|This article was reproduced with permission from The Sovereign
Citizen, the publication of the Institute for American Values at
It is an edited transcript of comments by Dr. Richard E. Morgan, William Nelson Cromwell Professor of Government at Bowdoin College, the principal presenter on November 15, 1995 at an IAV symposium entitled, "Distrust of Government from the Edges -- Militias, Hate Groups, etc: What Should Be the Prudent Response?"
Joining him was Michael Hubbard, Special Investigator, Committee on Judiciary of the US Senate. Also scheduled to appear was Michael Janofsky, reporter for the New York Times, who was detained in Washington. Leaders of the Massachusetts Militia were in the symposium audience.
As Bob's told you, back in the late seventies I worked on domestic security issues. That was a time, you will recall, of great concern and scandal over "abuses" by the intelligence community, and attention to what, in particular, the Federal Bureau of Investigation was doing in keeping watch on the violence-prone political fringes in America. We went through, in these years, something like a great debate over what restraints should operate on the FBI in collecting "domestic intelligence." Later in my checkered career I came to have some involvement, very small, with second amendment issues, questions of militias, and questions of the right to bear arms. And as Bob mentioned to you, my main work over the years has been with first amendment issues. So I come to you as a person from constitutional studies with some little expertise, although dated, in matters of domestic security. I would like to make five points. I will try to make them briefly, and we'll see what it is that people would really like to talk about.
"FBI guidelines on domestic terrorism are over-restrictive -- there are ample arguments for increasing American domestic security capabilities."
We can return to any of these issues; we can parse some of the leading Supreme Court decisions on this matter; but I will quote, very briefly, from the last piece that I wrote on domestic security operations in the early 1980s:
"It is often difficult to distinguish clearly among the constitution, constitutional law, and constitutional bluster. Much of the Civil Liberties sloganizing deployed in depth by opponents of domestic intelligence in the mid-1970s loses force when the decisions and traditions are examined.The rebuilding of which I spoke in 1982 was never satisfactorily completed. As I wrote in a letter to the New York Times after the Oklahoma City bombing last spring, there are still today ample arguments for increasing American domestic security capabilities. And by the way, I have a small record, but one that I am proud of, of having said since the 1970s that violence-prone groups on the right of the American political spectrum were likely to be a source of serious problems over the latter part of the century. I think that's proved out.
"But it is also true that much remains 'up for grabs' in the arena of constitutional politics. This arena is dominated by groups and individuals who are instinctively suspicious of domestic intelligence operations.
"We are still in the process of rebuilding capabilities and correcting overreactions of the 1970s. Constitutional considerations must be central to the process, for there are forces waiting in the wings to exploit any mistakes.
"At the end of the day, few things are of greater importance to a society than sustaining the sure expectations of apprehension of and retribution for those who resort to violence as a mode of political expression. The Constitution of the United States restrains, but does not preclude our doing this. It is part of our responsibility to keep it that way."
"The formations today styling themselves militia can claim no constitutional protection from the militia clause of the second amendment or state constitutions."
"Militia," in the American tradition, is a term that has meant a number of different things. In its pristine, eighteenth-century sense of "the militia at large," the term meant all male citizens between sixteen and sixty. It's virtually indistinguishable from the citizenry. However, organized militias, militias drawn together as military formations for particular purposes, have always been appurtenances of government. If one looks, for instance, at militias of the Revolutionary period, or the militias that were called upon in the first couple of decades of our national existence (called upon, by the way, with often poor military results, which is one reason that the militia tradition petered out in American history), what we find is that those militias were creatures of the state government. The commissions of officers of the militias were within the gift of the governors of the states. These were governmentally-directed formations; these were not private armies; these were not political clubs.
These formations did have political character, and if one goes back and looks at the militia tradition, the militia was one of the great participatory institutions in American republican theory -- in the political theory that shaped our origins. The jury, the election, the militia, these were important ways in which the people would keep government honest; but the militias, as they came together for military purposes, were instruments of government -- and the formations today, the political groupings, styling themselves militia, can claim no constitutional protection from the militia clause of the second amendment, or indeed, from the militia clauses that still exist in some state constitutions. (Many state constitutions, interestingly, have dropped any reference to the militia, but have kept the right to bear arms, a point not without significance in second amendment scholarship.)
I make these first two points defensively, to establish that no one ever accused me of being soft on antiterrorism intelligence gathering or soft on the radical right. But...
"There is an unambiguous individual right to bear arms which is not subsidiary to the militia clause. If one takes the second amendment right to bear arms seriously, then any strategy of generally disarming the population is simply not on."
Now I can unpack that, or not unpack that, at whatever length would interest you or bore you. If you, for instance, sit down at your computer and run a Lexis search, that is a search of the legal literature on the second amendment, you will find that the vast majority of law review articles published on the second amendment in the past ten years affirm that it is an individual guarantee. This position has become known as the "standard model," one that most people agree upon, [though] very few people any longer adhere to -- [as opposed to] what's often called the "corporate right" or the "states' right" theory of the second amendment.
Why do I go into this at length? Because if one takes the second amendment right to bear arms seriously, as I think one must, then any strategy of generally disarming the population in order to neutralize and/or disperse political groups that have weapons, and/or behave toward those weapons in ways that we consider threatening, or even bizarre, is simply not on.
