Homeland Security?

A Common Lawyer Comments from Winters Inn of Court

www.commonlawyer.com

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

www.commonlawyer.com

OR

Order by e-mail:

winterscommonlawyer@gmail.com

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).

Ron Paul?

A Common Lawyer Comments

from

Winters Inn of Court

www.commonlawyer.com

Ron Paul?

Ron Paul has always affirmed his commitment never to trespass the bounds of our Constitution. Accordingly, he insists that presidents not send Americans into foreign countries to fight without Congress’ duly passed declaration of war. Why? Because our Constitution requires Congress’ declaration of war before presidents take Americans from their families and send them to other countries to kill and (inevitably) to be killed. Never forget, war is a direct danger to those sent to fight. And even though the American—unlike the Muslim suicide bomber and Japanese kamikaze—fights to kill and not be killed, when Americans wage war some will die.

Our Constitution, says the Supreme Court, is couched in our common law. Its requirement that Congress declare war before waging war is a matter of common-law due process: our Country ought never send Americans into another country to kill or be killed without having fulfilled the process due to us all by putting Congress to the moderate inconvenience of debate & vote.

Bottom line: war without Congress’s declaration is not our Country’s war, but the war of whoever happens to be living in the White House at the time; but worse, without Congress’s declaration of war the lives our soldiers and sailors become a president’s pawns & a ticket to his ego’s lawless adventure.

Of note, Ron Paul also insists that if Congress does declare war, all concerned must do all within their power to send our armed forces wherever necessary, trained and equipped to strike hard and fast to destroy the enemy Congress has declared war upon. Simply put, once Congress has duly declared war, Americans must not let up until that declared enemy is defeated. The quicker the victory, the more lives spared.

Is it asking too much that presidents and congressman keep the grisly business of war within the bounds of our Constitution? Each of them did promise, by solemn oath, to uphold it. Is it asking too much that before Americans are taken from their families and sent into foreign lands to take the lives of others—and some, inevitably, to lose theirs’—that such dreadful power be kept under the law of the land: our precious due process, the process our Constitution says is due you and me, requiring Congress to declare war?

Do not misunderstand; the power to wage war is not the danger; power does not corrupt presidents. Corruption—that mortal weakness common to all Adam’s race—is already the very fabric of each president’s soul upon moving into the White House. But make no mistake, some presidents, lacking necessary discipline, are weaker than others. And when the unassailable military might of the United States is placed into such hands, the temptation it brings magnifies the likelihood for abuse—lawless (unconstitutional) war with the untold hardships that always follow in its dirty wake.

But, one may ask, what does a president do in an emergency, such as surprise invasion from without or spontaneous insurrection from within? Rest assured, our Constitution provides clear guidance in the common law for such cases—standing orders for all concerned, including presidents. Lord willing, this will be the subject of another blog.

To sum up, our Constitution says Congress alone holds the un-delegable right to say whether a president will ship Americans to foreign lands to kill and risk being killed. Only Congress, says our Constitution, has the power to say yes to war or to say no.

Lastly, consider the comments of Joseph Plumb “J.P.” Martin—a mere sixteen-year old when British Hessians baptized him into the fire of battle. The next year, J.P. ambled over the ground where Americans and Hessians, locked in a death struggle, had been slain. Writing of those Hessians sixty years later J.P. warns us: be careful that you do not allow yourself to be brought to such an abject servile condition:

I, with some of my comrades who were in the battle of the White Plains in the year ‘76, one day took a ramble on the ground where we were then engaged with the British and took a survey of the place. We saw a number of the graves of those who had fell in that battle; some of the bodies had been so slightly buried that the dogs or hogs, or both, had dug them out of the ground. Their skulls and other bones, and hair were scattered about the place. Here were Hessian skulls as thick as a bombshell; —poor fellows! They were left unburied in a foreign land; —they had, perhaps, as near and dear friends to lament their sad destiny as the Americans who laid buried near them.

But they should have kept at home, we should then never have gone after them to kill them in their own country. But, the reader will say, they were forced to come and be killed here; forced by their rulers who have absolute power of life and death over their subjects. Well then reader, bless a kind Providence that has made such a distinction between your condition and theirs. And be careful too that you do not allow yourself to be brought to such an abject servile condition. (bold and italic in orig.)

J.P.’s words, we should then never have gone after them to kill them in their own country should sting a little. But his further point is to distinguish the Hessians from the Americans: the Hessians’ prince, by his single unfettered will, shipped them to America to kill on command; by contrast, our Constitution forbids that any U.S. president ship Americans to foreign countries to fight unless Congress tells him to do so by formal order called a Declaration of War.

For good reason, the decision to wage war belongs to Congress alone. But above all, our common-law government is one of law and not of any man or men, such as, for instance, some wrong-headed president—or worse yet, other men for whom such a wrong-headed president is a secret yes-man.

Copyright © 2012 Brent Allan Winters

January 2012

For Brent’s further comments concerning the Constituion’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

www.commonlawyer.com

Order by e-mail: winterscommonlawyer@gmail.com

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 mining engineer; ran for U.S. Congress; has represented clients in six foreign countries; has argued before the Jury and appellate courts (State and federal) in four States; and has written pleadings and briefed cases in the United States Supreme Court. Brent and Susan his wife of thirty-four 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 to nationhood and at bottom, the fellowship that still defines Americans to the world. Keep it and it will keep your freedoms. www.commonlawyer.com