Tuesday, February 27, 2018

Worst Supreme Court Since Taney

The U.S. Supreme Court ruled Tuesday that immigrants, even those with permanent legal status and asylum seekers, do not have the right to periodic bond hearings. – NPR

And so, legal immigrants, at least who have not been naturalized, may now be detained indefinitely without trial. Soon it will be naturalized citizens (ICE already claims the right to revoke naturalization), and then perhaps then natural citizens.

The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right. I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail. — Supreme Court opinion in Jennings v. Rodriquez, Justice Stephen G. Breyer, dissenting.

We now live in a country where people can be disappeared. The door is wide open to a police state.

Sunday, February 25, 2018

"A Well Regulated Militia" - postscript

This took an unexpected amount of time to write, over a decade from my discovering the phrase "a well regulated militia" in Fletcher, to my tying all the pieces together. I could not have done it without all the diligent researchers who have spent much more time on this than this dilettante bird and the internet itself, which made it possible for me to easily locate crucial documents.

I do hope that this is a useful addition to the reams that have been written on this subject and that it will lead to changes in our thinking that improve our lives.

Again, here is a list of all the parts, with links:
Part 1 - From Renaissance Florence to The Constitution of the United States
Part 2 - The Classical Republican Militia: Machiavelli in Florence
Part 3 - Scottish Republicans
Part 4 - Madison, Jefferson, and Hamilton: the Second Amendment and the Militia Acts
Part 5 - Summation: Whither the Second Amendment?

"A Well Regulated Militia" - part 5

Summation: Whither the Second Amendment?

The republican militia was an anachronism at its conception in Florence. The Second Amendment and the 1792 Militia Acts mandated an unworkable system for raising a military for the new republic that was quickly abandoned. In law and custom, the Second Amendment has led to much mischief. Fletcher’s “well-regulated militia” has often degenerated into an ordinary and ill-regulated paramilitary force. As Bogus[27] pointed out, it became part of the slave system, indeed may even have been written into law to bolster the slave system. When the South seceded, it was the South Carolina state militia that threatened Fort Sumter. Racists, terrorists, and the criminally violent have been persuaded that the Second Amendment is an unlimited firearms license, while weapons makers use it as an excuse to sell vast numbers of battlefield weapons to civilians who do not need and often abuse them.

What remains after it is admitted that Fletcher was wrong? To say that Fletcher’s militia was a proposal for a system that has only rarely been successful and has at times been a great tool of oppression? Jefferson’s description of the militia in his first inaugural address is a far cry from the hopes of the classical republicans for a replacement for regular military. Four other ideas accreted to the the Second Amendment: (1) Federalism, the idea of the state militias as a check on Federal power, analogous to Fletcher’s belief in baronial power as a check on royal power,[30] (2) the idea that the Second Amendment granted a right to form informally organized paramilitaries without any legal sanction, (3) the individual right to own weapons for self defense as mentioned in Burgh and which I daresay most of the Founders and any Scots highlander would have recognized,[31] and, covertly, (4) the individual right to act as a vigilante armed with lethal force, so important and terrifying in the South. It is worth expanding on the racism of (4): older versions of Arkansas, Florida, and Tennessee law specifically refer to white men.[32]

Now, as in Renaissance Italy, even well-regulated militia can seldom overcome regular military; they are unseasoned and outgunned. The Federalist hope that the state militia would be a check on the vast standing army of the 21ˢᵗ century United States is forlorn. Even less effective are paramilitaries. There seems no satisfactory answer to that challenge: widespread availability of battlefield weapons to civilians creates the opportunity but does not grant the ability to organize into an effective force. Few modern uprisings in the USA and elsewhere have succeed in doing anything but killing in numbers ranging from small to vast. In addition, the widespread availability of battlefield weapons is itself a source of danger, enabling terrorism and increasing the lethality of violent crime.

Paramilitaries of varying degrees of regulation, however, have over and over become a part of US history: they became the infamous, murderous slave patrols of the slave states. The slave patrols later became Confederate soldiers, and still later the brutal racist terrorists of the segregated South. The regulated militia, the National Guard, after the civil war, also became a tool of capitalism at its worst, used against strikes and, indeed, any sufficiently unpopular organized political activists.

