Category: Fundamental Liberties

I

“It is quite impossible to think of glory. Both mind and feelings are exhausted. I am wretched even at the moment of victory, and I always say that next to a battle lost, the greatest misery is a battle gained.” —The Duke of Wellington, after the Battle of Waterloo

Mr. Trump has left the Presidency, and thus the most immediate and dire menace to our Republic has departed from the stage. But he leaves behind a broken scene.

The Capitol was overrun, and the city of Washington turned into a military camp; cities across the Union smolder after a summer of protest collapsed into the smoke of anarchy and reprisals; four hundred thousand lie dead from disease; and many millions more have been drawn into a sinister delusion that assails the very basis of republican government, confidence in a free and fair election.

Extremists, once obscure, have risen to prominence: on the right, depraved militants laying a false and perverted claim to the traditions and principles of these United States strive after civil war, seeking to intimidate elected officials and do violence to lawful government; on the left, would-be-revolutionaries inculcated with an unforgiving and absolutist ideology seek to purge from public life and private employment all those who fail to recite their slogans.

None of these calamities were present in such strength in 2016. They gathered force during the presidency of Mr. Trump, and in 2020 they crashed down upon us. His selfish malice drove those demons on as they danced in our Union’s fields and streets, until he himself, exposed as the tyrant he always wished to become, stood at the head of an insurrection against the elected representatives of these United States.

Yet our Republic still stands, and, as Mr. Trump fades, the Covid-19 epidemic recedes, and some measure of prosperity and competent governance returns, it may soon appear to recover.

However—

II

“For it [the Roman agrarian law] found the power of its adversaries redoubled, and because of this it inflamed so much hatred between the plebs and the Senate that they came to arms and bloodshed, beyond every civil mode and custom. So, since the public magistrates could not remedy it, and none of the factions could put hope in them, they had recourse to private remedies, and each one of the parties was thinking of how to make itself a head to defend it.”

“In this scandal and disorder the plebs came first and gave reputation to Marius, so that it made him consul four times; and he continued in his consulate, with a few intervals, so long that he was able to make himself consul three other times. As the nobility had no remedy against such a plague, it turned to favoring Sulla; and when he had been made head of its party, they came to civil wars. After much bloodshed and changing of fortune, the nobility was left on top.”

“Later, these humors were revived at the time of Caesar and Pompey; for after Caesar had made himself head of Marius’s party, and Pompey that of Sulla, in coming to grips Caesar was left on top. He was the first tyrant in Rome, such that never again was that city free.” —Niccolo Machiavelli, Discourses on Titus Livy

The Roman Republic did not fall in a day, nor upon the first attempt to overthrow it. It began to decay after its final triumph over Carthage, in 146 B.C. At that moment, Rome stood mighty and unchallenged, but its leaders grew arrogant and its people complacent. They quarreled more bitterly amongst themselves and became frightened whenever some passing foreign menace appeared on the horizon; thus, they began to disregard their customs in their search for safety or advantage.[1] In 91 B.C., unrest and revolt broke out across Italy amongst those Rome had neglected in its years of triumph, and the Romans only with difficulty suppressed them.[2]

But it was in the decade after 88 B.C. that the pillars of the Republic took the first of the blows that would fell them. Marius and Sulla, each at the head of a faction and each in their turn, briefly grasped at unchecked power and attempted the wholesale destruction of their enemies. The old traditions and customs that upheld the Roman constitution buckled under their ceaseless assaults. The law became a dead letter, discarded when it did not suit their purposes. They demanded absolute and abject loyalty from their fellow senators, the tribunes of the people, and other distinguished citizens; they purged those who did not give it.

Their rule did not last, but neither was held accountable. Marius died of old age while still clinging to power. Sulla, to the surprise of all, laid down his dictatorship, retired to his villa, and, after a year of debauchery, died in his bed. His fade from power and public life was swift, and for nearly twenty years the Republic appeared restored.

But two young men had witnessed his example, that selfishness and force opened a path to power. Caesar and Pompey were more intelligent, diligent, and disciplined than Marius and Sulla; and so, when they clashed, Rome shook even more violently. Caesar emerged victorious, but in 44 B.C. he was assassinated by a fallen Senate desperate to reclaim its lawful powers.

