Monday, August 07, 2006

Militias both home and abroad

Sandy Levinson

If there is any proposition that almost all right-minded people are committed to, it is the illegitimacy of "private militias" in Iraq and Lebanon. The sole alternative to such militias appears to be a single centralized army controlled by the national government, thus adopting Max Weber's dictum that the (centralized) state apparatus must possess a "monopoly" over the legitimate means of violence.

There is undoubtedly much to be said with regard to the desirability of disarming such private militias as Hezbollah in Lebanon and the various militias in Iraq. From my own perspective, the world would be better off with the disappearance of Hezbollah, not to mention many of the Iraqi groups who are taking the country into what appears to be an already savage civil war. But a brief look at both American history and, indeed, the American present, demonstrates why much of the discussion about such militias approaches the fatuous.

The Second Amendment is widely agreed, even by those who oppose the "individual rights" view that would protect individual ownership of arms, to protect "state militias" as a complement, or even alternative to, the standing army that was, not without controversy, authorized by the original constitution. Such state militias were scarcely insignificant, either ideologically or even, on occasion, in practice. Thus, one contributing factor to Thomas Jefferson's election in 1800, over intense Federalist opposition, was the threat by the Democratic governors of Pennsylvania and Virginia to call out their state militias to march on the new Capitol in Washington if the Federalists did not recognize the legitimacy of the 1800 election and their displacement by the radical new sensibility represented by Jeffersonian and the Jeffersonians. It is, to put it mildly, ironic that a US Government that has assidulously courted the NRA and adopted a strong reading of the Second Amendment is so devoted to centralization of the means of violence elsewhere, since that is contrary to the American political tradition. George W. Bush keeps prating about the universal desire for "freedom," yet one constitutive aspect of that "freedom," his Administration argues with regard to the US, is the "right to keep and bear arms." Is this a right to be enjoyed only by Americans--if so, why?--and not by all freedom-loving peoples' everywhere? If others are to be expected to surrender their arms to a centralized state, then why shouldn't Americans be expected to do so as well?

Just to be clear, I do not necessarily mean to be praising this aspect of the American tradition. It directly contributed to the relative ease with which secession and resistance to the central government could be contemplated--and carried out in 1861. But this doesn't lessen the fact that any serious examination of our tradition must recognize that it rejects in very dramatic ways the Weberian dictum, at least if one defines "the state" as the central government.

Nor is the controversy entirely absent today. David Broder has an interesting article in yesterday's Washington Post setting out gubernatorial opposition, from Republicans and Democrats alike, to proposals "to expand the president's authority to take over National Guard troops in case of natural disaster or homeland security threats." Republican Governor Mike Huckabee of Arkansas, who is apparently contemplating a bid for the White House in 2008, said that such a shift of control "violates 200 years of American history" and is symptomatic of a larger federal effort to make states no more than "satellites of the national government." He was joined in his opposition by Iowa Gov. Tom Vilsack, who has also been mentioned as a potential Democratic candidate, who called the proposal "one step away from a complete takeover of the National Guard, the end of the Guard as a dual-function force that can respond to both state and national needs."

To be sure, contemporary state militias do not present the same kinds of threats to political stability as to militias in Lebanon and Iraq. But the central point is that no one should readily expect complete centralization of the means of violence in any polity where a significant body of the citizenry, especially if it is geographically distributed, simply does not have sufficient trust in the central government to disarm and/or accept complete subordination to the center.

I have earlier referred to "private militias." But one might also consider the "permurga," the functionally independent army of the Kurds in northern Iraq. Consider the following question: Would any serious person advise the Kurds to turn their arms over to a central Iraqi government dominated by Shi'ite (and Sunni) Arabs? I trust that the question answers itself. So why, precisely, should be answer be different for "private militias" representing significant groups who, with some justice, do not yet trust the Iraqi government to be adequately protective of its interests?

