January 30, 2023

The 1903 Dick Act fundamentally altered the production of security in the United States.  It invented the National Guard as a new organizational structure, that effectively merged state level units as adjuncts of the US Army, while also deeming everyone outside the National Guard as the constitutionally repugnant ‘unorganized’ militia.  Thereafter, any grassroots attempts to restore constitutionally sound, organized, armed, and disciplined, militia at
the local level would have to operate without official recognition or support.

The 1903 Dick Act legislatively subsumed the ‘militia of the several states’ into the national army, invented an unconstitutional ‘militia of the United States’, and disbanded the very  institutions deemed “necessary” to the security of a free state.  The ensuing breakdown in constitutional order that has followed ever since can be directly attributed to this pivotal  moment. Restoring self-government, by executing the law at the local level, has been effectively relegated to black markets.

The thing about black markets, though, is that they are catering to authentic consumer demands despite the political interventions that interfere with legitimate service delivery.  In other words, the need for security, justice, and constitutional order remains even though the political caste has hijacked and distorted the market for governmental services.

It is much akin to what occurred during alcohol prohibition under the 18th Amendment to the United States Constitution from 1920-1933.  It was illegal to overtly manufacture, possess, transport or sell alcoholic beverages in the United States during that period.

Of course, all of these prohibited activities continued despite the ill-fated and destructive enforcement efforts.  They just occurred on black markets with smuggling and irregular production methods.

Prohibition incentivized smugglers to distill higher concentrations of alcohol into smaller formats so that their products could be more easily transported while concealed.  The same thing occurs today under drug prohibition.

Naturally, those moving contraband want to increase their chances of success while minimizing the risks of getting caught and will, therefore, adapt their products to the regulatory environment rather than focusing on quality and consistency.

In addition to altering the quality and consistency of products, prohibition degrades the quality of human relations as well.  Making industries illegal closes off outlets for legitimate dispute resolution and arbitration.  Therefore, violence between organized crime groups becomes more extreme under prohibition.

Since Congress effectively disbanded the militia of the several states with the 1903 Dick Act, We The People have been denied the legitimate means of expressing self-governance and maintaining constitutional order.  The security vacuum presently experienced stems from a lack of organically executing the law, repelling invasions, and suppressing insurrections.

This perversion of constitutional order occurred through two major provisions:

The Militia Act of 1903, also named after Republican Congressman Charles Dick of Ohio, stated the “organized” militia would consist of the National Guard, while the “remainder” of the able-bodied citizenry would be known as the Reserve Militia.

First, Congress had no authority to create a separate category or division of militia.  The Constitution clearly identifies the ‘militia of the several states’ as separate and distinct from the army.  Section 3 of the act states: “The organization, armament, and discipline of the organized militia in the several States and Territories, and in the District of Columbia, shall be the same as that which is now or may hereafter be prescribed for the Regular and Volunteer-Armies of the United States.

The militia incorporated into the US Constitution are distinctively creatures of the member states within the union and cannot be amalgamated with the armies raised by the general government, particularly when not called into actual service to the union.

Remember, Congress has the authority to “call forth” the militia and govern “such part of them” that is actively employed by the general government for that limited duration.  The portion of the militia not called forth remains under the governance of their home state, as will the activated portion once demobilized.  In short, there can be nothing “national” about the militia of the several states.

The National Guard, however, are state level appendages of the national army (just look at the name tapes on their uniforms) and categorically different from the ‘militia of the several states’.  While Congress can raise armies and consent to allow the member states to “keep troops, or ships of war in time of peace” (Article 1, Section 10, Article 3), that has nothing to do with organizing, arming, or disciplining the militia.  These are separate endeavors.

The unfortunate reality is the move to reorganize the militia of the several states into the National Guard was intended to make forces more available for expanding the American empire through conquest.

In the past, militia units had refused to participate in foreign wars and individual state governors had recalled their militia from external campaigns.  Asserting these state level prerogatives helped ensure that military actions were undertaken to authentically provide for the “common defense” and not some special interest boondoggle, such as Marine Corps Major General Smedley Butler’s experience as a “muscle-man for Big Business” in places like Mexico, Haiti, Cuba, Honduras, and China.

