Monday, March 24, 2008


As the American death toll in Iraq topped 4,000 just on the heels of the 5th anniversary of the start of the war, Vice President Cheney had this to say:
The president carries the biggest burden, obviously . . . He's the one who has to make the decision to commit young Americans, but we are fortunate to have a group of men and women, the all-volunteer force, who voluntarily put on the uniform and go in harm's way for the rest of us.
The bit about the burden on President Bush relative to the troops and their families is simply too preposterous to discuss, but the invocation of the volunteer nature of our military force merits a few words. Cheney's point in using both the adjective and adverb form of "volunteer" seems to be something like this: Don't feel too bad for the dead, the wounded, the traumatized, and the merely extremely disrupted. They knew what they were getting into. Very nice.

But there is also a serious point here too, and it connects, albeit obliquely, to the Second Amendment. There is no doubt that a core concern of the Anti-Federalists and others who fretted over Congressional power to arm---and therefore potentially disarm---the state militias, was their fear of a standing army. Militias composed of citizen-soldiers, Founding Era mythology asserted, would defend liberty, while standing armies of conscripts and mercenaries could become an agent of tyranny. There is disagreement about exactly who got to retain control of their weapons and when---that's what the Heller case is about---but no serious historical question that the fear of standing armies was a standard view in the Founding generation.

Whether that view was warranted even in those days is an open question. Yes, the Minutemen fired the shot heard 'round the world, but it was the Continental Army---eventually a band of seasoned full-timers---who won the Revolutionary War (with help from the French). George Washington was constantly complaining about the militiamen who periodically came under his command.

These days things are more complicated. Our national armed forces includes nationalized units of the state militias, and all are volunteers. We pay our soldiers, sailors and marines, but not enough to warrant the conclusion that they are "mercenaries" in the way that the term was used (and dreaded) in the Eighteenth Century. Thus, it's probably fair to say that, in virtue of their volunteer status, our modern armed forces come reasonably close to the bulwark against
tyranny that the Founders thought the state militias would be. And it's true that we have absolutely no reason to fear that our armed forces could be used against us in the way that, for example, the people of Tibet or even parts of China that are principally ethnically Chinese have to worry about the PLA.

But the Founders weren't worried about standing armies only because they feared a standing army would tyrannize the domestic population. They also feared that a standing army without sufficient connection to the mass of the people would be used by political leaders to entangle the nation in foreign wars. A volunteer force was an antidote to this problem because service would be nearly universal (at least among adult white men). What the Founders did not contemplate was a volunteer force that was sufficiently small relative to the population that its members could be sent into indefinite foreign adventures without sparking a mass movement of the people.

Posted by Mike Dorf


Derek said...

Also, they probably didn't contemplate the massive propaganda machine that could be used to convince much of the population that those adventures were justified.

Caleb said...

What about the war of 1812? It was unpopular in most of New England, but the tail-end of the founding generation was still able to push the country into it. Protests might have saved the Canadians in a few battles, but they still had to fight.

Unknown said...

A volunteer force was an antidote to this problem because service would be nearly universal (at least among adult white men).

This strikes me as rather odd. If serving were completely voluntary, I'd expect the percentage of people partcipating would vary according to the popularity of the cause. Granted, this would impose a limit on the kinds of wars that could be fought (at least at a time when bodies were more important than technology) but surely universal conscription would have been a much more effective means of ensuring that unpopular wars not be fought, if this was in fact the founders' intent. While imposing some form of compulsory military service on all adult males might have run afoul of their fear of standing armies, I'm sure they could have drafted a constitutional provision in a way that wouldn't leave their "solution" to the problem of unpopular wars vulnerable to the vagaries of population growth and technological innovation if they really wanted to.

Sobek said...

"The bit about the burden on President Bush relative to the troops and their families is simply too preposterous to discuss..."

I think that naively assumes away the collective burden of responsibility for all 4,000 lives. If you collectivize the families of the slain soldiers, sure, that burden is greater, but no one family carries that burden.

"They knew what they were getting into."

They did. It's part of the job. Rushing into a burning building is part of a firefighter's job. Getting shot at by the occasional gangster is part of a policeman's job. It doesn't mean I don't feel bad when they are injured or killed (and Cheney certainly doesn't say or imply anything to that effect), but they certainly know the risks.

"Thus, it's probably fair to say that, in virtue of their volunteer status, our modern armed forces come reasonably close to the bulwark against
tyranny that the Founders thought the state militias would be."

I don't follow your logic. Soldiers are less likely to serve as the private enforcers for tyrants if they are being paid? I think it's safer to say our military poses little risk of tyranny because we have 200 years of tradition of loyalty to the Constitution, rather than a single person, family or party.

"...we have absolutely no reason to fear that our armed forces could be used against us..."

I agree, but not everyone does.

Tom said...

"'s true that we have absolutely no reason to fear that our armed forces could be used against us..."

I think some of the residents in New Orleans right after hurricane Katrina might disagree with that statement. And then there are the people at Ruby Ridge and Waco who lost their lives on account of the Government. Oh, and there was also that nasty incident with the WWI bonus marchers in the '30s.