Again, to be absolutely clear: I would much prefer a world in which Hezbollah devoted itself only to doing good works for Lebanese citizens and where the Mahdi militia laid down its arms and acquiesced to the sovereignty of an Iraqi government that indeed fairly represented all of the groups within Iraqi society. But this is to engage in fantasy, alas. One might at least try to understand why control over the means of violence is perhaps the central political issue in any serious design of a constitution for a divided society. This is why the Second Amendment should be front and center in any consideration of the nature of our own original constitutional system, whatever it should mean today, and how our own history might lead us to a more complex and nuanced view of what we can plausibly demand and expect to receive from the deadly serious political groups in such countries as Lebanon and Iraq. (And, I note for the record, Israel has scarcely moved to disarm right-wing settlers in the West Bank.)


Whatever else the Founder may have intended when they passed the Second Amendment, I think it is safe to assume the did not intend Hezbollah, the Madhi Army, the Ku Klux Klan, etc. The proof of this is that they provided for state militias to be called into federal service, among other reasons, to suppress rebellions. Let us not forget that the Constitution was founded in the shadow of Shays' Rebellion, which the Founders clearly condemned, and that when the Whiskey Rebellion broke out, Washington responded by federalizing local state militias to suppress it.

this post highlights two tendencies that I think inhibit serious dialogue on many issues: the first, which the post demolishes quite nicely, is to "assume the obvious" (in this specific instance, that quasi-independent militias are unequivocally bad and never to be tolerated) rather than to "question the concensus" which is often more appropriate.

the second, characterized by the bush admin's "prating", is that what applies to "us" applies - unaltered by differences in culture, history, geography, etc - to "them" (in this instance, that if only the central political entity has the will, it can dictate to all in the geographical entity).

the latter has been disastrous for civil discourse in the blogosphere about the current israel-lebanon tragedy in which otherwise intelligent and rational people (professors and students at major law schools! am I wrongly assuming high correlation?) are essentially militating for annihilation of the lebanese for not exercising control over hezbollah. holders of this extreme view apparently are analogizing to the responsibility of the US federal government for an unauthorized armed incursion into canada by the vermont national guard. a better analogy (admittedly an oxymoron - analogies almost always fail) might be sherman's march, essentially retribution against a populace that had not only acquiesced to but actively supported, attacks on and invasions of what they claimed to be a separate country by what were often effectively independent militias. I wonder if those espousing such a position are critical of sherman for exercising excessive restraint vis-a-vis the southern civilian population.

Hezbollah and many of the foreign "militias" that so trouble unstable regions, would probably be better termed "private armies"; Something the 2nd amendment was never understood to defend. The militias of the 2nd amendment were scarcely even quasi independent, being part-time state armies with leadership subject to government appointment. I kind of doubt the Lebanese government is appointing Hezbollah's command structure.

The flip side of that, of course, was that the 2nd amendment didn't protect the right of states to form militias. It protected the necessary condition for states to be able to raise militias: An armed citizenry, experienced in the handling of weapons of war. The thought was, according to contemporary legal scholars, that even if the states and federal government let the militia system languish, by protecting an armed citizenry the possiblity of raising a militia at need would be safeguarded.

It's somewhat ironic that the late rise of the militia movement in this country was a response to sophistical arguments that the 2nd amendment only protected the right of militia members to be armed. It was, in other words, an unintended creation of the gun control movement.

Militia is a worthwhile and timely topic for Sandy's innovative examination.
While it is common that civilized people drift out of association with raw animal rule of force, that frail and important side of human society often is discovered surprisingly close to the surface.

I have chronicled a few instances in which the National Guard variously helped civil society immensely, or became a pawn in a larger political maneuver over the past few years. I offer the links in the Footnote section to the curious.

With respect to the middle east, I think it must be recognized as a starkly different milieu; and that to describe the political influence of militia in that part of the world is centrally different from the meaning of militia or its institutionalized form, National Guard, in the US.

In a sense, our own modern civilization only grew by suppression of militia and institution of habeas rights, though those are broad plinths upon which to build insight into what is the modern National Guard, and what are our rights to keep and bear arms, or even to arm bears, should we be animal rights partisans. Levity aside, I tend to think the most salubrious outcomes are attained in the most fair of legal constructs; and societies need to mature to enter that realm. International law becomes a fascinating kaleidoscope through which to view the mosaic of rights enjoyed by people in many countries to own arms.

