History Lesson — Robert Bateman teaches the Oregon “militia” a few things about their rights and wrongs.

Massachusetts, April 1775.  Daniel Shays was 30 years old when things went all squirrelly. The son of Irish immigrants, he spent his early years working on a farm in the western part of the state. Agrarian labor was the lot of the overwhelming majority, especially those living away from the coast. Swept up in the emotions of the day, Shays walked to Boston and immediately enlisted in one of the newly raised militia regiments then surrounding Boston in the wake of Lexington and Concord.

By all accounts Shays was a solid man. A stalwart soldier. Because he already had a modicum of training, Shays was enlisted as a sergeant. In that rank he fought at some of the most pivotal battles of the Revolutionary War: first, Bunker Hill; then, after his regiment went from being “militia” to “regulars” in the Continental Army, Long Island, New York, Saratoga, and his last battle, Stony Point.

It is there that we really come to see what kind of soldier he was. By then, Shays had been promoted to lieutenant and then captain of a company in his regiment. And he was not just any captain: He was the commander of the elite “light” company. It was in that role that he participated in the storming of Stony Point, during which American troops made a midnight assault with unloaded weapons, just bayonets, and won a significant and lopsided victory against the British. Shays performed so heroically that the Marquis de LaFayette personally awarded him a ceremonial sword in recognition of his leadership. (There was no such thing as a ribbon or a medal yet, at least not institutionally.)

In 1780, due to wounds, he mustered out. He had been away from home for five years, without pay. Yea, nada. Food and uniforms, but no actual pay. When he got home he found that he was being called before court for failure to pay debts. What a kick in the nuts for a guy who just spent five years, and spilled blood, unpaid, on behalf of the new nation. Eventually he sold the sword from the Marquis for petty cash.

Things weren’t much better for the state. After the war ended in 1783, Massachusetts was trying hard to clear its debts. But their technique was somewhat lacking. Among other things, they pushed hard on the collection of debts and taxes, especially in the sparsely inhabited and relatively poor western parts of the state. The men living there felt cut out, particularly since it was the rich businessmen, mostly on the coast, who held political power.

A tax revolt ensued. Something of a natural leader, Shays unexpectedly found himself in the lead of armed men once again. This time, however, they were fighting against their own government. It was, by any definition, an insurrection against the United States of America: Armed men sought to take over federal property (the Armory in Springfield). They were confronted by organized militia, raised locally, and paid by private donors because there was no “official” money for such a contingency. Both sides had over 1000 men. But one side, the authorized militia, had cannon, and that made all the difference. The insurrection was busted, and their whole effort ended in chaos. Their rebellion against America ended in abject failure. The conflict, known commonly as Shays’ Rebellion (though Shays was just one of its leaders), shocked the nation and had enormous influence over what became the U.S. Constitution.

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The men in Bend, Oregon identify themselves as “patriots.” Many self-describe themselves as members of an extremist group known as the “Three Percent” – harkening back to the alleged percentage of colonists who fought on the American side in the Revolutionary War. They make much ado about being true to the U.S. Constitution.

But their knowledge of the actual history, let alone the text, of the Constitution, appears to be, shall we say, a tad lacking. To begin with, they seem to skip over some of its words. To begin, let’s look at what it means to be a “militia,” as these men claim to be. Here are the powers granted to Congress, in the Constitution, as they relate to “militia:

“To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

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.”

Bottom Line: There is no such thing as a “locally organized” militia that is not subject to the authority of a State or the Federal Government. Indeed, such is almost explicitly prohibited, in no small part because the Founding Fathers wanted to prevent something like Shays’ Rebellion from happening again.

Now let’s take a look at the definition of treason, as defined by the Constitution:

 “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

Does taking over federal property or fighting the US government constitute “levying war?” For that, we must decide whether or not a forcible occupation of federal property that obstructs the ability of U.S. citizens from enjoying its resources constitute “insurrection.” The Insurrection Act, written by the Founding Fathers in 1807, which these Oregon dudes profess to adore, says this:

“The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.”

In reality, these men in Oregon are following in the footsteps of Daniel Shays’ armed insurrection, not his military service. Shays’ later actions, which are the very basis for the use of the terms “militia” and “treason” and the authority given to Congress to raise troops from the militia in order to suppress “insurrection,” are their antecedents.

Damn those Founding Fathers and the documentation that they inconveniently left behind.

Sure They Would — Rebecca Gordon in The Nation tallies up the votes from presidential candidates in favor of committing war crimes.

They’re back!

