The End of Gun Control: 6.1: Politically Perverted Law Enforcement
The political caste's incentive to abuse the administration of law, centralize state power & consume even more of other people’s resources is too great, yet can only be arrested by We The People.
The equality of law ideal has been inverted in practice. This is because, instead of the ‘whole body of the people, except the few public officials’ executing the law, those holding tax-funded public positions write, interpret, and enforce codes, statutes, ordnances, and regulations with impunity. As Patrick Henry predicted, signing a contract that largely ceded organization and employment of the militia to the U.S. Congress led to their ultimate absorption into the national army.
This is evident whenever anyone conflates the National Guard with the militia of the several states. Just look at the uniforms. The name tapes say U.S. Army or U.S. Air Force. There is nothing ‘national’ about the militia of the several states. While congress can maintain a navy or raise and support armies, the militia pre-existed the union, remain within their respective states until ‘called forth’, and are categorically separate from other armed forces, as found in Article 2, Section 2 of the federal charter.
So, even while the U.S. Congress can raise and support armies, that include reserve components such as the National Guard, the militia of the several states remain a separate, and crucial, institution within the federal framework and are the only constitutional vehicle to execute the laws of the union. Moreover, the purpose of an army is to make war. The purpose of the militia is to execute law, repel invasion, and suppress insurrections against constitutional order. The two have different missions.
The absence of these institutions, necessary to the security of a free state, is a key indication of why law has been perverted from a protector of people and their property into an instrument of plunder.
George Mason also foresaw the hazards of granting an ‘almost unlimited authority over the militia of the several states’ to the general government of the federation. In addition to disarming the militia, a central authority would be inclined to render the militia ‘useless’ to their purpose of maintaining a decentralized constitutional order through nonsensical regulation, ‘intolerable burdens’, and harassment. He also saw the potential for militia service to be made so onerous that the people themselves would call for the abolition of the duty to serve.
It is important to observe that the authority delegated by the states to the general government was to arm, and not disarm; to organize and not disorganize the militia. Yet that is exactly what happened. In 1903 they were either absorbed into the national army or unorganized via the Dick Act.
There is much more that could be said about the absurd unconstitutionality of the Efficiency in Militia Act of 1903, sponsored by Congressman Charles Dick, starting with its address toward a non-existent Militia of the United States (there’s no such thing, only the militia of the several states) and its imperial design, inspired by the 1898 Spanish-American War, to make the National Guard more disposable for foreign misadventures.
For now, it suffices to highlight that Mason correctly identified the problem with the states subjecting the administration of their militia to the general government. Yet evidence of the general government’s abuse of the militia authorities began almost immediately after ratification.
While Article 1, Section 8, Clause 1 allows the Congress to lay and collect taxes, at the time (until the 16th Amendment of 1913), all such confiscations were to be “uniform” throughout the union. Despite this requirement, a tax unevenly targeting a specific commodity was passed into effect.
Of course, policies such as these impact different segments of the population in a variety of ways and those people that relied upon the commodity in question as the basis of their subsistence, as well as a currency within their local economy, were disproportionately harmed by the non-uniform tax.
Thus began localized popular resistance to the unconstitutional dictates of the general government, leading to what would be known as the Whiskey Rebellion. Rather than recognizing the violation of the legal requirement for taxes to be uniform and amending the legislation into conformity, the first President of the United States, George Washington, sought to exert executive authority and invoked the Militia Act of 1792 to mobilize forces.
Remember, the President, under Article 2, Section 3, “takes care that the laws be faithfully executed”, yet the militia (of the several states) “execute the laws of the union” at the local level. Having the President reliant on the local militia, as well as the constituent states and governors where they reside, ensures local self-government within the federation.
A healthy federated republic requires not only distinct branches but also multiple levels of government to ensure a separation of powers and to check the ambitions of aspiring tyrants and usurpers. To check the general government, the states and state governors can interpose by refusing unlawful orders to activate their militia. If the state governors are captured in the corruption, the county and city leaders can similarly refuse to cooperate with the scheme.
Since the local militia are We The People, situated at the enforcement end of the legislative process, local assent to executing the laws drafted by their representatives creates a crucial check valve in the circuit of self-government.
This, of course, is the idealized model and not the historical case.
At the initial stages of the Whiskey Rebellion, the local militia refused to cooperate with the offending tax order and instead fulfilled their duty to protect their protesting communities. Unfortunately, the state governor at the time was also resentful of local self-government within that polity and went along with the effort to suppress dissent, regardless of the righteousness of the cause.
This collusion between the state governor and the general government is another example of how the tax-funded political caste hold more in common with each other than the tax-paying public they preside over. It also illustrates the divide between urban sophisticates and rural populists.
The task of economics, as Henry Hazlitt observed, is to trace the broad consequences of policies holistically and not how it affects the few. This aligns with the ‘uniformity’ principle for constitutional taxation that the excise on a specific commodity violated.
The political caste typically selects goods deemed as ‘vices’, such as tobacco, alcohol, sugar, drugs, or caffeine (see King George’s tax on tea that prompted the revolution). First, because they largely considered sinful there is little sympathy toward those that buy them. Second, the demand for these goods is considered inelastic, meaning people are likely to continue buying them regardless of price increases.
As stated earlier, the tax protestors were disproportionately harmed by the tax on a commodity that they depended upon for their livelihoods as well as a common medium of exchange in their local economy. The tax was not uniform and, therefore, unconstitutional in addition to being unfairly injurious.
Instead of recognizing the error of their ways, the violations of constitutional order, and the disregard for political-economy in imposing the whiskey tax, the general government used the crisis as an opportunity to exert its authority with force.
In so doing, the weaknesses of the federal framework to secure the blessings of liberty were put on full display in 1794. The principles of uniform taxation and local self-government were violated by the incident while also setting a precedent for invading the sovereignty of subsidiary polities.
The political response to the so-called Whiskey Rebellion highlighted the structural weaknesses of the federal charter for fulfilling the stated task of securing the blessings of liberty in the present and for posterity. Collusion among the political caste to use their offices as instruments of plunder only shows the need for stronger safeguards and such measures can only come about by reducing the control of armed force in society from those who make their living through taxation. Their incentive to abuse the administration of law, centralize state power, and consume even more of other people’s resources is too great.
Hence, securing a free state requires the whole body of the people, organized, armed, and disciplined at the most local level feasible, to arrest the consumptive ambitions of the political caste.