The personal right to self-defense with arms was mentioned by Burgh:

No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion. And though for a while, those, who have the sword in their power, abstain from doing him injury, yet by degrees he will be awed into submission to every arbitrary command.[33]

This right has often claimed by 21ˢᵗ century firearms advocates as part of the Second Amendment, was not part of the Second Amendment, as the prefatory clause “A well regulated militia…” shows. It was a part of common law; no 18ᵗʰ century gentleman (and certainly no Scotsman) would be denied that right. Madison, who had read Burgh, did not include it in the Second Amendment and, of the original 13 states, only Pennsylvania had such a right in statute law. That right was a matter of swords, unreliable single-shot pistols, muzzle-loading muskets, and early slow-to-load rifles. The Colt revolver emerged decades after the Second Amendment was passed, and the modern rifle and semi-automatic pistol after that. The laws codifying a right to self-defense were also written later; in three states the right was granted only to white men.[34] In the wake of recent white supremacist terrorism enabled by easy access to firearms, this is an area of law in dire need of updating.

It seems to me important to align our thinking on the Second Amendment with the actual history of the amendment. The current governing Supreme Court decision on the Second Amendment, District of Columbia v. Heller,[35] is based on invalid history; republicanism is mentioned neither in the decision or the dissents. Racism also is not, yet it certainly was a factor. The earlier United States v. Miller[36] does at least allude to republicanism, but it would have been well had it said more.

It is hard for any people to say that any of their founding principles are wrong, yet it seems that is what is called for here. If many republican ideals remain powerful, yet others must be set aside. Even in its own time, the militia ideal was an unrealistic anachronism. Suggesting the repeal of any of the amendments of the Bill of Rights is risky; one amendment having been repealed, others might follow. Instead, a more historically accurate interpretation of the law seems sensible; modest weapons for self-defense and sport and membership in the various state Guards and militia for people who desire to serve. A strict liability standard for firearm users and owners seems sensible,[37] as do requirements for the inclusion of various safety technologies in civilian firearms.[38] At the strongest, a case could be made for the restriction of the right to keep arms to members of a well-regulated militia – that is, members of one of the State Militias or National Guards.

This is not going to be achieved quickly. Yet lethal violence has become a commonplace in the USA and the easy availability of firearms enables it, as it does more organized terrorism. We need to change our thinking and our laws.

Notes on Part 5

[30] Fletcher, Discourse, pp. 6–9

[31] There is some doubt as to whether the highlanders recognized any obligation to service at all. Andrew Fletcher sourly commented, "Nor indeed can there be a thorough reformation in this affair, so long as the one half of our country, in extent of ground, is possessed by a people who are all gentlemen only because they will not work; and who in everything are more contemptible than the vilest slaves, except that they always carry arms, because for the most part they live upon robbery.” – Andrew Fletcher, "The Second Discourse Concerning The Affairs Of Scotland." Fletcher, Andrew. Two Discourses Concerning the Affairs of Scotland, 1698. The Association for Scottish Literary Studies. Accessed October 15, 2017.

[32] Eugene Volokh. “State Constitutional Right to Keep and Bear Arms Provisions.” Texas Rev. of Law & Politics 11, no. 1 (Fall 2006): 192–217.

[33] Burgh, Political Disquisitions Vol II, p.390.

[34] Volokh, cited above.

[35] Justice Scalia. 2008. District of Columbia v. Heller (Justice Scalia, Opinion of the Court) U.S. Supreme Court.

[36] J. McReynolds. 2016. United States v. Miller. 1939. United States v. Miller. U.S. Supreme Court.

[37] Jim Wright. 2015. “Bang Bang Sanity.” Weblog. Stonekettle Station. 26 June 2015. Accessed 12 July 2017.

[38] Hemenway, David. 2004. “Ch 10: Policy Actions.” In Private Guns Public Health, 209–23. Ann Arbor: University of Michigan Press.