Nope, there really is no reason to fear that our armed forces could be used against us.

Sobek said...

Case in point.

But Tom, get your facts right. Ruby Ridge was the U.S. Marshalls and the FBI. Waco was the Bureau of ATF. Katrina was ... okay, I don't follow you on the Katrina thing. What do you believe the U.S. military did to Katrina survivors?

Garth Sullivan said...


what do you think miltary recruitment would be like if it didn't offer family healthcare, housing, college loan relief and a steady pay check?

if those "perks" were widely available, as they should be, only then, military recruitment would fluctuate with public opinion.

this is a class war for haliburton... no two ways about it.

James Gibson said...

I hope you are happy, I had to open one of these accounts to respond to both this article and your previous one on the 2nd amendment.

Mr. Dorf, I am quite convinced you haven't a clue as to how our modern military system is or in particular how the selective service system is supposed to work. You obviously haven't a clue how the arguments you make against private ownership both in the past and the present effect the military system.

First, I suggest you read the consolidated ruling on Conscription 1918, US Supreme Court. In it you will find reference to a letter from James Monroe 1814 listing suggestions for a national conscription. That letter is rather easy to find in the Congressional on-line where you will find that its premise is in contradiction to yours that gun ownership was strictly for the purpose of State militia. For if men could only acquire military arms for use in the State militia what was Monroe requiring the men of the towns and communities to do in his first proposal. The first proposal which invokes the Grand Body Populace argument used by the Supreme Court in 1918. Of course, he could have been just as wrong as some people say Madison was in 1789, but then again you would think he would have it right 25 years later.

Second, read the bill that was actually debated in Congress in 1814. You will find its title most interesting " a conscription of 80,000 men from the militia." It seems the common militia that you say didn't exist in 1814 did. More importantly, it says SCOTUS was wrong in 1918 on what Congress was doing in 1814. In turn then read the 1917 Selective Service Act, taking the time to note the references to the 1916 National Defense Act. Seems SCOTUS got the idea that the government was conscripting from the Grand Body Populace. In truth they were conscripting men into the Army from the unorganized militia under section 57 of the 1916 Act. This, after the full conscription of the National Guard under Art 1 Sect 8 Cla 12. Yes, we don't activate the Guard under Art 1 Sec 8 Cla 15, we conscript to remove the prohibition against them being used outside the borders of the nation embedded in cla 15. Oh, and the conscripts are to be led by the ROTC and JROTC Cadets, who now get no small arm training because of the no guns on campus law.

Oh, lets also note the 1916 national defense act sec 113, Encouragement of Rifle Practice. The establishment of indoor and outdoor rifle ranges throughout the country. Why, so that when a call up was needed we had both a reserve of trained marksmen and training facilities for those conscripted into service. Of course the gun control movement has made no secret their goal of ending the CMP, and the Federal dole of arms for the program, or of the new requirement of AR-15s for the higher level competitions. And why the AR-15, if they are to be trained for potential military service you might as well have them trained with something that at least resembles the arm they would be required to use (and besides the M-16 hasn't had a full auto setting for 20 years).

Fascinating requirements that were laid down by the CMP Board for the AR-15s. Mandated thast the guns have the new Army barrels, new Army sights, and built by one of only two manufacturers. Like the arms in the 1792 militia Act, nearly interchangeable with the present standard Army rifle right down to the new SS109 ammunition. Any of these guns could be appropriated for Federal Service and no one would know the difference.

Of course no one told the State of California this when they created the 5 shot fakers through Bushmaster so we could have our CMP rifle while not having a true Assault rifle. Nor was Tom Dias told when he issued his analysis that the Army didn't need standardization of arms and could be forced to buy its guns on the world market (VPC study 2005).

How about the sections in Federal code regarding the State Defense Forces and how they are to be armed and even uniformed eventhough they have no Federal function and not subject to Federalisation. Oh, I forgot, you and Mr. Finkelman got the SDF declared unconstitituional in your militia definition through the 9th circuit ruling of 2002. Too bad no one told California, but then again the SDF was already on active duty guarding the State armories while the National Guard was in Afghanistan. By the way, State law prohibits the SDF from bearing arms unless Congress declares war even if they are doing guard duty prescribed under Federal law.

By the way, remember when your friend Judge Reinhart told California to stop arming retired cops with Assault weapons until they officially call these men a military reserve. Of course such a declaration would be conflict with Art 1 Sec 8, Cla 12, but then again since the 2nd Amendment (unincorporated) bars a Federal Appears court from imposing rules on how a State arms any of its citizens the State just ignored that part of the ruling. And as of 2006 the arming now includes 50 caliber rifles which are banned from the militia but allowed to retired cops for Sporting and Recreational purposes. I can be drafted into the SMR and either armed with a Bolt Action under the restrictions of the Assault Weapon law, or totally prohibited to bear arms while retired cops stay home with proper weapons including Federally supplied M-16s. Is this the system as you know it.

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