Yet two more young men were watching. Antony and Octavian rose to power and then came to blows. Octavian, like Caesar his uncle, was disciplined and brilliant; unlike Caesar, he was wholly ruthless. In 27 B.C., he became the Emperor Augustus and reigned for forty years. Only then did the Roman Republic cease finally to exist.

III

“…consider whether in a corrupt city one can maintain a free state, if there is one, or, if it has not been there, whether one can order it. On this thing I say that it is very difficult to do either the one or the other… For as good customs have need of laws to maintain themselves, so laws have need of good customs so as to be observed. Besides this, the orders and laws made in a republic at its birth, when men were good, are no longer to the purpose later, when they have become wicked.” —Niccolo Machiavelli, Discourses on Titus Livy

The politics of the Roman Republic were generally bloodier and more tumultuous than our own, and Rome had a much different constitution; thus, any comparison between the two is necessarily imperfect. Yet it would be foolhardy not to contemplate the possibility that Mr. Trump was our Sulla. He disregarded every law, custom, and tradition that stood in his path; he proscribed anyone who crossed him; and he recklessly stoked the violence of the mob. Then he left office, still living. And, most crucially, he has so far not been held to account.

Congress, had it any vigor or authority remaining to it, would have impeached and removed Mr. Trump on January 6^th, immediately upon reclaiming the Capitol. The Senate may still limp to such a conclusion, months later; though it appears to me that each passing day makes this outcome less likely, as what little resolve was summoned on that night dissolves into cowardice and irresolution. Whichever young men and women would be our Caesar and Octavian, more diligent and ruthless than Mr. Trump, are watching this scene. They will take note of how it ends.

Yet the failures of the people’s representatives must ultimately be laid at the feet of the people themselves. We elect our leaders, and, if we wish to avert the fate that befell Rome, so must we be the ones to demand virtue from them and uphold it with our votes. And we shall only recognize virtue in our candidates for public office if we know and practice it ourselves. Do you? Do I?

IV

“A republic has need of new acts of foresight every day if one wishes to maintain it free.” —Niccolo Machiavelli, Discourses on Titus Livy

Although our national stage is battered, the inauguration of Mr. Biden, should he carry through the assurances of moderation that he has made on campaign, offers us citizens an opportunity to pause and take our eyes away from it. His actions there will neither save nor destroy the Republic. That will hinge on whether we, in this interim, can rediscover civic virtue.

The place to do so is in our towns, counties, cities, and States. In writing the series of essays that form the core of this website, I came to the theoretical conclusion that we as citizens can take part in and see our hand in the results of local government far more than we can the government of the Union.

Subsequent experience has, for me, confirmed the truth of that proposition. This website, which deals with national issues, is but a drop in the ocean; few have visited it, and few shall read what is here, because there exist thousands of other written works that, for good or ill, ponder the challenges of the United States. Yet in the span of little more than a year, and despite the obstacle of Covid-19, I have already found a modest place in the civic life of my adopted town.

It is there, at the level of government that is accessible to us, that we may take an active part in governing and so become reacquainted with, and practiced in, civic virtue: attachment, respect, duty, honor, foresight, patience, hard work, collaboration, persuasion, compromise, leadership. Once we have taught ourselves these qualities in the gymnasium of local government, then we may apply them to our national contests and so repair our Republic.

So, let us relax our minds during the next few weeks, as the tension of the past four years gradually unwinds. Then let us seize the opportunity now offered and begin to work.

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“Nor is it out of place to mention such testimonies in the case of a man said to have been by nature so fond of raillery, that when he was still young and obscure he spent much time with actors and buffoons and shared their dissolute life; and when he had made himself supreme master, he would daily assemble the most reckless stage and theatre folk to drink and bandy jests with them, although men thought that he disgraced his years, and although he not only dishonoured his high office, but neglected much that required attention.”

“…In others he seems to have been of very uneven character, and at variance with himself; he robbed much, but gave more; bestowed his honours unexpectedly, as unexpectedly his insults; fawned on those he needed, but gave himself airs towards those who needed him; so that one cannot tell whether he was more inclined by nature to disdain or flattery.” —Plutarch, Parallel Lives of Famous Greeks and Romans, writing of Sulla.