"A Well Regulated Militia" - part 4

Madison, Jefferson, and Hamilton: the Second Amendment and the Militia Acts

Jefferson’s library contained Fletcher’s Discourse; Jefferson spoke well of Fletcher.[17] Moreover, James Madison, who wrote the Bill of Rights which included the Second Amendment, was a regular visitor at Monticello.[18] Konig, in “The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of ‘The Right of the People to Keep and Bear Arms,’”[19] points out that the loss of the militia right in Scotland was an influence in the British North American colonies. Americans, as British subjects, yet not English, feared that, just as Scotland had lost its militia, so might Americans. The British American founders mixed their republicanism with federalism, and so the states were granted the rights to choose the officers of the militia.

No record of James Madison’s reasons for including the Second Amendment in the Bill of Rights survives. For the other amendments, Madison’s rationale is plain and some of it is set out in The Federalist Papers[20], though it is wished more was known about Madison’s thought.[21] But why the Second Amendment?

The Federalist Papers touch on the militia in two places: Federalist 29, by Hamilton, and Federalist 46 by Madison. In Federalist 29, Hamilton makes the case for a “select militia,” well-regulated by the Federal government, but with some authority reserved to the states:

It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "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."

In Federalist 29, Hamilton professes surprise that this had become a sticking point in the acceptance of the constitution; the idea that there was a right to form a paramilitary force and rebel against the proposed Federal government was present even then. Konig cites Scots Highlander refugees who supported this view in North Carolina.[22]

In Federalist 46, Madison addresses the possibility that the Federal government would become tyrannical. He badly misjudged the course of history in writing: “Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States,” but did also comment:

If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.

He did not foresee the vast standing military of our time and so, as Fletcher might have said of the baronial militias, Madison said of the state militias “To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

Madison included James Burgh’s Political Disquisitions[23] in his “Report on Books for Congress,”[24] the seed of the Library of Congress, and Burgh extensively quoted Fletcher[25]. The arguments were, as Konig points out in “A Missing Transatlantic Context,”[26] derived from the Scottish militia debate and ultimately Fletcher. Returning to the why of the Second Amendment, Prof. Carl T. Bogus, in his essay “The Hidden History of the Second Amendment,”[27] argues persuasively that the Second Amendment was included in the Bill of Rights to secure the ratification of the Constitution by the state of Virginia, and that it did so by protecting slave patrols from federal intervention. One can add to that that Madison does not seem to have cared very much about either firearms or militias. His “Notes on Government” do not mention either; he was much more interested in issues of governance in historical context.[28] Bogus, as I said, is persuasive, but the available evidence is indirect; his case is not proven and unless new historical evidence comes to light, seems unlikely to be proven.

Whatever Madison’s reasons, first the Second Amendment was ratified, and then the Militia Acts of 1792 were passed, creating a network of Fletcherian militias in the USA. It is difficult to see how Fletcher could not have been used as a reference; the US militia, save only in specifics of training methods, was very much as Fletcher describes. Service in the militias immediately became a deeply resented obligation, often honored in the breach. In the end the same arguments that ended the advocacy of the Scottish militia were taken up in the United States. Hamilton’s argument in Federalist 29 was proven correct; putting the entire USA under arms was deemed expensive and unnecessary and ultimately the states relieved most citizens of their militia duties.[29]

Based on the experience of the Revolution, the formal role of the militia was reduced to domestic peacekeeping and first line home defense, and there, mostly, it has stayed.

Notes on Part 4

[17] On Fletcher, Letter from Thomas Jefferson to the Earl of Buchan, 10 July 1803. “the political principles of that patriot were worthy the purest periods of the British constitution. They are those which were in vigour.” Jefferson badly missed the point here; Fletcher was a marginalized reactionary.

[18] Gaye Wilson, and Anna Berkes. “James Madison.” Thomas Jefferson Encyclopedia. Monticello, Virginia: Thomas Jefferson Foundation, February 2003.

[19] David Thomas Konig. “The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of ‘The Right of the People to Keep and Bear Arms.’” Law and History Review 22, no. 1 (Spring 2004): 119–59. doi:10.2307/4141667.

