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Legally Speaking


By Karen L. MacNutt, J.D.

Contributing Editor to "Women and Guns Magazine"

March, 1995
Reproduction of this article on computer information systems is permitted for informational purposes only. Copyright (c) 1995 by Karen L. MacNutt, J.D. All other rights reserved.

My enemies accuse me of being a little to the right of Attila the Hun. That is untrue. Attila believed in a strong central government, I do not.

Many years ago I read a book called "Slightly to the Right". It was a humorous account of one man's political awakening starting with his realization that America was sliding toward socialism. His first reaction was to "take to the woods." He then harangued all his friends with an obnoxious political evangelicalism. Eventually he evolved into an effective political worker.

I had not thought of the book in years but was reminded of it when one of my friends tried to "enlist" me in a "militia" group. "You mean re-enacting?" I asked. 'No," was the answer, "real military training." "Oh," I said, "You mean the National or State Guard. "No," he said, "a citizens' militia to protect our Constitutional rights!"

I was amazed at my friend's lack of understanding. I knew he was patriotic. I knew he was not a violent person and his heart was in the right place. I knew he was genuinely concerned about America's loss of sovereignty and basic civil rights. He had just become aware of America's fifty year march towards international socialism and, like the author of my book, his initial reaction was to take to the hills.

"You cannot defend the Constitution," I said, "by running around in the woods! You are playing into the hands of your enemy."

The Constitution is a marvelous document which institutionalized revolution. Within its pages, it provides for the peaceful overthrow of the government every two to six years through the electoral process.

We have just witnessed such a revolution. The Republicans captured Congress because they were better organized and had more public support than the Democrats. As revolutionaries from Sam Adams to Mao Zedong will tell you, you cannot have a successful revolution without the support of the people. In our system of government, if you have the support of the people, you do not need violence to seize control of the government. You just make sure your supporters vote.

Unlike some nations, the shift of power in the United States was so peaceful and orderly that most people were unaware of the amount of power that changed hands. In 1996, the "revolution" of 1994 will either continue or be lost when the President runs for office. A continuation of the "revolution" could result in the continued control of the House of Representatives, up to two thirds of the Senate, and the Presidency. Control of the Senate and Presidency leads to the control of the Supreme Court. Politically savvy power brokers are already marshalling their "troops" for that fight.

While my friend is running around the woods, real power is being amassed by those who create and control the political machines which make and break candidates. The glory of the American system is, however, that anyone can build a machine.

As long as the American people can vote and run for office, the method the Constitution provides for righting political wrongs is through the political campaign. If we have bad government, it is because too many good people do not pay attention to the political system. From time to time, the people will rise up to vent their anger in an election. Our job is to keep that political pressure on.

There is no harm in "reenactors" - with their "militia" companies or north/south skirmish teams. It is a hobby that is both fun and educational. I believe in universal military training. It is the only way to have a "well regulated" militia. I am concerned, however, with the so called "citizens' militias" for a number of reasons.

There is a big difference in being a part of THE militia and being part of A militia. THE militia is all citizens capable of bearing arms. A militia is an organization of citizen soldiers. I have no problem with such organizations when organized by a city, county or state, but I do have problems with private militias.

When the call came for militiamen at Concord and Lexington in 1775, it was not Sam Adams and his revolutionaries who turned out the militia. It was the selectmen, mayors, constables, wardens, and other representatives of local government. The men who signed the muster roll signed in under the articles of war. They were paid for their service from the public treasury. To Sam Adams April 19, 1775 was a glorious day because local government committed itself to American independence, not because a mob of radicals attacked the British Army. Until called into service by civilian authorities, the militia has no legal authority to act.

After the American Revolution, independent militia companies became fashionable just as did fraternal organizations such as the Masons. They often had fanciful names and uniforms patterned after some elite European unit. Often they elected their own officers. If you are ever in Boston on the first Monday in June, go to Boston Common. There you will witness the election of officers of the Ancient and Honorable Artillery Company, the nation's oldest militia group. The pageantry is outstanding.

