Militia SH

A Militia Stalking Horse?

This maneuver is likely to teach everyone the wrong lesson.

Five South Dakota lawmakers have introduced legislation that would require any adult 21 or older to buy a firearm “sufficient to provide for their ordinary self-defense....”

The measure is known as an act “to provide for an individual mandate to adult citizens to provide for the self defense of themselves and others.”

Rep. Hal Wick, R-Sioux Falls, is sponsoring the bill and knows it will be killed. But he said he is introducing it to prove a point that the federal health care reform mandate passed last year is unconstitutional.

“Do I or the other cosponsors believe that the State of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance,” he said.

This is a highly problematic approach for two reasons.

1) It blurs the distinction between what a state government can do, and what the Federal government can do. The argument that the Federal government cannot issue a mandate of this type is based on a reading of the Commerce Clause plus the 10th Amendment. There is no similar argument that a state government cannot do so. Indeed, under the 10th Amendment, they could possibly have the power precisely because the Federal government is forbidden it.

2) The militia is the one case where even the Federal government has clear Constitutional authority to require you to provide yourselves with positive goods. The argument against the health care bill's individual mandate arises from the Commerce Clause limitation on Federal authority; but there is specific language in Article I, Section 8 that authorizes Congress to do things precisely like ordering individuals to own a proper weapon for militia service.

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[.]

As an act of grandstanding, then, this misses the point on every possible level. If I didn't have such a generous character, I'd suspect this representative is running a stalking horse operation intentionally to muddy the water between these kinds of cases. Instead, I'll simply assume that he hasn't studied the issue enough to know how dumb his idea his.

UPDATE: InstaPundit put up a post on the same subject sixteen minutes after I posted this. I mention that not to boast about scooping Professor Reynolds -- his contributions to speedy blogging are certainly beyond my ability to contest -- but to make a point about the nature of the TEA Party movement. The idea behind the TEA Party is that the citizen can (and should be able to) understand the Constitution and its foundations, and thus judge whether and how a given law is genuinely an appropriate exercise of government authority. InstaPundit is a law professor; I am not a lawyer at all. He writes:

I don’t think this bill makes the constitutional point its sponsor intends — state governments, unlike the federal government, are not limited to enumerated powers. But even the federal government could require citizens to own guns under its militia power, as opposed to the commerce power. In fact, it did just that in the Militia Act of 1792, but I rather doubt that this power would extend to requiring ObamaCare under that clause, which empowers Congress “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.”

The benefit of being a law professor is obvious in his citation of the Militia Act, which was a concrete example of the general principle. Still, if you had simply read and studied the Constitution itself, you would have everything you needed. It provides both the distinction between state and Federal authorities; and makes clear that in only one of the two cases is there clear enumerated power to do what is proposed.

That's not to disparage the value of a legal education, nor to scorn the contributions of those who have one. It is only to demonstrate that this is the kind of thing that ordinary citizens really can do -- it's not that hard. There's a question about why elected officials don't seem to be able to do it! Yet it is clear that the Constitution is not the province of an elite. It belongs to the citizens, both those living today, and those who crafted it over the centuries.