[20] Hamilton, Alexander, John Jay, and James Madison. The Federalist Papers, 1788. 

[21] See: James Madison. “Report on Books for Congress, [23 January] 1783.” Accessed July 13, 2017. Also see: Sheehan, Colleen A. The Mind of James Madison: The Legacy of Classical Republicanism. Cambridge: Cambridge University Press, 2014.

[22] Konig, “A Missing Transatlantic Context,” p. 150. Ironically, many Scots Highland refugees in the colonies were English loyalists.

[23] Burgh, James. Political Disquisitions; or, An Enquiry into Public Errors, Defects, and Abuses Illustrated by, and Established upon Facts and Remarks, Extracted from a Variety of Authors, Ancient and Modern. Philadelphia: Printed and sold by Robert Bell, in Third-Street; and William Woodhouse, in Front-Street, 1775.

[24] Madison, James. “Report on Books for Congress, 1783,” January 23, 1783. 

[25] Burgh, Political Disquisitions Vol II, p.391.

[26] David Thomas Konig. “The Second Amendment: A Missing Transatlantic Context…” cited above.

[27] Bogus, C. T. “The Hidden History of the Second Amendment.” University Of California Davis Law Review 31, no. 2 (Winter 1998): 309–408.

[28] Sheehan, The Mind of James Madison, cited above.

[29] John K. Mahon. History of the Militia and the National Guard. Macmillan Wars of the United States. New York : London: Macmillan ; Collier Macmillan, 1983.

"A Well Regulated Militia" - part 3

Scottish Republicans

The Alarming Andrew Fletcher

The 18ᵗʰ century ideal of a militia came from Saltoun, near Edinburgh, the holding of the alarming (in the words of historian John Robertson) Scottish republican Andrew Fletcher.[6] Scotland, like most European states of that time, had a monarch, but unlike the others, Scotland combined monarchy with the old highland tribal order of clans, martial prowess, and personal loyalty. Fletcher took this as a model for his militia. In his radical 1698 A Discourse of Government with Relation to Militias[7] Fletcher argued for a modernized Scotland equally capable martially and commercially. His Scots martial idealism found an intellectual rationale in the classical republican idea of the militia. In answer to the observation that militia consistently lost battles, he replied that these were “ordinary and ill-regulated militia.”[8]

Most Scotsmen were fighters, but it was difficult to organize them into effective fighting forces; in Fletcher’s language they were ill-regulated. The Scots, especially the Highland Scots and the Border clans, were strong and valorous as individuals and in small bands but unwilling to accept the discipline – the regulation – that forges individuals and bands into an army. Well-organized and well-trained – regular – military could and did overwhelm them. To replace the ordinary and ill-regulated militia, Fletcher proposed a “well-regulated militia,” that is, a force of citizen soldiers under military discipline.[9] Fletcher’s militia was to be created by universal conscription and military training. He wrote:

What I would offer is, that four camps be formed, one in Scotland, and three in England; into which all the young men of the respective countries should enter, on the first day of the two and twentieth year of their age; and remain there the space of two years, if they be of fortunes sufficient to maintain themselves; but if they are not, then to remain a year only, at the expense of the public.


they would learn to fence, to ride, and manage a horse for the war; to forage and live in a camp; to fortify, attack, and defend any place; and what is no less necessary, to undergo the greatest toils, and to give obedience to the severest orders.


But certainly it were no hard matter, for men that had passed through such a discipline as that of the camp I have described, to retain it after they should return to their several homes; if the people of every town and village, together with those of the adjacent habitations, were obliged to meet fifty times in the year, on such days as should be found most convenient; and exercise four hours every time: for all men being instructed in what they are to do; and the men of quality and estate most knowing, and expert of all others, the exercise might be performed in great perfection. There might also be yearly in the summertime, a camp of some thousands of the nearest neighbours brought and kept together for a week to do those exercises, which cannot be performed in any other place: every man of a certain estate being obliged to keep a horse fit for the war.[10]