[1] Such as when Marius was awarded four consecutive consulships when the Cimbri and the Teutones appeared to menace Italy.

[2] The Social War, from 91-87 B.C.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” —Second Amendment to the U.S. Constitution.

“The Congress shall have Power… 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.” —Article 1, Section 8.

Logically, there exist three legitimate purposes, broadly defined, for ordinary citizens to keep and bear arms. These ends are, as follows:

1. The use of arms for recreational pursuits, which include but are not limited to hunting, sport, outdoorsmanship, and collecting. These may be considered general liberties, which, like any other ordinary freedom, ought not to be prohibited except when their exercise would do harm to others, and which may be regulated so as to avert conditions that would cause such harm.[1]

2. Self-defense and, under certain circumstances, defense of property. This is a natural right, which every person possesses inherently.[2]

And,

3. Providing for the security of a free state as part of a well-regulated militia. This is the purpose stated in and forming the basis for the Second Amendment. It is, under the laws of the United States, and in certain conditions specified therein, a duty.

From this third purpose, it follows that—

In order to provide for the security of a free state, which is ruled by the consent of the governed and is respectful of individual liberty, a militia must:

1. Be well regulated; i.e., be properly trained, disciplined, and equipped for the tasks it is to fulfill, and have clear standards defining what its members may and may not do.

2. Be accountable to the people.

Only an elected government can act on behalf of the people. As John Locke, whose thought guided our Republic’s Founders, wrote in his Second Treatise of Government:

“The constitution of the legislative is the first and fundamental act of society, whereby provision is made for the continuance of their union, under the direction of persons, and bonds of laws, made by persons authorized thereunto, by the consent and appointment of the people, without which no one man, or number of men, amongst them, can have authority of making laws that shall be binding to the rest.”

In the United States, the legislative power is vested in Congress and in state and local legislatures.

Furthermore, it does no good for a militia to be accountable to the elected government of one city or State, if it goes to operate in a different one without having been invited there by the elected government of that community. To do so would be tantamount to invasion, unless—and only unless—it is sent there by a higher government that is representative of the people of both places.

Thus, according to the Constitution, Congress prescribes regulations for the militia, and the state governments implement those regulations by training the militia and appointing its officers. State governments may call forth the militia and control its operations within their State, unless the militia is called into the service of the United States (federal service), wherein it is temporarily directed by the federal government and may be ordered anywhere in the Union.[2]

State legislatures, as they possess the general powers of government, may choose to delegate some authority to local governments to recruit, train, and direct a part of the militia. In the past, towns and cities would raise units which were then integrated into the state militia upon their acceptance by the state government.

However,

The militia has evolved over time.[4] The Militia Act of 1903 divided it into two bodies, which remain in existence today: the National Guard, known also as the organized militia and comprised of volunteers, and the Reserve Militia, known also as the unorganized militia and comprising all able-bodied male citizens between 17 and 45 years of age.

The National Guard fulfills most of the old militia’s former roles: namely, to augment the regular forces of the United States in times of war, to defend each State against internal violence, and to assist the civil authorities in the case of natural disaster.

Moreover, regular state and local police forces—which did not exist as such in the early days of our Republic—now hold primary responsibility for protecting their localities from internal violence, in addition to their ordinary duties of law enforcement.

As a result, there are few circumstances that would warrant calling forth the unorganized militia today. It is therefore unlikely that ordinary citizens shall be called on to provide for the security of their State.

Nonetheless,

That fact does not imply that the right to keep and bear arms is obsolete, nor that the concept of a militia is entirely archaic; it only means that there is not presently a great need for it. The logic of the Second Amendment, that there is value to a free state in having an armed populace from which to draw a broad-based militia, has dormant force. Under exceptionally dire circumstances, such as a foreign invasion or a prolonged breakdown of central authority, it may indeed become necessary to raise a militia that is accountable to the elected government of a State, or even a municipality.

Yet,

The preceding logic does mean, unequivocally, that Americans ought under no circumstances to form ‘militias’ that are not directly accountable to the elected legislature of a municipality, a State, or the Union. Self-proclaimed militias which answer only to themselves, even if they claim to represent some imagined idea of the popular will, are mere militant groups, not the militia defined by American tradition and the Constitution of the United States. Their multiplication today endangers the security of a free state. It is thus in direct violation of the Second Amendment.