Since states could decline to commit their militia to foreign misadventures, the general government needed to gain consensus from all the members of the union that the threat was genuine in order to ensure adequate support.  By nationalizing the militia as the National Guard and making them “the same” as the regular army, this important check on power was removed, thereby weakening the federal structure of the compound republic.

Next, consider the distinctive constitutional functions assigned to the militia in Article 1, Section 8, Clause 15: to execute the laws of the union, repel invasions, and suppress insurrections.  The militia of the several states are uniquely designated to execute the laws of the union while armies are prohibited from doing so through the ‘posse comitatus’ principle.

This law enforcement function is what categorically distinguishes the militia of the several states from the Army and Navy of the United States.

The framers of the Constitution seceded from an illegitimate political authority that had abused their liberties and property with a standing army.  Therefore, the federal operating charter conveyed an apprehension to establishing a permanent force at the disposal of an “overgrown executive” that would force unlawful legislation upon the people.

The experience of the Revolution was eventually forgotten and having the Army execute the laws, particularly on the frontiers and the occupied areas during Reconstruction, became all too familiar over time.  Congress began to remember why these functions were intentionally separated and passed the Posse Comitatus Act of 1878.  Of course this parchment barrier
has not prevented the rise of standing armies or the episodic deployment of troops to enforce unlawful edicts.

It all stems from conflating the National Guard with ‘the militia of the several states’ and then disorganizing the very institutions that are deemed “necessary” to executing the law and maintaining constitutional order.  Consider: The militia is, by definition, armed, organized, and disciplined.  There is no legal basis or requirement for an unorganized militia and such a thing has nothing to with the US Constitution.

Constitutional federalism cannot sustainably function without these “necessary” institutions and in order to fulfill their crucial role, the militia must be organized, armed, and disciplined to do so.

Congress is tasked with organizing the militia to fulfill distinct functions specifically listed in the US Constitution.  By leaving the militia unorganized the Congress is derelict of duty and, by right, the power to organize reverts back to the states, or to the people, according to the Tenth Amendment.

Congress is tasked with arming the militia.  That Congress is derelict of this duty and that the people, at all times, must have access to a free market to acquire whatever arms are suitable to executing the laws, repelling invasions, and suppressing insurrections is precisely why Congress is prohibited from infringing upon the right to keep and bear arms.

The militia are the most organic expression of self-government available to a free society on account of their direct popular participation in with security and justice operations under federalism.  Italian republican theorist Niccolo Machiavelli wrote “a good militia is the foundation of all States, and where that is wanting there can neither be good laws, nor aught else that is good.”

Absent these necessary institutions, not only is the balance of power shifted away from local self-governance and into the hands of the politico-bureaucratic caste but, also, We The People have no legitimate outlets for ensuring the maintenance of law and constitutional order.

Without the ‘militia of the several states’ the foundation of the United States republic is missing and the quality of law becomes eroded.  The people lack the proper check on the types of legislation that gets enforced upon them because they no longer stand in that crucial final node within the cycle of self-government.

This structural erosion subjects the people to jurisdictions that are foreign to “our constitution” in the same way as that which was indicted by the Declaration of Independence in 1776, regardless a geographic location.

It is in this way that those seeking to reassert self-governance are subjected to the vagaries of black markets just as drug dealers today and alcohol smugglers during the era of Prohibition.  The legitimate outlets of doing business have been closed off by unlawful legislation, political apathy, and official corruption.

It then follows, that the quality and consistency of unorganized militia units will also be degraded.

Absent established standards from reputable bodies, there are no guidelines, objectives, or criteria to meet.  Therefore, the standards of those calling themselves militia, or acting as quasi-militia, seldom rise to a minimum baseline, let alone satisfy legitimate expectations of establishing justice, providing for the common defense, or ensuring domestic tranquility.

People in such an environment lose faith in official institutions, confidence in the ability of themselves and their neighbors to self-govern and resign themselves to cynicism while the political caste continues to enjoy ever increasingly unbridled access to the instruments of state power.