Scotland loses and finds its militia

Scotland and England were combined into Great Britain by the Treaty of Union in 1706, and laws enacted that created a single British Parliament in London and did not create a Scottish militia; refusing royal assent to the Scottish Militia Bill in 1708 was the last veto by the British Crown to this date. This was felt to be a great loss, but with continuing revolutionary activity from the Jacobites, the Scottish supporters of Stuart pretenders to the British throne, London was not willing to allow the arming of the Scots. Fletcher died in 1716, having published nothing in the previous 12 years, and there the matter rested for 30 years.[11]

Then came the Scottish Enlightenment. The question of how to arm and defend the state was an issue of continuing discussion, the moreso since England and Scotland were both subject to the British crown but, somehow Scotland was John Bull’s neglected sister Peg in policy. It was a lack felt keenly, as Scots loyal to the Crown were first threatened by the Jacobites, and then by the American naval captain John Paul Jones, and had no way to raise a force to respond.

This history is recounted in John Robertson’s The Scottish Enlightenment and the Militia Issue.[12] During the Scottish Enlightenment, the question of how to defend Scotland was first addressed tangentially by none other than the famed philosopher David Hume in his 1752 Political Discourses[13]. He also briefly discussed the militia in his 1748 anonymously published pamphlet “A true account of the behaviour and conduct of Archibald Stewart” and in a few paragraphs of his History of Great Britain.[14] According to Robertson[15], in “Archibald Stewart,” Hume acidly observes that, in the 1745 Jacobite Rising, Edinburgh had been better-defended by its chamber pots than its available forces, the Scots still being forbidden a militia.

In the early 1750s, the militia ideal was taken up by friends of Hume, a politically influential group known as the Moderate Literati: William Robertson, Alexander Carlyle, Adam Ferguson, John Home, and Hugh Blair. It seems likely (John Robertson points out[16]) that the inability of Edinburgh to defend itself against the Jacobites in 1745 was a formative experience for the group. They agitated for a Scottish militia until 1783. Ultimately the political goals of this movement were to be achieved in other ways, and practical considerations ended the idea of putting all of the able manhood of Scotland under arms. The militia proposals never included specifics: not locations, lines of command, headquarters, or funding; the proponents were not practical people. Funding especially was an issue – Scotland was not a rich country. The idea that being required to enlist in the militia was a valuable right was one that was not widely shared by a public which would just as soon not be drafted. Long after the political goals of the Moderates were achieved, the Militia Act of 1797 was passed, empowering Scottish Lord Lieutenants to raise county militias.

The Scottish Enlightenment recounts an extensive and obscure history, far too much for even a longer summary here, but for our purposes let us note that discussion of the militia through the period always focused on Fletcher’s model of a well-regulated militia; one with officers and under military discipline.

Notes on Part 3

[6] John Robertson. 1985. “Ch. 2: The Challenge of Andrew Fletcher.” In The Scottish Enlightenment and the Militia Issue, 22–59. Edinburgh: John Donald publishers.
[7] Andrew Fletcher. 1698. A Discourse of Government with Relation to Militias. Edinburgh.
[8] ―, p. 42.
[9] This was apparently the first use of the phrase “well-regulated militia” in English, over which so much ink has been spilled.
[10] ―, pp. 51-56
[11] Robertson, The Scottish Enlightenment, p. 53
[12] Robertson. “Ch. 3: David Hume and the Moderate Literati.” In The Scottish Enlightenment.
[13] Hume, David. Political Discourses. 2nd ed. A. Kincaid and A. Donaldson, 1752.
[14] Hume, David. The History of Great Britain: Vol. I. Containing the Reigns of James I. and Charles I. Edinburgh: Hamilton, Balfour, and Neill, 1754.
[15] Robertson. The Scottish Enlightenment, p. 73.
[16] ibid., pp. 76-77.

"A Well Regulated Militia" - part 2

The Classical Republican Militia: Machiavelli in Florence

Classical Republicanism

In the Italian Renaissance, ancient philosophy was rediscovered, and modern ideas of government were invented. Classical republicanism was an attempt to resurrect the Classic Republic of Rome. The Florentines living on the Italian peninsula had no doubt that Rome was great; they lived among the vast ruins of the Roman Empire that was.

