Archive for January, 2020

To the People of Virginia

Wednesday, January 15th, 2020

To the People of Virginia Constitution and Statutes –  bear arms

 

Let’s start the discussion of the Virginia legislature and governor’s efforts to outlaw possession of firearms with an understanding of the early interpretation of the foundation of a constitutional government with reference to Barron v. City of Baltimore, 32 U.S. 243 (1833), Barron sought relief from property taken by action of the City of Baltimore.  He argued that the Fifth Amendment to the [federal] Constitution protected his property and required compensation for loss of use.  In the Opinion of the Court, Justice Marshall makes clear that the Fifth Amendment does not extend to the states, nor does it afford any protection against the state enacting laws that might appear to be in conflict with certain provisions of the Constitution.  He explains that there is a separation between the two governments, and that the Constitution is only applicable to the general [federal] government. (At 247, 248:)

“The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.”

Clearly, the federal Constitution is not protective of a right, it simply exclude the federal government from infringing on that right. That, then, leaves any consideration to the state (Virginia) constitution and supportive statutes as the source of authority in the matter. This is supported by the Tenth Amendment in the Bill of Rights, to wit:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Let’s look at another state Supreme Court decision that we might also consider:
In Bayard v. Singleton [1 N.C. 42; 1787], the North Carolina Supreme Court rightfully ruled on a case where the legislature had enacted a law contrary to the North Carolina Constitution. In overturning that law, that Court stated:

“But that it was clear that no act they [the state legislature] could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established.”

So, let’s start with the Virginia Constitution of 1997

Article I. Bill of Rights

“A DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers, which rights do pertain to them and their posterity, as the basis and foundation of government.”

Section 13. Militia; standing armies; military subordinate to civil power.

“That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”

So, let’s see what the Statutes say, with regard to, “militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed”

The following are  directly from those statutes:

§ 44-1. Composition of militia.

“The militia of the Commonwealth of Virginia shall consist of all able-bodied residents of the Commonwealth who are citizens of the United States and all other able-bodied persons resident in the Commonwealth who have declared their intention to become citizens of the United States, who are at least 16 years of age and, except as hereinafter provided, not more than 55 years of age. The militia shall be divided into three classes: the National Guard, which includes the Army National Guard and the Air National Guard; the Virginia Defense Force; and the unorganized militia.”

§ 44-2. Composition of National Guard.

  1. The National Guard shall consist of the regularly enlisted militia and of commissioned and warrant officers, who shall be residents of the Commonwealth of Virginia and shall fall within the age limits and qualifications as prescribed in existing or subsequently amended National Guard regulations (army and air), organized, armed and equipped as hereinafter provided. Upon original enlistment members of the National Guard shall not be less than 17 nor more than 55 years of age, or, in subsequent enlistments not more than 64 years of age.
  2. Notwithstanding the above, persons otherwise qualified but residing outside the Commonwealth of Virginia, may enlist or serve as commissioned or warrant officers in the National Guard.

§ 44-4. Composition of unorganized militia.

“The unorganized militia shall consist of all able-bodied persons as set out in § 44-1, except such as may be included in §§ 44-2 [see above] and 44-54.6 and except such as may be exempted as hereinafter provided.”

§ 44-5. Exemptions from militia duty.

“In addition to those exempted by the laws of the United States, the following persons shall be exempt from military duty under a state call:

  1. The officers, judicial and executive, of the governments of the United States and the Commonwealth of Virginia;
    2. The members of the General Assembly of the Commonwealth of Virginia and of the Congress of the United States;
    3. Persons in the active military or naval services of the United States;
    4. Persons employed by the United States in the transmission of the mail;
    5. The judges and clerks of courts of record;
    6. The mayor and councilmen of incorporated cities and towns;
    7. Members of the governing bodies of counties;
    8. Sheriffs, United States district attorneys, attorneys for the Commonwealth and city attorneys;
    9. Marine pilots;
    10. All persons who because of religious belief shall claim exemption from military service, if the conscientious holding of such belief by such person shall be established under such regulations as the President of the United States shall prescribe, shall be exempted from militia service in any capacity that the President shall declare to be combatant; and
    11. Such other persons as may be designated by the Governor in the best interests of the public and of the Commonwealth.”

§ 44-8. Governor as Commander in Chief.

“The Governor shall be Commander in Chief of the armed forces of the Commonwealth, and shall have power to employ such forces to repel invasion, suppress insurrection, and enforce the execution of the laws.”

So, what if the Governor refuses to obey the Virginia Constitution and laws made in pursuance thereof?