From the look of the presidential campaign, war crimes are back on the American agenda. We really shouldn’t be surprised, because American officials got away with it last time—and, in the case of the drone wars, continue to get away with it today. Still, there’s nothing like the heady combination of a “populist” Republican race for the presidency and national hysteria over terrorism to make Americans want to reach for those “enhanced interrogation techniques.” That, as critics have long argued, is what usually happens if war crimes aren’t prosecuted.

In August 2014, when President Obama finally admitted that “we tortured some folks,” he added a warning. The recent history of US torture, he said, “needs to be understood and accepted. We have to as a country take responsibility for that so hopefully we don’t do it again in the future.” By pinning the responsibility for torture on all of us “as a country,” Obama avoided holding any of the actual perpetrators to account.

Unfortunately, “hope” alone will not stymie a serial war criminal—and the president did not even heed his own warning. For seven years his administration has done everything except help the country “take responsibility” for torture and other war crimes. It looked the other way when it comes to holding accountable those who set up and ran the CIA’s large-scale torture operations at its “black sites” around the world. It never brought charges against those who ordered torture at Guantánamo. It prosecuted no one, above all not the top officials of the Bush administration.

Now, in the endless run-up to the 2016 presidential elections, we’ve been treated to some pretty strange gladiatorial extravaganzas, with more to come in 2016. In these peculiarly American spectacles, Republican candidates hurl themselves at one another in a frenzied effort to be seen as the candidate most likely to ignore the president’s wan hope and instead “do it again in the future.” As a result, they are promising to commit a whole range of crimes, from torture to the slaughter of civilians, for which the leaders of some nations would find themselves hauled into international court as war criminals. But “war criminal” is a label reserved purely for people we loathe, not for us. To paraphrase former President Richard Nixon, if the United States does it, it’s not a crime.

In the wake of the brutal attacks in Paris and San Bernardino, the promises being openly made to commit future crimes have only grown more forthright. A few examples from the presidential campaign trail should suffice to make the point:

* Ted Cruz guarantees that “we” will “utterly destroy ISIS.” How will we do it? “We will carpet bomb them into oblivion”—that is, “we” will saturate an area with munitions in such a way that everything and everyone on the ground is obliterated. Of such a bombing campaign against the Islamic State, he told a cheering crowd at the Rising Tide Summit, “I don’t know if sand can glow in the dark, but we’re going to find out.” (It’s hard not to take this as a reference to the use of nuclear weapons, though in the bravado atmosphere of the present Republican campaign a lot of detailed thought is undoubtedly not going into any such proposals.)

* Kindly retired pediatric neurosurgeon Ben Carson evidently has similar thoughts. When pressed by CNN co-moderator Hugh Hewitt in the most recent Republican debate on whether he was “tough” enough to be “okay with the deaths of thousands of innocent children and civilian[s],” Carson replied, “You got it. You got it.” He even presented a future campaign against the Islamic State in which “thousands” of children might die as an example of the same kind of tough love a surgeon sometimes exhibits when facing a difficult case. It’s like telling a child, he assured Hewitt, that “we’re going to have to open your head up and take out this tumor. They’re not happy about it, believe me. And they don’t like me very much at that point. But later on, they love me.” So, presumably, will those “dead innocent children” in Syria—once they get over the shock of being dead.

* Jeb Bush’s approach brought what, in Republican circles, passes for nuance to the discussion of future war-crimes policy. What Washington needs, he argued, is “a strategy,” and what stands in the way of the Obama administration’s developing one is an excessive concern with the niceties of international law. As he put it, “We need to get the lawyers off the back of the warfighters. Right now under President Obama, we’ve created…this standard that is so high that it’s impossible to be successful in fighting ISIS.” Meanwhile, Jeb has surrounded himself with a familiar clique of neocon “advisers”—people like George W. Bush’s former deputy secretary of defense Paul Wolfowitz and his former deputy national security advisor Stephen Hadley, who planned for and advocated the illegal US war against Iraq, which touched off a regional war with devastating human consequences.

* And then there is Donald Trump. Where to start? As a simple baseline for his future commander-in-chiefdom, he stated without a blink that he would bring back torture. “Would I approve waterboarding?” he told a cheering crowd at a November rally in Columbus, Ohio. “You bet your ass I would—in a heartbeat.” And for Trump, that would only be the beginning. He assured his listeners, vaguely but emphatically, that he “would approve more than that,” leaving to their imaginations whether he was thinking of excruciating “stress positions,” relentless exposure to loud noise, sleep deprivation, the straightforward killing of prisoners, or what the CIA used to delicately refer to as “rectal rehydration.” Meanwhile, he just hammers on when it comes to torture. “Don’t kid yourself, folks. It works, okay? It works. Only a stupid person would say it doesn’t work.”