The Renaissance Italian philosophers and artists considered themselves the heirs of Rome. While true on one level – they had inherited the land, the ruins, the treasures of the ancient world – on another level it was quite false. The culture of Renaissance Italy was not an extension of ancient Rome, but something new, vital, and different. The people of the Renaissance invented new ideas based on their interpretations of the ancients’ actions. Some of these they called republicanism from the Latin res publica – literally the “public thing,” more usually translated as “commonwealth.”

In classical Rome the ideal republic was a representative democracy within and a conquering power without. Their model of the military was universal conscription of young male citizens to pursue endless wars of conquest. The Romans military was called by the classical Latin word militia. As Rome’s grip weakened in Western Europe, and feudalism rose, the word militia came to have a second meaning: that of a feudal levy, though the earlier meaning also persisted.[4]

The renaissance republican ideals included liberty, citizenship, the common good, equality before the law, justice for all, civic participation, patriotism, peace within the republic, and public office holding limited by time. These are all familiar ideals and widely accepted by the people of the modern United States. Also familiar, if less widely accepted in current times, was their ideal of universal military service and continuous conquest or “expansion.”

The Failure of the Florentine Militia

The Roman Republic, and later the early Empire, continuously expanded through conquest and was therefore continuously at war. To support this vast project every young Roman male citizen was required to serve in the military. Rome’s entire economy, political system, and culture was built around asymmetric warfare. Rome’s tactics were far superior to the tribal peoples it battled. While the Romans had many strategic failures, ultimately they conquered each piece of new territory.

Sixteenth century Florence modeled itself on a flawed historical understanding of the Roman republic and attempted impossible conquests[5]. The Florentines did not understand that Rome was a new thing in history; it was conquering tribal states with new tactics and incorporating them into its republic. Florence was a small republic surrounded by larger polities and alliances of polities, all using the roads built by Rome. The Florentine militia, organized by Machiavelli, was overwhelmed during the War of the League of Cambrai by a much larger and better supplied Papal army at Prato in 1512, in a battle that barely rates a footnote in most English-language histories and, with the Florentine militia, the Florentine Republic was also overwhelmed.

Notes on Part 2

[4] “Militia, N.” OED Online. Oxford University Press. Accessed October 3, 2017.

"A Well Regulated Militia" - part 1

From Renaissance Florence to The Constitution of the United States

This essay was inspired by Andrew Fletcher’s 1698 "A Discourse of Government with Relation to Militias,"[1] from which, it seems, we get the phrase “a well regulated militia.” But why was Fletcher writing about the militia? And how did that phrase end up in the US Constitution?

That history, I found, runs from Machiavelli in the Italian Renaissance, through Fletcher’s Scotland, to the British colonies in the New World, and finally to the United States, the first modern republic.

In the early 16ᵗʰ century, Machiavelli argued for a citizen militia based on the Roman model.[2] He attempted to put this theory into practice in Florence. Failure or success is debatable; the militia of Machiavelli’s Florentine Republic was overwhelmed by vastly superior forces. Yet the idea of a military of the people, rather than a royal force that kings used to impose unjust policies, was attractive and became an ideal of classical republicanism.

In Scotland, nearly a century later, Fletcher proposed a “well-regulated militia” which would include the entire young able-bodied manhood of Scotland, eschewing both mercenaries and selective conscription. Finally, in the new United States of America, again, nearly a century later, Fletcher’s ideals came to fruition, and were made into law in the Second Amendment to the Constitution and the Militia Acts of 1792.

That law was mostly honored in the breach. In his 1801 Presidential inauguration speech, Thomas Jefferson said, “a well disciplined militia, our best reliance in peace, and for the first moments of war, till regulars may relieve them,”[3] placing the militia in a secondary position, a backstop to regular military. That sentiment, this statement, reduced the role of the militia to domestic peacekeeping and first line home defense, and there, mostly, it stayed. Yet the ideal of the militia persists, and the Second Amendment remains a source of controversy.