This danger has been made clear by recent events. A young man crossed a state line to travel to Kenosha, Wisconsin, armed, at the behest of such a self-styled militia, and killed two people there. He may yet be acquitted of the narrow charge of murder, if reason can be given to show that his immediate act of killing was done in self-defense.

But his larger action, and that of the group he associated himself with, brazenly defied the spirit of the Constitution. He was not defending his own home, which as a private citizen he might claim a right to do. Indeed, he could not claim to have been defending his own city, or even his own state: for he was a resident of Illinois, not of Wisconsin. The ‘militia’ whose call he answered is in no way accountable to the elected governments of Wisconsin or Kenosha; indeed, the city authorities had expressly turned it away. Neither it nor he had any business pretending to provide ‘security’ there. In doing so, they defied the popular will.

The act that occurred soon thereafter in Portland, Oregon was similar in nature. An individual  traveled from his home in Washington state to Portland, where he fancied himself to be providing ‘security’ for protests, and there killed a man. He had no more business there than his counterpart did in Kenosha; nor is the group he associated with, the self-styled ‘antifa,’ any more accountable to the elected governments of Oregon or Portland than the ‘Kenosha Guard’ is to the elected government of that city.

That ‘antifa’ is more diffuse than the self-proclaimed militias of the extreme right does not make it fundamentally different in character. It is a militant group, unaccountable to the people, whose affiliates seek to ape the roles of a militia while assuming none of the obligations of one. Such groups, whether they profess political alignment with the left or the right, ought to be equally unwelcome in our Republic.

Furthermore, the argument that militants were justified in coming to Kenosha and Portland because they had to protect the people there who were, at that moment, in danger, is wholly unconvincing. That violent unrest was occurring, or had occurred, in both cities is undeniable. But if the people of those cities needed outside aid, their elected government—and only their elected government—had the authority to request it on their behalf.

Indeed, in Kenosha, an accountable response to the rioting soon unfolded. The city government requested that the State of Wisconsin send in the National Guard. The state government responded: the Wisconsin National Guard deployed, followed by National Guard units from other States, which the government of Wisconsin had itself requested. Within a week, they restored the peace.

Therefore,

Responsibility for securing a free state begins and ends with a freely elected government, and a well-regulated militia is only the latent force of that government, mobilized at its call and no other’s. Those Americans who aspire to militia service as a civic calling ought thus to consider joining the National Guard. Others ought merely to be ready to answer their government’s call, should it come, and be content with the fact that it may not come in their lifetime. None ought to associate with unaccountable militants.

In regard to the present situation in these United States, it is with local and state governments that responsibility for dealing with domestic unrest primarily lies, and those authorities ought now to concentrate their minds on securing their citizens’ lives and property. Riotous behavior, and the militancy that it attracts, has gone on long enough. Although the task at hand may be made more difficult by federal intervention, which, though broadly lawful, is at present largely unconstructive, the time for excuses has passed. The outcome of the general election this November, and the faith of the people in elected government generally, may hinge in large part on whether the streets are soon calmed. Discipline and perseverance are needed; the future of the Republic is at stake.

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[1] When hunting is done for subsistence, it assumes the station of a natural right and carries greater moral weight.

[2] Locke articulates it well in his Second Treatise of Government:

“…it being reasonable and just, I should have right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion… that will be sure to destroy him whenever he falls into their power.”

In regards to defense of property, lethal means may be morally justified if the property concerned is necessary for the sustenance of life, such as food in a time of famine, or a vital medicine; and also if the attack on property is indistinguishable from an assault on one’s life, such as a mugging, or a burglary if the homeowner or his/her family is inside.

In the words of Locke:

“This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away everything else.”

It must be noted here that Locke, and I, speak only of moral right; the actual laws of the United States and the several States differ on the particular circumstances in which lethal self-defense is permissible.

[3] As occurred, for instance, when National Guard units from several States were deployed to New Orleans in response to Hurricane Katrina.

[4] For a more detailed accounting of this history, I recommend the excellent short piece at the following link:

A Short History of the Militia in the United States