Help on a Constitutional Issue

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Derius_T

New member
I am right now in a debate with my brother, and it is turning into more of an argument that a debate. He is active military, and I am ex-military, and he is accusing me of being anti-military with my current stance. I need some of you Constitutional Wizards to help me out. Here is my stance.

Basically, we we talking about the ability and the duty of the common people to rise up if ever necessary, and change their government by force of arms. (not that I advocate this BTW) I tell him that the founding fathers thought that a government controlled, standing military was a bad thing. A government controlled, standing military would be used as a weapon AGAINST AMERICAN CITIZENS, if an armed resistance or uprising ever occurred, and that was a great fear of the founding fathers, and commented upon often. I tried to explain this better, but now he swears I am anti-military, which I most certainly am not.

I tried to take the militia angle, but no go. Can someone with a deeper understanding of this part of the constitution give me a little help to properly explain exactly what the constitution says on this issue, and what the founding fathers intended?

Any help greatly appreciated.
 
From the Declaration of Indpendence.... it is referred to as our "Right to Revolution" by historical scholars. Our constitution is unique in that we are the only democracy with such a right.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
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Surely your brother can have no beef with Thomas Jefferson, one of our greatest founding fathers who said.....

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
-Thomas Jefferson
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That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
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And remember, this doesn't always have to be in a violent manner. An example of this is going on right now with respect to Heller vs. DC. Heller vs DC was not a court case which was implemented by anyone in government because they recognized that the government (in this case, DC) was acting in a tryrannical, oppressive way. It was started by several people, who have a right to a redress of grievances. Those people have a right to get as many people on their side as possible to end the actions of the government, which they deem to be oppressive. In this case, that's a handgun ban. We still have the courts to try and work through this in a legal setting, and it looks as though the courts may narrowly fix part of the problem, although we can't be sure of anything with respect to the final ruling. However, this was an exercise in the peoples rights to throw off at least a piece of government which was causing the people to suffer at the hands of the government.

The founders discuss not totally changing government for light and transient causes. There are smaller steps we can take first to right the wrongs of government. The founders did believe, however, that the people must hold onto the force necessary to enable them to take more drastic actions if and when the smaller steps were unsatisfactory in redressing their grievances. The standing military should be fearful of the people. Not because we have better weapons than they do, but because we outnumber them so drastically. It's hard to control a large body of people who don't want to be controlled and have firearms to help them remain "out of control".

As our friends on the left are so fond of saying, regarding Iraq, "There can be no military solution to Iraq. There must be a political solution". Well, I would hold that the same would ring even more true in the US. Could the military impose a solution on millions of law abiding citizens who are armed with common firearms? Not without devasting large parts of the US, which would be very costly from a loyalty and political perspective. The more people the government killed, the more there would be who would pick up arms and continue to resist. Many in the military and police forces would also join the resistance. A military solution for an insurgency or for internal resistance is not as easy as anti gun, big government proponents might wish for us to believe.

Armed Americans would be a hard lot to control because we have not only tasted freedom, we have lived it.
 
Basically, we we talking about the ability and the duty of the common people to rise up if ever necessary, and change their government by force of arms. (not that I advocate this BTW) I tell him that the founding fathers thought that a government controlled, standing military was a bad thing. A government controlled, standing military would be used as a weapon AGAINST AMERICAN CITIZENS, if an armed resistance or uprising ever occurred, and that was a great fear of the founding fathers, and commented upon often. I tried to explain this better, but now he swears I am anti-military, which I most certainly am not.
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You are correct. Consider that the Constitution specifically authorizes Congress to create a Navy, but just refers to militia discipline with regard to land forces. Consider not just the Second Amendment, but also consider the Third Amendment:

Third Amendment said:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
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It's interesting to look at both of the "military amendments" together, because they both are focused on making sure that the people's rights were protected against a distant (and possibly oppressive) central government. The framers worried about the impact that a permanent standing army might have on liberty. They tried to limit the need for such a force. This was one of the reasons behind the second amendment.