Let’s regress to:
Article I. Bill of Rights

“A DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers, which rights do pertain to them and their posterity, as the basis and foundation of government.”

Perhaps that answers the question.

So, let’s continue with the Statutes:

§ 44-9. Commander in Chief to prescribe regulations.

“The Commander in Chief shall have the power, and it shall be his duty, from time to time, to issue such orders and to prescribe such regulations relating to the organization of the armed forces of the Commonwealth as will cause the same at all times to conform to the federal requirements of the United States government relating thereto.”

[Where are these prescribed regulations?]

Remember Article I of the Bill of Rights, and substitute here applicable.

  • 44-75.1. Militia state active duty.
  1. The Governor or his designee may call forth the militia or any part thereof to state active duty for service in any of the following circumstances:
  2. In the event of invasion or insurrection or imminent threat of either;
  3. When any combination of persons becomes so powerful as to obstruct the execution of laws in any part of this Commonwealth;
  4. When the Governor determines that a state agency or agencies having law-enforcement responsibilities are in need of assistance to perform particular law-enforcement functions, which functions he shall specify in his call to the militia;

Numbers 4 through 7 and Part “B” are not relevant to the discussion

  • 44-78.1. Request for assistance by localities.

“In the event of the circumstances described in subdivision A 2, 4 or 5 of § 44-75.1 arise within a county, city or town of the Commonwealth, either the governing body or the chief law-enforcement officer of the county, city or town may call upon the Governor for assistance from the militia. The Governor may call forth the militia or any part thereof to provide such assistance as he may deem proper in responding to such circumstances, but in all instances the militia shall remain subject to military command and not to civilian authorities of the county, city or town receiving assistance.”

  • 44-80. Order in which classes of militia called into service.

“The National Guard, the Virginia Defense Force, and the unorganized militia or any part thereof may be ordered into service by the Governor in such order as he determines.”

  • 44-81. Length of service when called out.

“The National Guard, the Virginia Defense Force, or the unorganized militia, when called into service by the Governor, shall serve for such time as, in the Governor’s judgment, may be necessary.”

  • 44-85. Regulations and penalties.

“Whenever any part of the unorganized militia is ordered out, it shall be governed by the same rules and regulations and be subject to the same penalties as the National Guard.”

  • 44-86. When ordered out for service.

“The commander in chief may at any time, in order to execute the law, suppress riots or insurrections, or repel invasion, or aid in any form of disaster wherein the lives or property of citizens are imperiled or may be imperiled, order out the National Guard and the inactive National Guard or any parts thereof, or the whole or any part of the unorganized militia. When the militia of this Commonwealth, or a part thereof, is called forth under the Constitution and laws of the United States, the Governor shall order out for service the National Guard, or such part thereof as may be necessary; and he may likewise order out such a part of the unorganized militia as he may deem necessary. During the absence of organizations of the National Guard in the service of the United States, their state designations shall not be given to new organizations.”

  • 44-87. Manner of ordering out for service.

“The Governor shall, when ordering out the unorganized militia, designate the number to be so called. He may order them out either by calling for volunteers or by draft.”

  • 44-89. Draft of unorganized militia.

“If the unorganized militia is ordered out by draft, the Governor shall designate the persons in each county and city to make the draft, and prescribe rules and regulations for conducting the same.”

1930, p. 965; Michie Code 1942, § 2673(74).

  • 44-90. Punishment for failure to appear.

“Every member of the militia ordered out for duty, or who shall volunteer or be drafted, who does not appear at the time and place ordered, shall be liable to such punishment as a court-martial may direct.”

Additional pertinent statutes:

§ 2.2-2801. Disability to hold state office; exceptions.