Only a stupid person—like, perhaps, one of the members of the Senate Intelligence Committee who carefully studied the CIA’s grim torture documents for years, despite the Agency’s foot-dragging, opposition, and outright interference (including computer hacking)—would say that. But why even bother to argue about whether torture works? The point, Trump claimed, was that the very existence of the Islamic State means that someone needs to be tortured. “If it doesn’t work,” he told that Ohio crowd, “they deserve it anyway.”

Only a few days later, he triumphantly sallied even further into war criminal territory. He declared himself ready to truly hit the Islamic State where it hurts. “The other thing with the terrorists,” he told Fox News, “is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families.” Because it’s a well-known fact—in Trumpland at least—that nothing makes people less likely to behave violently than murdering their parents and children. And it certainly doesn’t matter, when Trump advocates it, that murder is a crime.

The Second Amendment: Original Intent — John Quintance at The New Yorker uncovers some correspondence that should clear it up.

December 5, 1791
James Madison
House of Representatives

Dear James,

How is it almost 1792?! Quick question on the right to bear arms thing in your “Bill of Rights”—the wording and punctuation are slightly confusing. Did you mean that the right of the people serving in the militia to keep and bear arms shall not be infringed, or people in general? I’m assuming the former, but don’t want to make an ass of you and me! (Franklin made that up, but I’m using it everywhere!) Could you please send me a quick note whenever to clarify?

TJ

P.S. To be honest, I’m still meh about “Bill of Rights” as a name.

* * *

December 7, 1791
Thomas Jefferson
Office of the Secretary of State

Dear Tom,

I know, it’s so crazy how fast this year has gone—I just got used to writing 1791 on my deeds of purchase (of slaves)!

As far as the amendment, of course it’s the former. If every private citizen had the right to carry a musket, a thousand people would’ve shot Patrick Henry by now, am I right? Don’t worry about it. Everyone will know what it means.

JM

P.S. You’re not back on “The Ten Amendments” are you? It’s trying way too hard to sound Biblical.

* * *

December 9, 1791
James Madison
House of Representatives

Dear James,

Hahaha re: Patrick Henry. And I agree it should be obvious. It’s just, why not make it so clear that even the biggest Anti-Federalist looney tune can’t misinterpret the meaning? I’d add “while serving in the militia” to line three. Also, not to be a grammar redcoat here, but the use and placement of the comma isn’t helping. Can we change it? It will take two seconds.

I know I’m being annoying!

TJ

P.S. How about “Constitution, Part Two?” (Not a serious pitch, unless you like it!)

* * *

December 11, 1791
Thomas Jefferson
Office of the Secretary of State

Dear Tom,

There is literally zero chance that anyone will misconstrue this, and the great news is that if someone actually does, the Supreme Court will set them straight. I don’t want to change it. It won’t take two seconds, because the addition would push a page and I’d have to do the whole rest of it over again and W. is breathing down my neck about it. Plus, I like the way my signature looks on the version I sent you, and you know I always hate the way it looks on important stuff.

Not trying to be snippy, but you’re worrying about nothing.

JM

* * *

December 13, 1791
James Madison
House of Representatives

Dear James,

I know, I know—I’m the worst. Just hear me out. Imagine it’s some two hundred years from now. Musket makers have made new and more powerful muskets—ones that are capable of firing two or even three shots per minute—and, in an effort to sell more, they claim that every homeowner should have the right to own one, or two, or twenty. They bribe politicians to advance their cause, they stoke public fears of crime and federal tyranny, and they manage to exploit this slightly confusing language and comma placement to claim that we originally intended to give every private citizen the right to own as many muskets (and for that manner, cannons!) as they can get their hands on. And because in this version of the future (just bear with me here) we’ve had such a run of Anti-Federalist Presidents, the Court is packed with men who might agree. Isn’t there the slightest chance that this could happen?

TJ

* * *

December 15, 1791
Thomas Jefferson
Office of the Secretary of State

Dear Tom,

You know I love you, but we seriously need to get this ratified, like, today, or W. will have my ass. There is no way that what you’re talking about could come to pass. It’s too ridiculous. The amendment goes before Congress as written.

Besides, if anyone ever needs to confirm our intention two hundred years from now, they need only consult any decent spiritualist to communicate with our ghosts. If muskets can fire three shots per minute in your future, I’m sure mediums will have become even better at their jobs, too.

JM

Doonesbury — Can’t get here from there.