See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. at 1162-63 (1991):

Akhil Reed Amar said:
We have already noted the populist and collective connotations of the rights of the people to petition and assemble in conventions, rights intimately bound (p.1163)up with the people's transcendent right to alter or abolish their government. Whenever self-interested government actors abused their powers or shirked their duties, "the people" could "assemble" in convention and reassert their sovereignty. "Who shall dare to resist the people?" asked Pendleton with obvious flourish.[149]

To many Anti-Federalists, the answer seemed both obvious and ominous. An aristocratic central government, lacking sympathy with and confidence from ordinary constituents, might dare to resist--especially if that government were propped up by a standing army of lackeys and hirelings (mercenaries, vagrants, convicts, aliens, and the like). Only an armed populace could deter such an awful spectacle. Hence the need to bar Congress from disarming freemen.

Thus, the Second Amendment was closely linked to the First Amendment's guarantees of petition and assembly. One textual tip-off is the use of the loaded Preamble phrase "the people" in both contexts, thereby conjuring up the Constitution's bedrock principle of popular sovereignty and its concomitant popular right to alter or abolish the national government. More obvious, of course, is the preamble to the Amendment itself, and its structural concern with democratic self-government in a "free State." Compare this language with a proposed amendment favored by some Pennsylvania Anti-Federalists: "[T]he people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game ...."[150] Unlike our Second Amendment, this text puts individual and collective rights on equal footing.
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Also look at Federalist No. 26, in which Alexander Hamilton attempts to allay the fears of the anti-Federalists that the Constitution will make it easy for an aggressive executive to establish a standing army, then use that to bully the legislature and people to continue funding. The fact that he has to address this fear is a significant clue as to the founder's attitudes in such things.

http://www.foundingfathers.info/federalistpapers/fed26.htm

Hope these help.
 
The Framers warned us that a standing army was a danger to liberty, and that the proper defense of a free State is militia composed of the people of that State.

"That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power." - Virginia's Request for the Second Amendment

I believe that the people of each State have an inalienable right to rise up as one and take over their State, but I do not believe that the people of the US have a right to rise up as one and take over the whole US.

"Were [the US] wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government ... The mode provided by the plan of the convention is not founded on [this] principle" -Federalist #39
 
A government controlled, standing military would be used as a weapon AGAINST AMERICAN CITIZENS, if an armed resistance or uprising ever occurred, and that was a great fear of the founding fathers, and commented upon often. I tried to explain this better, but now he swears I am anti-military, which I most certainly am not.
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You're right on the mark. The motivating force behind the adoption of the second amendment was the concern amongst the anti-Federalists over the prospect of a permanent standing army being used as a tool of oppression, and the right of the people to rebel against any oppressive government.
 
I am active duty military and I know too well the dangers of a standing military. But at the same time..as long as there are some like me here..perhaps the military is just a little less of a threat to your liberty.
 
My son is 21 and in the army. He jokingly told me recently.... "I belong to the US Government now.".

In turn, I told him that he, as a soldier, belongs to the American people and to never forget it.
 
You are also leaving out the part the the military played in enforcing the laws of the king. That is why the military is forbidden from acting as law enforcement except in a declared emergency. The Founding Fathers were scared of any gov't that imposed it's will by force of arms on the people. We have been sliding downward since old "Honest Abe" centralized power to the federal gov't over the states. The slide got steeper when Senators we elected by popular vote instead of state gov't. Now poeple want to do away with the Electorial College and have popular elected President, which means that the major cities will elect the Pres and forget the rest of the country.
 
These are the arguments that I have used with him. That the Founder's considered a standing army under federal control to be a dangerous thing. A tool that could be used by the government to deny or usurp liberty should it so choose.

He says they have a duty to defend against enemies both foreign and DOMESTIC, meaning that if citizens here tried to abolish the government, then they would become domestic enemies of said government, and the federal government would no doubt use its tool to crush this new "domestic' threat to it. And, being soldiers, they would have no choice but to follow said orders, or be guilty of treason. (Is this what they teach these kids now?)

