A Horror That Could Yet Happen
the Congress with its own domestically oriented army
It’s in our (U.S.) Constitution.
Many people don’t realize it, but in the (in)famous Second Amendment of our Constitution, before getting around to a right “to bear Arms,” it reads, “A well regulated Militia being necessary for the security of a free State.” So the right to bear arms in that sentence is related to a “well regulated Militia,” which is related to “the “security” of the nation.
A right to bear arms is not specified to provide a defense for ‘the people’ against the government. It is there to establish a decentralized store of arms for the Congress’s own armed force, the Militia.
You see, that is not the first mention of a “Militia” in that document. It is referred to at some length (relative to the length of the whole thing) in Section 8 of Article I, where the powers of the Congress are enumerated.
Today, that part of Section 8 is a bizarre thing to read. It explicitly gives the Congress the power to raise, fund, supply, “discipline,” and “call out” its own army: the Militia.
Why would the Congress need its own army in the form of a militia?
Back then mistrust of a ‘standing army’, a permanently existing army, was one of the most important issues of concern to ‘the people’. For one thing, standing armies cost money, meaning people would be taxed to pay for it. Taxes were a much bigger deal back then. There was very little money in circulation. It was a hardship for ‘the people’ to get their hands on a chunk of money for paying taxes. Also, in the nations of Europe ruled by monarchs people had been forced to house and feed soldiers, even in times of peace. Moreover, having a standing army made armed adventurism a ready temptation, making serial wars a way of life. Worst of all, monarchs had historically used standing armies to impose their arbitrary wills on ‘the people’ in the nations they ruled.
In section 8 the Congress is granted the power “to provide and maintain a Navy” and “to raise and support Armies.” Only in the case of the latter is it specified that “no Appropriation of Money for that Use shall be for a longer Term than two Years.”
Politically, there was no way the Congress, being the instrument of ‘the people’, could have a standing army of its own. If it was to have an army, that could only be in the form of a militia.
But why would the Congress need an army of its own, even as a militia?
By the end of our Revolutionary War the idea of a standing army was a fait accompli. Almost everyone realized that in Modern times, give the realities of advances in transportation in a world of nation-states in which armed force was seen as a routine instrument of national interests, invasion was an ever-present danger. No nation could hope to “provide for the common defense” without the existence of a standing army.
In this new nation that army would be under the control of the president. Our Constitution does include specific constraints regarding that army, but its mere existence was still a source of unease: the president would have an armed force at his disposal (no one alive at that time envisioning any possibility of a female president).
Our Constitution brilliantly realizes the concept of a balance of powers related to the functions of government: making, enforcing, and adjudicating laws. There is no supreme power among the offices of government. [Early on, under the leadership of John Marshall (confirmed as Chief Justice in January of 1801), the Supreme Court established itself as the supreme arbiter of the nation, but at the same time, in accordance with the Constitution, did recognize bounds on itself.]
Yet, the Congress saw itself as, should push come to shove, the repository of the ultimate governmental authority. After all, our Declaration of Independence was issued by a Continental Congress and the Constitution was itself the product of a congress of a kind. Moreover, the Congress is ‘the House of the People’ in a nation in which ‘the people’ are deemed to be the ultimate power. Should a serious enough dispute arise between the presidency and the Congress, in which the president might seek to involve the nation’s standing army (through threats if not actions), the Congress would need an army of its own at its disposal.
A clear purpose of the Second Amendment was to ensure that the Congress would have an army that was already armed (and “well regulated”) to counter the president and the nation’s standing army, should that become necessary. It’s all right there in Section 8 of Article I of our Constitution. Other possible needs for a Militia are there as well, but the possibility of a final “contest of power” (Michel Foucault) between the presidency and the Congress is clearly evident.
Unfortunately, those ‘needs’ are not specified as rigorously as one might hope. Neither are further issues related to the existence of that army in itself, such as its “discipline.” There is plenty of leeway for the Congress to interpret possible ‘necessary’ uses for its army in the name of “the security of the nation” as well as further considerations concerning that army’s existence.
It is the case that all matters related to that army involve both houses of the Congress. So even if such an army existed this Republican Congress (without the “the” in front of “Congress,” that word refers to the House of Representatives) could not by itself do anything concerning that army. On the other hand, the existence of such an army in the hands of that political party is a horrific thing to contemplate, and the power to establish such an army as an instrument of repression is still right there in our Constitution.
On the other hand, given that the right in that amendment is linked to an army that the Congress has never organized, much less regulated, the very existence of that right is called into question.
If there is one further amendment to our Constitution that we need to make, it is to abort the power of the Congress to form its own army.