I think the relevance of habeas is important in interpreting the function of firearms in our country. Easily one can recall a fierce debate last winter about ex parte Milligan, and the currently still raging discussion of US presidential signing statements; the de-fanged McCain amendment; Graham-Levin's relinquishment of the US version of parts of what relates to Geneva CA3; the looting of New Orleans; the use of National Guard in 2005 to videotape college campus protests; the deployment of National Guard troops by the 1,000s to a Univ of CA campus by governor Reagan 1966.

The all volunteer army in the US has drawn on state National Guard for dual purposes, one demographic, one skill based: the US army needed the numbers for Iraq, and mobilizing National Guard met those numbers; and the National Guard is trained in civil unrest management less destructively than is the army proper.

The National Guard actually is saving lives of illegal immigrants at the US southern border currently since the president asked governors to supply help for the federal agencies usually responsible for preventing border crossings by illegals.

Two months ago, as the Supreme Court deliberated how it was to finalize the opinion in Hamdan, an enterprising team of Boston Globe reporters decided to trace the faultlines in charges and assertions against and by one of the Gitmo detainees by writing a report after trying to locate the detainee's alibi witnesses in Afghanistan. It turned out the detainee was rendered by political enemies not on a scene of battle, but that the detainee had worked in the gendarmes in Afghanistan under various regimes, some of which activities may have been in what constitutes a local militia, in a land still recovering from a decade-long proxy war on terrain which lends itself to city-statim, much like pre-Garribaldi Italy, or, say, ancient Greece.
Globe finds witnesses.
CA National Guard deploys to southern frontier with MX 2006.
Reagan sends in the billyclubs to UC in another time long past.
UC campus 2006 top administrator registers protest at presence of National Guard filming demonstrators.
CA National Guard unit disbands after state senator complains in a hearing that the NG was filming demonstrators at the capitol; NG unit destroys evidence when it closes shop.
And for a clip which emphasizes how important the National Guard is for saving lives, especially in diasters, scroll down on this page of capsule summaries to a segment about looters in New Orleans hospitals September 1, 2005.

NOTE TWO: Might as well add a token of Americana: an eccentric account of the battle of Bunker Hill in the early American revolution.

I'd like to point out that the National Guard, per unanimous Supreme court ruling, is NOT the "militia" mentioned several places in the Constitution. It's just a farm team for the Army.

Several states DO have genuine militia, but they're in addition to the National Guard.

Re David Shaughnessy's comment, I think that the amendment least likely to be excised from the Constitution, for better or worse, is the Second Amendment.

As for Shaq's comment, I am not aware of any other national constitution that includes anything similar to the Second Amendment (though I've not made a comprehensive search). It is, by and large, a national idiosyncracy of the US. That being said, I still find it a point worth making that members of the Bush Administration (and most others as well) seem unable to draw any implications from the history of the Second Amendment for contemporary constitution drafting.

The right to keep and bear arms is not the only right enshrined in the Bill of Rights which our government typically does not pass on when it gets a chance to weigh in on foreign constitutions. You'll also notice that we tend not push trial by jury, either. Or, for that matter, the sort of enumerated powers doctrine embodied in the 10th amendment and the constitution's structure.

We have a very successful constitution which is based on the theme of limiting and distrusting government. It should not be suprising that the government does not find this theme attractive.

"I think that the amendment least likely to be excised from the Constitution, for better or worse, is the Second Amendment."

Nah, I'd say it was the 17th. And that's definately for the worse.


why the 17th? I have a concern that relates to it (altho indirectly) and wonder if it's the same as yours.


Well, the 17th is the amendment least likely to be repealed, IMO, because repealing it would be such a direct attack on the incumbant Senators who'd have to vote for it by a supermajority for the states to ever see it. (Barring a constitutional convention, of course, which I strongly suspect Congress would find a way to obstruct, even if the states did demand one.)

As for why I'd like to see it repealed, the appointment of Senators by state legislatures was a key factor in maintaining the ballance of power between state and federal governments, which kep the latter's growth in check.

I believe you can trace the cancerous growth of the federal government directly back to that amendment; Not only stripping the Senate of it's role as a check on the federal government, but indirectly stripping the courts of that fuction, too.

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