Archive for the ‘Shays' Rebellion’ Category

What if the People who started the War for American Independence WERE like the thuggish patriots we see today?

Not an outlandish question since the people who are generally called “Patriots”

were not a tolerant group, and Loyalists suffered regular harassment, had their property seized, or were subject to personal attacks. Unless the British Army was close at hand to protect Loyalists, they often suffered bad treatment from Patriots and often had to flee their own homes. About one-in-six Americans was an active Loyalist during the Revolution, and that number undoubtedly would have been higher if the Patriots hadn’t been so successful in threatening and punishing people who made their Loyalist sympathies known in public.

Wealthy Loyalists left for Great Britain in contrast to most ordinary Loyalists, who went to Canada.  As a preface to a future post, these displaced Loyalists would come to play a large role in the development of Canadian society and government.

Most of what is known about the Loyalists are those who fought against independence or who fled the newly independent colonies since they are the best documented members of this group.  The silent majority remain a mystery.  Although, one might be surprised by who exactly the Loyalists tended to be (e.g., they were the “mountain men” in the South).  Also, being loyal didn’t preclude one from wanting independence (see Canada comment above): only that they wanted any independence to come from a peaceful and lawful process.

The most notorious Loyalist, Benedict Arnold, had been one of the most effective “Patriot” military leaders when he decided that the objective of war had been achieved.  Peace and reconciliation made more sense than continuing a war that bankrupted the nation and led to the revolt at Morristown.  The Town of Deerfield, MA had a town vote in 1781 which instructed their representative to the Massachusetts General Court to urge the state to “Effect an accomodation Settlement & Peace between Great Britain & the United States of America without the futher effusion of Blood.”[1]

The issue is that the war was forced upon a nation which may have been coerced into an imprudent course of action. The goal of independence was achieved, but was the aftermath worth the resulting chaos which led to Shays’ Rebellion and ultimately the adoption of the US Constitution? Given the reactions of most of the founders to Shays’ Rebellion and their addressing rebellion in the Constitution, would they agree that those who call themselves “Patriots” while fighting perceived tyranny would be a folly?

Or as Samuel Adams said:

in monarchies the crime of treason and rebellion may admit of being pardoned or lightly punished, but the man who dares rebel against the laws of a republic ought to suffer death.

I also ask this question as an descendant of one of those members of the Pennsylvania Line at Morristown.  Was he forced to be there, away from his home, for the whims of people who pressed him into service.  I am pretty certain he would have preferred to be back on the farm where he was truly needed.

[1] Sheldon, George. A History of Deerfield, Massachusetts. Deerfield, MA: Pocumtuck Valley Memorial Association, 1895: Vol. II, p.739.

Why does the Second Amendment apply to State Militias?

Let’s start with the Articles of Confederation, which were the United States’ first constitutional document. It was drafted in 1776-77 and became the working constitution, although it was not formally ratified until 1781. The Articles authorised the Continental Congress in its supervision of the American Revolution, its diplomacy with Europe, and its handling of territorial issues. There were complaints that The Articles were too weak to adequately administer the United States’s governmental functions. Shays’ Rebellion pointed out many of the flaws in the system of govrnment instituted by the Articles. Some wanted the Articles amended, others advocated a new order. Eventually, the Articles of Confederation were replaced by the current Constitution in 1789.

Article VI of the Articles of Confederation:

nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

There are other paragraphs pertaining to the militia in Article VI, Article VII, and Article IX. Article VII provides that all militia officers under the rank of colonel be appointed by state legislatures. Article IX provides that Congress should appoint officers at the regimental level (colonels, usually) and above, and also gives a procedure by which the federal government could call upon the militia in case of national emergency. It was up to state governments under the Articles to determine which men would serve in the militia.

The Articles also clearly distinguish between troops which can be only be kept in time of peace by states with the consent of Congress and militia which it is the obligation of the state to supply and keep up.

The lack of an institutional response to the Shays’ uprising was among the factors which led to the reevaluation of the Articles of Confederation and gave strong impetus to the Constitutional Convention which began in May 1787. The delegates of the Constitutional Convention granted Congress the power under Article 1; section 8, clauses 15 and 16 of the federal constitution to “provide for organizing, arming, and disciplining the Militia,” as well as, and in distinction to, the power to raise an army and a navy. The US Congress is granted the power to use the militia of the United States for three specific missions, as described in Article 1, section 8, clause 15: “To provide for the calling for of the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” The Militia Act of 1792 enacted these provisions into law with the militia consisting of; “each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.”

What was not specified in the Constitution, but was clearly understood by all was that the term ‘militia’ meant the militia of the states given its prior usage and understanding in the system set up by the Articles of Confederation.