  1. Section 2.2-2800 shall not be construed to prevent:
  2. Members of Congress from acting as visitors of the University of Virginia or the Virginia Military Institute, or from holding offices in the militia;
  3. United States commissioners or United States census enumerators, supervisors, or the clerks under the supervisor of the United States census, or fourth-class or third-class postmasters, or United States caretakers of the Virginia National Guard, from acting as notaries, school board selection commission members, or supervisors, or from holding any district office under the government of any county, or the office of councilman of any town or city in the Commonwealth;
  4. Any United States rural mail carrier, or star route mail carrier from being appointed and acting as notary public or holding any county or district office;
  5. Any civilian employee of the United States government from being appointed and acting as notary public;
  6. Any United States commissioners or United States park commissioners from holding the office of commissioner in chancery, bail commissioner, jury commissioner, commissioner of accounts, assistant commissioner of accounts, substitute or assistant civil justice, or assistant judge of a municipal court of any city or assistant judge of a juvenile and domestic relations district court of any city, or judge of any county court or juvenile and domestic relations district court of any county, or the municipal court or court of limited jurisdiction, by whatever name designated, of any incorporated town;
  7. Any person employed by, or holding office or a post of profit, trust or emolument, civil, legislative, executive or judicial, under the government of the United States, from being a member of the militia or holding office therein, or from being a member or director of any board, council, commission or institution of the Commonwealth who serves without compensation except one who serves on a per diem compensation basis;
  8. Foremen, quartermen, leading men, artisans, clerks or laborers, employed in any navy yard or naval reservation in Virginia from holding any office under the government of any city, town or county in the Commonwealth;
  9. Any United States government clerk from holding any office under the government of any town or city;
  10. Any person holding an office under the United States government from holding a position under the management and control of the State Board of Health;
  11. Any state federal director of the Commonwealth in the employment service of the United States Department of Labor from holding the office of Commissioner of Labor of the Commonwealth;
  12. Clerks and employees of the federal government engaged in the departmental service in Washington from acting as school trustees;
  13. Any person, who is otherwise eligible, from serving as a member of the governing body or school board of any county, city or town, or as a member of any public body who is appointed by such governing body or school board, or as an appointive officer or employee of any county, city or town or the school board thereof;
  14. Game management agents of the United States Fish and Wildlife Service or United States deputy game wardens from acting as special conservation police officers;
  15. Any appointive state or local official or employee from serving, with compensation, on an advisory board of the federal government;
  16. Any state or local law-enforcement officer from serving as a United States law-enforcement officer; however, this subdivision shall not be construed to authorize any law-enforcement officer to receive double compensation;
  17. Any United States law-enforcement officer from serving as a state or local law-enforcement officer when requested by the chief law-enforcement officer of the subject jurisdiction; however, this subdivision shall not be construed to authorize any law-enforcement officer to receive double compensation;
  18. Any attorney for the Commonwealth or assistant attorney for the Commonwealth from serving as or performing the duties of a special assistant United States attorney or assistant United States attorney; however, this subdivision shall not be construed to authorize any attorney for the Commonwealth or assistant attorney for the Commonwealth to receive double compensation;
  19. Any assistant United States attorney from serving as or performing the duties of an assistant attorney for the Commonwealth when requested by the attorney for the Commonwealth of the subject jurisdiction; however, this subdivision shall not be construed to authorize any assistant United States attorney to receive double compensation;
  20. Any elected state or local official from serving, without compensation, on an advisory board of the federal government; however, this subdivision shall not be construed to prohibit reimbursement for actual expenses;
  21. Sheriffs’ deputies from patrolling federal lands pursuant to contracts between federal agencies and local sheriffs;
  22. State judicial officers from performing acts or functions with respect to United States criminal proceedings when such acts or functions are authorized by federal law to be performed by state judicial officers; or
  23. Any member of the Armed Forces of the United States from serving on the Virginia Military Advisory Council or the Virginia Offshore Wind Development Authority.
  24. Nor shall § 2.2-2800 be construed to exclude:
  25. A person to whom a pension has been granted by the United States or who receives retirement compensation in any manner from the United States, or any person receiving or entitled to receive benefits under the Federal Old-Age and Survivors’ Insurance System or under the Federal Railroad Retirement Act.
  26. Officers or soldiers on account of the recompense they may receive from the United States when called out in actual duty.

§ 18.2-411. Dispersal of unlawful or riotous assemblies; duties of officers.

“When any number of persons, whether armed or not, are unlawfully or riotously assembled, the sheriff of the county and his deputies, the police officials of the county, city or town, and any assigned militia, or any of them, shall go among the persons assembled or as near to them as safety will permit and command them in the name of the Commonwealth immediately to disperse. If upon such command the persons unlawfully assembled do not disperse immediately, such sheriff, officer or militia may use such force as is reasonably necessary to disperse them and to arrest those who fail or refuse to disperse. To accomplish this end, the sheriff or other law-enforcement officer may request and use the assistance and services of private citizens. Every endeavor shall be used, both by such sheriff or other officers and by the officer commanding any other force, which can be made consistently with the preservation of life, to induce or force those unlawfully assembled to disperse before an attack is made upon those unlawfully assembled by which their lives may be endangered.”

Conclusion

So, it is clear, as per that statement from Bayard v. Singleton, that the Governor as well as the state legislature, have removed themselves from the contract known as the Virginia Constitution and Statutes made in pursuance thereof.

Let me repeat from the introduction of the Virginia Constitution:

“A DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers, which rights do pertain to them and their posterity, as the basis and foundation of government.”