Let us examine the details.

Notes on Part 1

[1] Andrew Fletcher. 1698. A Discourse of Government with Relation to Militias. Edinburgh.

[2] Machiavelli, Niccolò. The Art of War, 1521. Translated by Peter Whitehorne, 1521.

[3] Jefferson, Thomas. 2016. “First Inaugural Address, 4 March 1801.” Founders Online: III.

"A Well Regulated Militia" - part 0

This is a long-form piece I've been working on for some time that has abruptly become current. It is largely historical, though at the end it does modestly address current policy issues. I am going to run it in several, probably five, parts following this introduction. I hope to gather it up and bring it out as an inexpensive ebook.

The genesis of the piece was some decades ago research into the Second Amendment and the militia. One of the works I read was the commonly-cited-by-firearms–advocates 1698 ”A Discourse of Government with Relation to Militias” by Andrew Fletcher. The “Discourse” contains what may be  the first use of the phrase “well-regulated militia;” certainly one of the earliest uses. But how did this phrase make it into the Constitution? What was Fletcher doing writing about militia anyway? And what does it all mean for us, now?

This essay is an attempt to answer those questions.

Note: for the moment I have turned on comment moderation; this is a controversial topic and I don't want to drown in a firearms debate.

Here is a list of all the parts, with links:
Part 1 - From Renaissance Florence to The Constitution of the United States
Part 2 - The Classical Republican Militia: Machiavelli in Florence
Part 3 - Scottish Republicans
Part 4 - Madison, Jefferson, and Hamilton: the Second Amendment and the Militia Acts
Part 5 - Summation: Whither the Second Amendment?

Thursday, February 22, 2018


I am pleased to be divided from the lovers of death and destruction, from the people who enabled the murder of 17 in Parkland. – Tweetstorm finale

One More Step Through the Gates of Hell

(Tweets written in exasperation.)

With its advocacy of widespread deployment of battlefield weapons, the Republican Party, influenced by the NRA, is supporting widespread stochastic terrorism, which perhaps will do in the stead of the paramilitaries which have been part of the historical fascist movements. – Tweetstorm

Wednesday, February 21, 2018

A Vision of Violence

This seems a good time to run this, from 1969. Some of it is dated, and the full book is even more dated, but look at what the author got right.
Take the fine expensive home you live in, with its automatic defenses and its mines sown under the lawn like daffodil-bulbs. You shut yourself up behind armor-plate, you shut your mind, too. You advertise Guardian traps on your show, don't you—those steel bands spiked like an iron maiden? What's the mentality of someone who's prepared to come home from visiting neighbors and find a corpse hung up in the doorway? I say he's already insane when he commits himself to that course of action, and you don't have to wait for him to lose his marbles under an overdose of [psychoactive drugs] before he stops thinking as a responsible mature person ought to! And what's the reason that's advanced for acting this way?

[Individualism!] And what's this been twisted into? The biggest Big Lie in history! It's no use making your life so private you refuse to learn from other people's experience—you just get stuck in a groove of mistakes you need never have made. We have more knowledge available at the turn of a switch than ever before, we bring any part of the world into our own homes, and what do we do with it? Half the time we advertise goods people can't afford, and anyhow they've got the color and hold controls [analog tech] adrift because the pretty patterns are fun to look at when you've bolted and barred your mind with drugs. Split! Divide! Separate! Shut your eyes and maybe it'll go away!

We mine our gardens, we close our frontiers, we barricade our cities with […] lines to shut off black from white, we divide, divide, divide! It gets into our families, […], it gets into our very love-making! Christ, do you know I had a girl student last year who thought we was having an affair with a boy back home and all they'd ever done was sit in front the comweb and masturbate at each other? Twenty miles apart! They'd never even kissed! We're going insane, our whole blasted species—we're heading for screaming ocholophobia! Another couple of generations and husbands will be afraid to be alone in the same room with their wives, mothers will be afraid of their babies, if there are any babies!