Note that the Militia Act requires that the militia member is enrolled into his unit. The actual procedure varied from state to state. In most states at most times, it was the responsibility of the local officers to find out who was new to an area and enroll them in the militia.

For example, here is the 1836-37 Revised Statutes of North Carolina:

“That all free white men and white apprentices, citizens of this state, or of the United States, residing in the State, who are or shall be of the age of eighteen, and under the age of forty-five years, shall, as soon as is practicable, be severally and respectively enrolled in the militia of this State, by the captain or commanding officer of the infantry company within the bounds of whose district…such citizen shall reside; and it shall, at all times, be the duty of every captain or commanding officer of any community, to enrol every such citizen, except as hereinafter excepted; and also those between the ages aforesaid, and not exempt by law, who may from time to time, come to reside within the bounds of his district, and remain therein thirty days; and he shall without delay, notify such citizen of his enrolment, by a proper non-commissioned officer of the company, by whom the notice may be given.”

Also note that the federal government always has the power to “organize, arm and discipline” the state militias. It has this power regardless of whether or not the state militias are called up by the federal government. Furthermore, it routinely used this power at times when no state militias were called up by the federal government. When the state militias are called up, the federal government has additional powers over them, but this has nothing to do with the other powers.

A major concern of the various delegates during the constitutional debates over the Constitution and the Second Amendment to the Constitution revolved around the issue of transferring militia power held by the States’ (under the existing Articles of Confederation), to Federal control. The new Constitution effected a dramatic shift of military power from being militia based and predominately controlled by the States towards being controlled by the federal Congress and the President with the addition of a federal army. It was this shift in power with the Federal government being given the power to arm the militia which led to the Second Amendment.

See also:
The Founder’s Constitution
Militia-History and Law FAQ
Militia Mythology

I’ve always been curious about the existence of Left Wing militias

I was over at Common Gunsense and saw that Sean was upset that MSNBC’s  Dylan Ratigan & Ted Rall were discussing “armed revolt”.

Wait a minute, isn’t that what the “pro-gun” crowd runs around saying?

There is a serious problem with the insurrection theory of the Second Amendment and that is who defines tyranny?  In this case, Rattigan and Rall are much closer to what the founders meant when they talked about “Tyranny” when one reads the primary sources.  For example, the “Federal Farmer” wrote a series of letters that were published in the Poughkeepsie Country Journal in late 1787 and early 1788. In his third letter, he lamented that under the new Constitution Congress “will have unlimited power to raise armies, and to engage officers and men for any number of years.” He then voiced his objection to standing armies:

I see so many men in American fond of a standing army, and especially among those who probably will have a large share in administering the federal system; it is very evident to me, that we shall have a large standing army as soon as the monies to support them can be possibly found. An army is not a very agreeable place of employment for the young gentlemen of many families.

He also stated in his thirteenth letter that “we all agree, that a large standing army has a strong tendency to depress and inslave the people.”  It was a universal sentiment that standing armies were inimical to liberty and that any military force needed to be under civilian control.  Don’t take my word for it, read the primary sources.

Has the pro-gun crowd noticed the significance of military spending in the federal budget?

Gun control flourishes when there is discussion of armed revolt by the common man to take power from the wealthy.  For example, National Guard armouries were built in the United States during the 19th Century to prevent actions such as Shays’ Rebellion, John Brown’s Raid on Harper’s Ferry, and The Black Panthers.  The British Firearms Act of 1920 was directly influenced by the Russian Revolution.  Not to mention the Constitution was a response to Shays’ Rebellion. I can imagine that a contemporary arming of the left will suddenly bring about calls for gun control.

Of course, the realisation that the Second Amendment does not invalidate Article III, Section iii of the constitution and that there are peaceful methods for effecting change may cause some “Second Amendment” supporters to come to their senses.  But I seriously doubt it.

Instead, they will become upset that the left can parrot the rubbish about soap boxes, ballot boxes, and ammo boxes.

If you saw a blind, three legged, 29 year old horse win the derby…

you’d say the race was fixed.

On the other hand, I’m rather amazed at the people who are praising the Heller-McDonald decisions. For example, The Brady Organisation which will happily point out that the decision doesn’t preclude reasonable regulations.

In fact, the Second Amendment protects a civic right, that is it is supposed to ensure that the Article I, Section 8, clause 16 militia remains armed and has fuck all to do with “”gun rights”. But, you small minded fucks need to get it through your thick skulls while that concept means the Second Amendment doesn’t preclude a gun ban: It also means that Kennesaw Georgia can force people to buy a gun (although, that sort of law could run afoul of the First Amendment).

The Civic right interpretation was the law of the land up until 26 June 2008. And, quite frankly, you can argue that it still remains the law of the land since the Second Amendment has not been properly amended, thus the Supreme Court acted ultra vires in producing this decision.