All sorts of gun control can be carried out consistent with the second amendment, but disarming the population cannot. To do that, one would either have to amend the Constitution, or -- in the most cynical fashion -- ignore it. After all, the second amendment speaks of the right of the people. That's the same people referred to in the first amendment; it's the same people referred to in the fourth amendment -- the same people who have a right be secure in their houses, persons and effects against unreasonable searches and seizures. This is not optional. Therefore, whatever law enforcement measures or legislative initiatives one considers, must, I think, proceed with an eye on the second amendment.
Beyond that, of course, and this is so obvious that I will not dwell on it, there are constitutional rights of speech and association implicated in keeping watch on the militias. And while I certainly would favor sustained law-enforcement scrutiny of groups that combine vaulting political rhetoric with even veiled invocations of violence and actual possession of arms, let it be said that right now they appear to be engaging in perfectly protected freedom of speech, and perfectly protected assembly to petition the government for redress of grievances.
"In the wake of the Los Angeles riots, the establishment interpreted the event for us, saying that the outburst was inappropriate but that it was important to understand what motivated those people. So where's the media inquiry into what's bothering the militia people? Where's the invitation to even minimal sympathy?"
When in the wake of the Los Angeles riots, the establishment interpreted the event for us, it went something like this: "This outburst was inappropriate and cannot be tolerated or encouraged. On the other hand, it is necessary to understand the source of the rage; it is important to appreciate the long-standing grievances that surfaced there. Illegal, yes; but is also important to understand what motivates these people."
In the case of the militia, there has been no attempt to understand. "Their behavior is bizarre, it's inappropriate," and that's the end. Where's the inquiry as to what's bothering these people? Where's the invitation to even minimal sympathy? They're not to be sympathized with: "They're kooks! They're whackos! They're off the chart! Over the edge!"
What we're seeing, I think, in the militia phenomenon is a particularly visible outcropping of a larger national reaction. This involves a rethinking of the dramatic growth and intrusiveness of the federal government, in particular -- and government, in general -- in the lives of Americans over the last forty years or so.
These forty years saw a real overreach on the part of the national government. It was not the New Deal, but the explosion of regulation from the mid-1960s which has resulted in a degree of governmental intrusion and control, which runs counter to the main axes or principles of the American political tradition. We have experienced a growth of national power that has made a joke of the theory of enumerated powers in the Constitution.
There has been a concomitant growth of state governments during this same period, all of which draws decisional power away from local government -- away from the place where people can really participate. And that has contributed, I think, not only to a discomfort, but a real cynicism, alienation, and now bitterness. I'm not justifying the bitterness, but I'm asking for a modicum of sympathy as to why it is there.
"If the Court would simply affirm the second amendment right, they could defuse the ugly, gnawing concern that the federal government will undertake a general disarming of the American population."
First, the general prescription; it is what's talked about today as "devolution." That is a modest, not revolutionary, but serious movement back toward the traditional distribution of power in the American political order -- devolving power from Washington to the state capitals, and in turn from the capitals to the localities.
Second, and more specifically, (this will really get me in trouble!) an affirmation by the Supreme Court of the right to bear arms as an individual right, and the extension of that right to the states. Those of you who have had your Con Law course know that the second amendment is one of the few provisions of the Bill of Rights which has not been extended by the Supreme Court to the states. The Court has sedulously avoided, as a matter of fact, providing much of a gloss at all on the second amendment.
I make this point, with a certain tremor in my voice. As Bob Fischer knows, my politics are perhaps best described as neo-antifederalist. I don't usually want to extend federal controls, especially federal judicial controls, against the states. But in this case, the historical evidence is overwhelming that the Reconstruction Congress that framed the fourteenth amendment intended the right to bear arms to be one of the things that was extended to the states. If the Court would affirm the second amendment right and extend it to the states, I think this would go some distance toward defusing what is one of the ugly, gnawing concerns out there in the country which fuels the militia movement: the strong suspicion that the federal government will, sooner rather than later, undertake a general disarming of the American population.
Such action by the Court would not preclude a whole variety of gun control measures. One of the more annoying habits of the gun lobby is to meet every suggested firearms regulation brandishing the second amendment. (They're almost as bad as the press, you know, with the first amendment.)
You can do a lot of regulating within a sensible interpretation of the right to keep and bear arms, but such a decision would, as I suggested, go some way to quelling, to quieting, an anxiety out in the country -- an anxiety that is not without some foundation. People listen to Charlie Schumer on the tube talking about the evils of firearms ownership. Can we altogether condemn them if specters of confiscation leap into their minds?
And who was it? Who was that genius, (probably some Ph.D. from the Rand Corporation) who decided a year or so ago, that it would be a good idea to find out what American soldiers would do if ordered to participate in a confiscation? So let's do a little survey, and ask them what they would do, and would they fire on American citizens, if necessary, in that process. And before cooler heads prevailed at the Department of Defense and throttled this thing, they actually surveyed some Marines at Camp Pendleton, who bravely answered that they would obey orders. "Mess with the Best and Die Like the Rest." Of course this was a silly little incident that should never have happened.
But we have had a lot of "incidents" of late -- and against the background of the major constitutional deformation that has taken place in the second half of the twentieth century, the anxieties that fuel the militia movement grow and grow.
The Institute for American Values sponsors symposia on political science issues at Nichols College in Dudley Hill, Massachusetts. The IAV can be contacted by calling (508) 943-1560.