The Constitution is not supposed to be a suicide pact
By Thom Hartmann for the
Their entire argument — that the Second
Amendment gives Americans the right to form private militias and then turn
their guns against the government — is a complete and utter scam.
America is now occupied by this armed movement
that regularly terrorizes racial minorities, school boards, witnesses against
Donald Trump, politicians, poll workers, and LGBTQ people.
Armed “patriot” and “militia” groups in America
claim that the Second Amendment gives them the right to both carry weapons and
form themselves into groups for the purpose of repelling or stopping “tyranny”
or a “tyrannical government.”
(Weirdly, the “tyrrany” they talk about involves
raising taxes on very very rich people, letting gay people get married and
women make the choice of abortion for themselves, making sure every American
has healthcare and can get a college or trade school education, and raising the
minimum wage.)
In response to demand from men in militia groups
who want to cosplay as Revolutionary-era patriots or Klan-era terrorists,
multiple manufacturers now sell into the civilian market a version of the M16
military rifle, typically referred to as an “AR-15 type” weapon.
These aggressively marketed civilian versions of
military assault weapons are now the preferred tools for mass- and
school-shooters, as well as a fashion accessory for “militia men” seeking to
have their “man cards”
validated (this is how one type of AR-15 was marketed).
There are an estimated 20 million of these
weapons in circulation in America, and another 4 million are sold every year. They’re extraordinarily deadly and enormously profitable
for their manufacturers.
AR-15 style weapons typically fire .223 rounds, first developed for use in Vietnam. The bullet exits the gun at more than 3,200 feet per second, carrying 335 foot-pounds of force (a .22 round carries 70 foot-pounds of force).
The AR-15 style weapons are so deadly that some
of the children killed in Uvalde and Sandy Hook (among others) had to be
identified by DNA or clothing. A single .223 round has such impact velocity
that heads are literally exploded — one child in Uvalde was effectively
decapitated by a single bullet — and holes blown in the body are large enough
to put a fist through.
Because America did nothing to stop the
proliferation of AR-15 style weapons when they began selling in large numbers
in 2008, Sig Sauer is now upping the ante.
The US Army’s newest battlefield weapon is
called the Next Generation Squad Weapon, or NGSW-R and -AR. Replacing the M-4 and M-249, the first contract went to Sig Sauer.
In 2017, General Mark Milley told Congress
that body armor as cheap as $250 could block penetration from bullets fired by
both the M-1 and M-4 type weapons that our military currently uses.
In response to his testimony, the new NGSW-AR
weapon is specifically designed to penetrate pretty much every kind of body
armor currently on the market.
“This is a weapon that could defeat any body
armor, any planned body armor that we know of in the future,” Milley told the Army Times in
2019. “This is a very sophisticated weapon.”
While the Sig Sauer NGSW-AR won’t be available
to the military for another year, Sig Sauer has already sold an estimated 5000
of their new civilian version — the MCX-SPEAR — into the general American
marketplace.
“This first production run MCX-SPEAR and all of
the revolutionary technology behind its development,” Sig Sauer CEO Ron Cohen announced, “is
being offered to the commercial market in a configuration that is a near match
to our NGSW-R submission.”
The MCX-SPEAR has twice
the lethal kinetic energy of the AR-15. There won’t be a cop or politician in
America who’s safe when these guns are widely available next year.
Which brings us to the people buying these
weapons, the militia members and Second Amendment “patriots.”
Prior to the 1990s, they were considered the
fringe of the fringe. Tim McVeigh is probably the most famous of their lot,
blowing up the Federal Building in Oklahoma City, memorializing David Koresh’s
1993 last stand in Waco to the day.
McVeigh’s 1995 blow against “government tyranny”
killed 168 people, 19 of them children, and crippled or injured more than 680
others.
The militia movement went largely underground
after McVeigh, until the election of Barack Obama in 2008 put a Black man in
the White House.
In an eerie echo of the rise of the Klan after
Black people first achieved political power during Reconstruction, today’s
white supremacist militia movement has exploded across the American landscape
over the past 14 years since we got our first Black president.
Their main claim that they have the right to
assemble in public with their weapons on display is that the Second Amendment
was written by the Founders and Framers of the Constitution specifically so
future generations could be well enough armed to rise up in response to a
tyrannical government.
As noted, this is a lie.
Article I, Section 8 defines what a militia is
in the United States, and specifically puts all legal militias under the direct control of the federal government:
“[The Congress shall have Power] 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;”
Notice that the militias are called forth to
“suppress insurrections.” Nothing in there about shooting at your own
government. Neither are today’s militias “organized” by our government, “armed”
by our government, or even “disciplined” by our government.
The Militia Act of 1792 outlawed all private militias in the United States that
are not authorized by and answerable directly to either the president or the
governor of a state, and the Militia
Act of 1903 doubled down (against the Klan and
dozens of groups by other names affiliated with them) while largely creating
what we today call the National Guard.
If that’s not specific enough, Article 4,
Section 4 of the Constitution — written with Shays’ Rebellion in mind —
explicitly gives the
government the power to protect our “Republican form of Government,” when
ordered by either Congress or the president, “against domestic Violence.”