The independent militia companies were chartered by the states, swore allegiance to the state, and were a part of the state's military forces. They were the men who, for the most part, fought our Civil War.

The militia is subject to civilian control. When called to duty by a mayor, sheriff, governor or the President, it is under military law. A violation of an order is a court martial offense. There is no jury in a court martial, only a board of military officers. If a single militiaman disobeys an order of a superior officer, that is called insubordination and is a punishable act. If a body of militiamen disobey an order, that is mutiny. Mutiny is a very serious offense which can be punishable by death. If a body of militiamen refuse or resist an order by force of arms, that is treason under the Constitution and is punishable by death.

One of the marvels of our society is that we can have strong dissent without civil war. When George Wallace called upon his organized militia to prevent school desegregation, they obeyed orders. When those same soldiers, as part of the National Guard, were called to federal service to enforce desegregation, they obeyed the President's authority.

The American military, including the militia, have a long, honorable and good tradition of not being political. The Constitution places the military under the control of civilian authorities elected by, and responsible to, the people. That is as it should be.

There are some big problems with the private "militia' groups.

First, I doubt that those who join realize they are placing themselves under government control. As militiamen, they are subjecting themselves to military discipline under the USMJ or the equivalent state militia law. By doing so they throw away their right to a jury trial if they engage in conduct that is inappropriate for a soldier even if that conduct would be a lawful protest for a civilian.

Second, the private militia companies are implicitly accepting the anti-gun argument that the Second Amendment does not guarantee individuals the right to keep and bear arms. The anti-gun people keep saying that the Second Amendment is a collective right, that only the militia (which they incorrectly identify as the National Guard) can have guns. They are wrong. The Second Amendment is an individual right. It does not say the "militia" has the right to keep and bear arms, it says the people have that right. The right exists so that the people can defend themselves individually and be available WHEN CALLED BY THE CIVIL AUTHORITY to enforce the laws or defend the community from invasion. If the Second Amendment refers to militias, then arguably only those people in an organization controlled by the government would be able to have guns.

Third, by running around in "militia" companies, people are wasting valuable resources which could be used for effective political action. Our opponents are using the political system for all it is worth. We need every man and woman working in the trenches of political campaigns, not in the woods. We can affect elections. We can be politically powerful. Last November's elections show that. We must keep up the political pressure. If the organizational time and ability being used to create "militias" were used to create effective political machines, we would control numerous elections.

Real soldiering is not fun. It is grueling, tedious grunt work interspersed with moments of abject terror and hideous destruction. Political campaigning is tiring, monotonous work interspersed with raucous parties and wild rallies. Parties are more fun than devastation.

Last, the anti-gun factions have historically made progress by frightening the American public. The "assault weapon" legislation got as far as it did because of the fear created in the general population. We have entered an era when much of the security forces of the Federal Government are without a stated reason to exist. With shrinking budget dollars, these agencies need to create a "threat" to justify their appropriations. That is what happened at Waco. The agency rumblings about "cults," "survivalists," "right wing extremists," and "neo-Nazi" are all warning signs that there will be an attempt to create the image of an internal enemy to justify budgets and the repression of political opponents. The only "fascists" we have to worry about are those who hold high government office and attempt to justify destroying individual rights in the name of some collective "good."

The "militia" groups play into the hands of our enemies. They are an easy target to malign. They are an easy target to make appear radical. The are an easy target to create a public fear. Some flashy crime will occur and rightly or wrongly the "militia" groups will be blamed. There will be an expose on "60 Minutes" and on the tabloid programs guaranteed to make all gun owners look crazy. There will be a demand for Congress to act and the public outcry will be loud. No elected official will want to be seen with radicals even though they will privately admit there is nothing to all the media hype. Legislation outlawing all sorts of things will be pushed through. The anti-gunners are against what they call "the culture of violence." That includes historical reenactments, the collecting of military memorabilia, the right of self-defense, and the thought that individuals can make up their own mind as to what is in their own best interest. It will all be illegal because what the elitists want to control is our beliefs, not our actions.

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