But, that’s not my point. My point is that Walter E. Dellinger argued worse than any first year law student despite his background, although one of the themes in this blog is that the US legal education system sucks. Still, you’d think that someone of Dellinger’s experience would pound in:

Stare decisis: Dellinger had the accepted interpretation of United States v. Miller, 307 U.S. 174 (1939) which he mentioned as:

The court unanimously said in Miller that the Second Amendment must be interpreted in light of its obvious purpose to ensure the continuation and render possible the effectiveness of the military forces.

Unfortunately, Dellinger appears to have been poorly studied in the history of the Second Amendment and its relationship to Standing Army question. Additionally, He was unaware of Shays’ Rebellion, which were the farmers who were on the framers’ minds: not the ones of dime novel ilk that were on Justice Kennedy’s.

There are enough quotations which show that the issue related to that of the Article I, Section 8, clause 16 militia to have sunk any suggestion that there was a private right.

The other aspect which would have strenghtened Dellinger’s argument was the rule of constutitonal interpretation that I keep hammering upon:

None of the words in the Constitution are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.

This principle of Constitutional Construction was mentioned in Marbury v. Madison, 5 U.S. 137 (1803), as It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.

And while we are at it: nowhere in the Second Amendment can one find the words which allows for “the people” to own arms for personal defence. Again this goes to the rule of construction that no phrase is without meaning. Expressio unius est exclusio alterius’ (The express mention of one thing excludes all others) : Items not on the list are assumed not to be covered by the statute.

Self-defence is not mentioned in the Second Amendment (or the US Constitution).

Justice Stevens’s dissents in Both Heller and McDonald pointed out that was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”. Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which are present in the Declarations of Rights of Pennsylvania and Vermont. The fact that these decisions were 5-4 means that the Civic right interpretation isn’t dead, just dormant.

But the other side was just as lame as Alan Gura’s argument demonstrates:

MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.
JUSTICE KENNEDY: That are not appropriate to —
MR. GURA: That are not appropriate to civilian use.
JUSTICE GINSBURG: For example?
MR. GURA: For example, I think machine guns: It’s difficult to imagine a construction of Miller, or a construction of the lower court’s opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.

Now, if you are going to say that the first clause has no effect, which the Five fools do, then one is left with:

the right of the People to keep and bear arms shall not be infringed.

It is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. Or to quote the RKBA folk:

What don’t you understand about “Shall not be infringed”.

Of course, the court’s construction and interpretation, again violates the principle about the use of the word “shall” since in this context the phrase is now discretionary.

We can get into the fix is in part of this in that the Court could have made Gura and his ilk look like idiots since they construct the phrase to be both discretionary and the first clause to be without effect. So, not only are they asking for Miller to be overturned, they are also asking that long standing rules of Constitutional interpretation be ignored.

Anyway, by ignoring the language “A well regulated militia being necessary to the security of a free State”, we should now have a right which allows for the personal ownership of weapons of mass destruction: let alone machineguns. Any Justice worth their salt should have brought this up (Sorry, that includes you, Justice Stevens).

The problem is that the gun loon crowd act like Pavlov’s dog and salivate when they hear “gun rights” and “individual right”, but don’t really understand what exactly is going on here and how they have been the ones who were fucked. That’s slightly less so from the “antis”: although I’m sure we would be hearing about it if they felt truly fucked over . The Heller-McDonald Supreme court decisions talk of “presumptively lawful regulatory measures”, specifically name some, and then declare the list “is not exhaustive”.

In case you missed it or are too fucking stupid to have figured out what happened–here is the Heller-McDonald language:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?

Likewise, Candidates cannot say that gun laws violate the Second Amendment if they do not infringe upon the rights to truly “law abiding citizens” to own firearms. As the Court said (twice) “the right to keep and bear arms is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”

We can get into the watering down of the Second Amendment right, but that is something which comes from the territory of a judicial amendment of the document: it is whatever a judge says the right is.

True supporters of the Constitution should be appalled at the Heller-McDonald decisions for what it did to the Second Amendment. The even more amusing part is that Scalia has trashed everything that he claimed to believe in by putting his name to this piece of shit, although one can truly question what type of biased hack he is to have not recused himself from this decision. Better yet, one must question what he is doing as a Supreme Court Justice as his presence on the bench does nothing to dignify the institution.

One must decide the law based upon the law, not one’s personal biases.

Anyway, the fix is in and everybody got fucked: especially the Constitution.

More musing on Benedict Arnold

I have to admit a fascination with Benedict Arnold since his efforts helped to push forward the agenda he later described as “sinister views at the expence of the public interest”. Arnold’s military victories against the British, in particular the victory at Saratoga, helped to secure the French aid he so despised. It also raises the question of how many citizens were aware of the machinations that went on during the War for Independence? I have often mentioned French Involvement in this war as a contrast to the fighting farmer militiaman one is given to believe fought the war.