And for what purpose? Why are we encouraging the spread of this lunacy? I mean we here, in North America. I don't mean […] the richest people in the world battening on the poorest. That's just greed, which is a comparatively clean kind of vice. I'm talking about perversion, horrible, disgusting, systematic, deliberate perversion of the power of reason to destroy people without killing them, to strip them of their initiative, their joy in life, their hope, […], their last ultimate irreducible human resource, hope. Out of sheer desperation millions of people are abandoning the use of reason, bankrupting themselves to buy [new age junk], in a last puerile attempt to outdo the bastards who've made "reason" a dirty word.

They've done it, you know—it's the dirtiest word in any human vocabulary right now. And it's been brought about in my own lifetime, almost entirely. Cold rational decisions, every step leading to them perfectly logical, underlay the wars in Asia […] and at every step we lost. Not just the wars, but bits ourselves. Compassion. Empathy. Love. Pity. We systematically chopped ourselves down to the measure of a machine.

How could you expect a man to be a good neighbor when he's spent years shooting at shadows, moving tree-branches, silhouettes on window-shades? How could you expect him to be a good citizen when he's seen his government authorize the killing of thousands, millions of other human beings? How could you expect him to be a good father when he's spent his early twenties torturing children to get information about enemy troop positions? That started as far back as the seventies, wasn't it? – John Brunner, The Jagged Orbit, 1969.

Friday, February 16, 2018

Dealing with Trump

In dealing with Trump, it may help to remember that he says what will persuade, but keeps returning to his own agenda.

Do not trust his promises.

Tuesday, February 13, 2018

Todays Bad News

Facebook's terrible, horrible, no good, very bad two years or, how the victimized right wing won again and Facebook made a ton of money from it. Facebook seems to have replaced television as the yuge media source not to watch if you want to be well-informed. Link.

The New York Times gives op-ed space to discredited firearms researcher and advocate John Lott. (No link. The NYT's publishers have gone fascist. F– 'em.) I like political scientist Henry Farrell's remarks on Lott:
"Why yes indeed. You could say that More Guns, Less Crime drew heated criticism. But then, you might prefer to ask why John Lott became a public laughing stock before you got into detailed back-and-forths about the econometrics. Mysteriously disappearing surveys. The wonderful Mary Rosh, a former ‘student’ of John Lott’s who went after Lott’s critics on the Internet, and gushed about [Lott] before she was revealed as a sockpuppet for John R. Lott himself. And finally, the famous lawsuit against Steven Levitt.[…]
"What we can’t check is how many specifications Lott tries and discards before coming up with those that suit his prejudices. But we can observe that he bats 1.000 in this respect. On a vast range of subjects, his econometric analyses always come up with the same conclusion: The Right is right."
And, finally, the Department of Agriculture proposes replacing SNAP, which allows desperately poor people to buy food for their families with a government-funded debit card, with a monthly box of agribusiness-selected preserved foods. "Poverty sucks," say the rich people.

Thursday, February 8, 2018

What will mass deportations be like?

So, let's say that (as seem depressingly likely) the Democrats do not successfully manage to get any form of DREAM act passed. So, what happens then?

Does Homeland Security already have a plan in place for mass deportations? How would they be implemented? What is the impact? Here's a few thoughts on the Mexicans, who are perhaps half of the DACA recipents; 345,000 people.

Some 76% of DACA recipients are from Mexico or Central America. That is perhaps a half a million people, most of them probably Mexican. Let's suppose that Homeland Security attempts to apprehend these people as their authorizations expire. Some go underground, some are apprehended and deported – to where? Mexico is a big place, and Mexico City, deep in the mountainous interior, is very different from Monterrey in the Northern border state of Nuevo León, and that, in turn is different from Mexican border cities like Tijuana and Juarez. Without family in Mexico, they likely will find their way difficult.

What happens in the USA? Undocumented Mexicans are a significant population in the USA. Does Homeland Security start running sweeps? How does their neighbors react? What is done when US citizens are swept up in this wide net?

And on, and on.

Monday, February 5, 2018

A General Reaction to the News Lately

They're all crazy! Nucking futz!

(Regular blogging will return tomorrow after this interruption.)