Reading the Constitution for any reference to
unauthorized militias taking on a “tyrannical” US government, the only explicit
reference you’ll find is Article III, Section 3. It clearly lays out that when
private militias like those who attacked our Capitol on January 6th show up,
it’s called treason:
“Treason against the United States, shall
consist only in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort.”
War is the use of armed violence to achieve
political ends. If the armed, uniformed militias who attacked our Capitol on
January 6th weren’t “levying War against” us, what were they doing?
Sure, James Madison did write in Federalist 46
that should the federal government ever become tyrannical the “armed” militias
could take it down, but read
the entire paragraph rather than the fragment
often quoted: Madison was explicitly talking about state militias, authorized
and armed by state governments and commanded by state governors, not private
militias.
He thought in the worst possible situation,
enough states would have enough sense to set things right even if that required
the use of force. But never in his wildest dreams did he mean to suggest that
random groups of civilians should get together and start shooting at police or
government officials, or blowing up federal buildings.
Also, the Federalist Papers are not law; they
were merely the sales pitch that Hamilton and Madison put together in 1788 to sell
ratification of the Constitution. So even if you want to take them out of
context or interpret them in some bizarre fashion, it’s meaningless. Taking up
arms against your government is still treason, and that is still a crime. The
highest of High Crimes, in fact.
So that’s what’s in the Constitution and
Federalist Papers. But what do our state and federal laws say about private
militias?
Turns out there’s a lot of laws about private
militias, and most of them date back either to early rebellions like Daniel
Shays’ (which led to the death sentence for treason against 18 men) or the rise
of the Klan after Reconstruction.
Every one of the 50 states today explicitly
outlaws private militias, either by constitution or law or both. Virginia, the
home of Madison, Jefferson, Henry, Mason, Washington, etc., was the first,
putting into their constitution in 1776:
“That a well regulated militia, composed of the
body of the people trained to arms, is the proper, natural, and safe defense of
a free state; that standing armies, in time of peace, should be avoided as
dangerous to liberty; and that in all cases the military should be under
strict subordination to, and governed by, the civil power.” [emphasis mine]
Forty-eight of the 50 states have similar
clauses in their constitutions requiring any militia in the state to be
subordinate to civilian authorities: typically the governor, occasionally the
legislature, or both. (Georgia and New York are the exceptions.)
Twenty-nine states have specific laws outlawing
private militias altogether (Alabama, Arizona, Connecticut, Florida,
Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada,
New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Texas,
Washington, West Virginia, and Wyoming).
Twenty-five states, as the Brennan Center for Justice notes:
“[H]ave laws that generally prohibit teaching,
demonstrating, instructing, training, and practicing in the use of firearms,
explosives, or techniques capable of causing injury or death, for use during or
in furtherance of a civil disorder.”
(They include Arkansas, California, Colorado,
Connecticut, Florida, Georgia, Idaho, Illinois, Louisiana, Michigan, Minnesota,
Missouri, Montana, Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia,
Washington.)
As you can see, there are a lot of laws on the
books that are not being enforced right now.
And it’s not like this is a new issue: back in
1886 the US Supreme Court ruled, in Presser
v Illinois (upholding state anti-militia
laws), that:
“It cannot be successfully questioned that the
state governments, unless restrained by their own constitutions, have the power
to regulate or prohibit associations and meetings of the people … and have also
the power to control and regulate the organization, drilling, and parading of
military bodies and associations, except when such bodies or associations are
authorized by the militia laws of the United States.
“The exercise of this power by the states is
necessary to the public peace, safety, and good order. To deny the power would
be to deny the right of the state to disperse assemblages organized for
sedition and treason, and the right to suppress armed mobs bent on riot and
rapine.”
Back in 1907, when the Klan was the main white
supremacist militia of the day (although it operated under multiple different
names in various states), the Washington Supreme Court ruled that:
“Armed bodies of men are a menace to the public.
Their mere presence is fraught with danger, and the state has wisely reserved
to itself the right to organize, maintain, and employ them.”
As recently as 1982, a federal court in Texas
disbanded a white supremacist private militia known as the Texas Emergency
Reserve (a branch of the Klan) that had been harassing Vietnamese fishermen, banning them
from “trading and parading in public with firearms.”
In summary, the unwillingness of our government
— under both Republican and Democratic administrations — to restrain the
lethality of military-style weaponry in civilian hands and to enforce laws
against private militias have left us in a very dangerous situation.
Republicans, believing the militias are their
natural allies, have encouraged the proliferation of these weapons and the
people carrying them, particularly since Obama’s election 14 years ago. Some,
like Marjorie Taylor Greene, even use them for security at public events.
Democrats have either ignored the growing threat
or, when they try to take action, been thwarted by Republicans and a handful of
sellout Democrats in the Senate still taking big bucks from the weapons
industry.
One-in-five Americans tell researchers
they believe political violence is sometimes justified in America against other
Americans, and an estimated 18 million Americans say they’d be willing to kill
another American to achieve a political goal. If action isn’t taken soon, the
proverbial chickens are damn close to coming home to roost.
Thom Hartmann is a talk-show host and the author of The Hidden History of Neoliberalism and more than 30+ other books in print. He is a writing fellow at the Independent Media Institute and his writings are archived at hartmannreport.com.