I told him that this is a rough shadow of what happened during the civil war here. What scares me the most about his line of thinking, is that he is going for his masters in justice and law. Apparently this is the kind of things professors are leading the younger generation to believe. The Constitution, and its meanings are being twisted beyond all measure.

How long before our youth believe that the Constitution was nothing more than an old document, only intended as a 'guideline' for things, and never really intended to be taken literally?

God, sometimes I worry about what my kids and grandkids will have to live through if these trends continue. Will America continue to be what it was created to be, or will those in power finally get their way and turn the greatest nation in the world into a travesty? A shadow of its former self?
 
A domestic enemy by whose standards? Revolution is never undertaken lightly. Were that to happen, the freedoms that our country were founded upon would surely be lost. Since the government (according to the CONUS) derives its just powers from the consent of the governed, once that consent is withdrawn, does that not make the government official who orders the military in to "crush" the people a domestic enemy?

Use this as an example: (set in the future)

May 2016: The President announces that terrorists have managed to infiltrate the country's popular election system, rendering it insecure. Since the USA moved away from the electoral college 2 years ago, there is no way to reliably tally that many votes without a secure counting system. Therefore, until the government can ensure the system, the presidential elections scheduled for this fall are suspended. rest assured, this will only take a couple of months, 6 at the most. This means the elections will only go off a month late.

November 2016: The president announces another delay. Elections will now be held in March. Many lawsuits are filed, many citizens are outraged.

March 2017: The SCOTUS rules 6-3 that the delays in the election are unconsitutional. Congress passes a measure, condemning the president. The president dissolves the congress and appoints 10 more judges to SCOTUS, bringing the total number of justices to 19. In the coming months, SCOTUS rules 10-9, granting the President emergency powers.

June 2017: The president declares himself President for life. The people take to the streets. The military is ordered to crush these "Domestic Enemies" Your brother, still being in the Army, is one of the units ordered to go into Atlanta. Ask him if he would obey...
 
does that not make the government official who orders the military in to "crush" the people a domestic enemy
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In my eyes, yes it does. It would also mark them for treason and prosecution/trial/hanging after the revolution/insurrection was successful.
 
Ask him the exact words of his oath

A generation ago (and every one prior) the oath was sworn to defend the Constitution (not the sitting govt or the individuals in it), from all enemies, foreign and domestic. We were to obey the lawful orders of our superiors, but the oath was to the Constitution.

This may be a fine line to some, but it is an important one, and one that your brother must understand in order to be able to carry out his duty under his oath.

They may have changed the oath since I took it, I cannot say. But if it is still the same one it used to be, the meaning is clear, and unambiguous. People might try to (or already have) convince him otherwise, and if he follows illegal orders ultimately he could face the same judgment as Nazis faced at Nuremburg. I was only following orders is not a valid defense, and hasn't been since 1945.

It is possible for orders to be legal, and yet morally wrong. Your brother may someday have to make some very difficult decisions, and asking him to recognise the fact that he might someday be in a situation where those decisions have to be made is not anti-military in any fashion.
 
I have to thank everyone for helping here. I think I am getting through to him finally. But like he says, if the government makes amendments to the constitution, those amendments become the law of the land, even if they are unjust.

There are a lot of laws currently on the books that are not only unjust, but downright illegal according to the constitution. But, try breaking one and see if you don't pay the price. It is an ugly thing. I don't know what is worse, the fact that the government makes laws that are by their very nature unconstitutional, KNOWS IT, and doesn't seem to care, or that the majority of people just do not care themselves. The current idea that those in the government know whats best for us in all things is NOT AT ALL what the founders intended or envisioned.

Now don't get me wrong, I love this country and have supported it with my blood. I am just afraid of the current direction we are headed in, and afraid that there are not enough people left who are even willing, or able to help set things right.

Maybe it'll all just get magically better on its own.....
 
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