us your freedoms and relax; our professional police-state bureaucrats will protect you.” Our common law says, “Protect your own selves, and you shall keep your freedoms too.”
In short, bureaucracies promise police-state security, but only in exchange for freedom, and provide neither. By contrast, our Militia Clauses guarantee freedom for all as each able-bodied man takes up his Militia duty in response to State and local authority for the safety of his country, resulting in both security and freedom.
Bottom line: security and freedom at the same time are possible only as the Militia of each State fulfills its non-delegable duty in accord with our Constitution’s four Militia Clauses.
Until the war on terror so-called, Americans enjoyed more of security and freedoms because the Militia (meaning the people), as a whole, have stayed armed, discouraging invasion from without and plundering within. But as Supreme Court Justice Story forewarned: through neglect there is no small danger that indifference may lead to… contempt; and thus gradually undermine all the protection intended by this clause [Amendment II] of our national bill of rights.[v]
Time has proven Justice Story right. The result of a 175-year neglect of our Militia Clauses is now seen: thugs have grown bold, threatening from without and within; and the police state, claiming necessity, moves upon us apace, demanding that we give up our freedoms for empty promises of security. The Constitution, however, offers something better.
Because the constitutional ground of our Militia Clauses has been let go briers of academic ignorance have taken root; a matted, tangled confusion of regulatory brambles cover the ground. Promoting the claim of security in exchange for freedom, the police-state's criminal-law industry now gathers a monopoly of force.
Time has come to plough all that under.
To sum up:
The Constitution’s Militia of the several States is the only possible way to achieve security without forfeiting freedom.
The Second Amendment protects the individual right to keep and bear firearms: the only possible way to enable the Militia of the several States to provide that security without forfeiting freedom.
Note well a good report:
For the first time in our Country’s history, our Supreme Court has enforced the Second Amendment’s personal right to keep and bear arms in District of Columbia v. Heller, 554 U.S. 570 (2008) (enforcing against federal-government infringement) and McDonald v. Chicago, 561 U.S. 3025 (2010) (enforcing against State and local government infringement).
A right response:
The next step is for State legislators to enable their State’s Militia in accord with the requirement of the Constitution’s four Militia Clauses.
Indeed, nothing will ruin the country, says Daniel Webster, if the people themselves undertake its safety; and nothing can save it if they leave that safety in any hands but their own.
Brent Allan Winters © March 2012
For Brent’s further comments concerning the Constitution’s War Powers’ and Militia Clauses’ relationship to the Second Amendment, see pages 43, 48, 81–87, 144, 152 of Brent’s Book—
United States Constitution & Declaration of Independence:
A Common Lawyer Comments—Clause by Clause (2010).
Available in book form & audio CD at
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Brent Allan Winters grew up on a farm in Southeast Illinois; served as Dive Team member (Navy Mobile Diving 1) and aboard carrier USS Coral Sea; worked as geologist and mine engineer; ran for U.S. Congress; has represented clients in six foreign countries, argued before the Jury and appellate courts (both State and federal) in four States, and has briefed cases in the United States Supreme Court. Brent and Susan, his wife of thirty-five years, have eight children and four grand children. Our common-law way of life and thought, says Brent, is not only the lifeblood and backbone of our Declaration and Constitution, but also the object of zeal that delivered our country through the birth pangs of battle to nationhood and, at bottom, is still the fellowship that defines Americans to the rest of the world. Keep it and it will keep your country. www.commonlawyer.com
[i] See U.S. Const. art. I, sec. 8, cls. 15, 16; art. II, sec. 2, cl. 1; amend. 2
[ii] U.S. Const. art. II, sec. 1, cl. 1.
[iii] U.S. Const. art. II, sec. 2, cl. 1, Congress’ legislation notwithstanding.
[iv] Congress’al Stats. at Large, v. 1, at 97, omits the first and third commas. The meaning, however, remains unchanged. Amendment II is only one of the Constitution’s four Militia Clauses. It was added after the States accepted the Constitution in order to remove from government reach the smallest infrigement of the one freedom necessary to enable the other three Militia Clauses to achieve national security without forfeiting freedom: the personal right to keep and bear arms.
[v] Joseph Story, Commentaries on the Constitution of the United States 708 (Durham N.C., Carolina Academic Press 1987) (1833).