How many were “duped” into believing that the War for Independence was beneficial or necessary? How many would have preferred Union to independence yet remained silent? what would have been the outcome had Arnold supported Union and the Tory cause?

Arnold mentions in his letter that “we raised arms against a brother”. I am assuming that he means England,but the War for Independence was a civil war. Are the Loyalists the people Arnold refers to as “the great multitude who have long wished for its subversion”? What if Arnold has cast his lot with those who argued for restraint in dealing with their grievances with the motherland?

There is a part of me who sees two possible methods of defeating the rebels: military and civil. The civil method would have been to find those who were inclined toward the motherland and keep them informed of the overatures by people such as Benjamin Franklin and Thomas Jefferson to the French. Would John Adams, who defended Captain Preston and his men, be inclined to a slow and reasoned approach with the motherland that would have sustained Union?

To be quite honest, when I see what has happened in this country, I am sure that many who supported Independence would regret that action. Benedict Arnold demonstrates that I don’t need to travel far into the future to see evidence of this. As George Washington said about Shays’ Rebellion:

“I am mortified beyond expression when I view the clouds that have spread over the brightest morn that ever dawned in any country… What a triumph for the advocates of despotism, to find that we are incapable of governing ourselves and that systems founded on the basis of equal liberty are merely ideal and fallacious.”

I also find it interesting that another supporter of Independence, Samuel Chase, said: “our republican Constitution will sink to Mobocracy, the worst of all possible governments”. This statement is even more interesting in light of the “tea party” movement. Unfortunately (or fortunately), most colonials were not supportive of the original Tea Party’s wanton destruction of property.

It seems that people can be affected by events even if they hope to remain neutral. Unfortunately, you’ve got to fuck up royally to admit you made a mistake after wasting lives in a war.

Shays’ Rebellion

I am amazed that there isn’t more interest in this little bit of US History. I tend to blog about it since it is actually a very important event in US Constitutional history. In fact, it is a good point to mention when people discuss the insurrection theory.

233 Years of Mistakes–It’s time to return to England!

I’ve always thought if we could transport the founding fathers forward in time their reaction would be “fuck it, we’re better off as a part of Britain” and just go back home.

If they had any doubts, I could take them to this quaint village that Mudflap Bubbas Found! I’m sure that would persuade them of the error of their ways far more effectively than a nuclear strike on Lexington and Concord ever would.

Why, because most of them would be appalled at how the US has turned out. The fact that the Constitution has been perverted so that something like the Second Amendment which was to ensure a Swiss style military has become a farce with the out of control military and people yammering about gun rights. Add in the fools who say this country was founded as a Christian nation.

Somebody should tell these people about Congregation Mikveh Israel in Philadelphia. Does Haym Solomon sound very Christian to you??? He was a prime financier of the American side during the American Revolutionary War. Jews have been in the US since the mid-17th Century with Jews playing a key role in the Revolution.

How would they feel to learn that Britain had a Jewish Prime Minister, Benjamin Disraeli (nevermind he converted to Christianity, there’s always hope), whereas it was a tough road to get a Catholic as US President! Would the Jewish “patriots” change their support to England if they saw people who say this country is a Christian nation?

We could get into the reaction to Shays’ Rebellion and how “Liberty may be endangered by the abuses of liberty as well as the abuses of power”. The problem is that by making a break from Britain in the way they did, they created a very bad precedent. Even though the Constitution was written to clarify the situation, there are still some who believe in the insurrection theory despite its not having a constitutional basis.

Break from England, it’s a very bad idea!

We can get into the misunderstanding of history presented by the “tea party” crowd. Whatever the fuck it is that they believe. I know it doesn’t have anything to do with clotted cream and scones.

An even more interesting point is that the American rebels saw themselves as British and were demanding that they be properly treated as British Citizens. They wanted a voice in the taxation policies. The cry wasn’t “No taxation”, but “No Taxation without Representation“. The phrase captures a sentiment central to the cause of the English Civil War, as articulated by John Hampden who said “what an English King has no right to demand, an English subject has a right to refuse” in the Ship money case. The English Bill of Rights 1689 had forbidden the imposition of taxes without the consent of Parliament. The Colonials felt that they were deprived of this right since they had no direct representation in the British Parliament.

When people who frame themselves as patriots knock Britain, they should remember that the founders considered themselves to be British Subjects. The question would be would the founders if they were alive today feel more at home in the United States or in the United Kingdom?

I think they would be much more inclined toward England than Washington: and definitely frightened by some places in the hinterlands of the US. I’ve heard it said that the “patriots/rebels” had the better slogans, but the tories had much stronger arguments for remaining with Britain. Time has proven that the Tories were correct and that rebellion was a foolish choice.