Role of the military in a Civil War?

[Kiloalpha]

Honestly, Business Insider isn't good for much else than clickbait "news" articles. However, this article piqued my interest. In a scenario like they outlined? I'd say they're right. But a full-on insurrection across the entire US? I think it would be a fractured mess. In the wake of the Turkey coup, such a scenario is just interesting to think about. To be clear, I am in no way advocating any action... Just a fun mental exercise. Any thoughts?

https://www.businessinsider.com/us-military-armed-rebellion-2016-8

[SuperWSO]

Our job is to "Support and defend the constitution of the United States against all enemies foreign and domestic." 

That leaves a lot for interpretation.

[daynightindicator]

Well, using the civil war as an example, the Union army was the United States Army. Any insurrection, no matter how big, would have to form an opposing force. I would imagine that anyone serving in the active duty or reserves would face heavy penalties (treason, I would imagine) if they fought for/with any opposing force. National Guard units would be an interesting case (since this hypothetical insurrection would most likely break down along state lines in many cases).

There's another good article out there about a "Texit" and how seceding is an illegal act in itself, of course if you're seceding you probably don't recognize the authority of the system anyway.

However, the government is within its legal bounds to act militarily to squash any secession or insurrection.

Interesting debate topic for sure.

[Kiloalpha]

The oath to the constitution is a great example. That oath however, is there to ensure that you are bound not to a single person (president) but a way of life/national structure. If POTUS goes off the rails, declares martial law and abuses his powers, a case could be made that by the military standing by silently or refusing those orders... That you were upholding that oath. I guess it all depends on the circumstances.

I took a class years ago that briefly talked about this very subject. A legal scholar told us that in his opinion, the original 13 colonies retained the right to secede, because they were foreign entities first and states second. Other states however, were created by the US government buying the land they exist on, and as a result, could not. Course, that leaves Tejas in an interesting spot, because they were their own entity for a while. 

Regardless, I think you'd see the nation break up into little kingdoms (states) in a large scale civil war. The national guard in those states could refuse their activations to Title 10 and serve the state instead if they chose. Talk about chaos. It would be like Turkey x10000.

Side note, there was talk a few months back about refusing to follow orders if the President demanded the military waterboard or torture prisoners. I guess the fundamental question is... at what point can the military say no?

[brickhistory]

BLUF:  Whatever each uniformed individual decides, he/she had better be on the winning side.

Now, in the event of a secession as in the original Civil War, the academic case has been made that the states, as sovereign entities that agreed to form the "United" States, they voluntarily agreed to form a union and, as a contract, had the right to break that contract should the terms not be met - i.e., "state's rights."

Since the North won - Lincoln did what he had to do to win and the Constitution be damned - suspending habeas corpus, freeing the slaves that were private property, thus denying "life, liberty, and the pursuit of happiness (read by the SCOTUS as property rights)," etc, etc, etc.

By winning, he and the federal government achieved the primacy of the federal over the individual state governments.  See Smith v. Texas (or some such where the SCOTUS ruled in the late 1800s that a state can't secede).  If the South had won, their argument would be the one that prevailed.  Ultimately, might does make right and the victor writes the aftermath law.

In the scenario listed in the article - pretty isolated and hardly a 'mass' insurrection - it isn't a Civil War.  Think New Orleans and Hurricane Katrina.  Big Green roled in and sorted out a lawless situation.  And the Second Amendment rights of Naw'oleans were violated wholesale at the time as just one real-time, real-world example.

A better, more realistic scenario would be a very liberal POTUS deciding to stretch (not all that much compared to Executive Actions begun under Lincoln, raped by FDR during WWII, and seduced during GWB and the current Administration) his/her powers to require registration of all privately-owned firearms under penalty of imprisonment for failure to comply.

Would sheriff's allow this?

Would state governments?

Would the SCOTUS?

What if the answer to this is "yes?" by any or all of these institutions?

Would you comply?

If, to force compliance, the National Guard was federalized in order to conduct house to house searches, all in the 'national interest,' or even the standing military was ordered to do so, then the basics for an insurrection are formed.

Would the Guard comply?  Would the military?

My personal opinion is that younger troops/officers would follow these orders.  I am not sure about mid-grade NCOs/FGOs.  I hope (never a good basis for planning) that the senior NCOs/GOs would stop this by mass resignations and/or passive resistance.

If you are wearing a uniform currently, you  have to decide what you will do.  Is it a "lawful" order?  You have a duty to carry out legitimate orders and an equally strong duty to disobey unlawful orders.

Better be right and on the winning side.

[Learjetter]

"PYB PYB PYB"

jk

[Clark Griswold]

2 hours ago, brickhistory said:

BLUF:  Whatever each uniformed individual decides, he/she had better be on the winning side.

Better be right and on the winning side.

Yup.  Two cliches apply, might makes right & history is written by the victors.  

The scenario is not to far fetched and I could see a constitutional / insurrection crisis coming from the Federal government's selective enforcement of laws of late, most notably immigration laws.  If a Red State chose to press-to-test and began mass immigration law enforcement with arrest/incarceration/deportment (at least out of state) of known illegal immigrants, particularly when discovered via contact with LE, we could find ourselves living in interesting times.

The state could argue self-defense via the presence of illegal aliens (legitimately when said illegal alien is arrested from the commission of another crime).  The Federal Government would argue immigration is a Federal issue (rightly) but the state(s) could argue (rightly) to do your job with a subjective argument made that the manner in which the Federal government is currently performing it is in inadequate.  To the Supreme Court for resolution or to a gunfight for resolution?  My preference the former but  America has a tendency every oh 75 years or so to have some major internal fights / family feuds, a show down may be inevitable or even necessary to decide it conclusively by one side of the argument literally vanquished.

 

[brickhistory]

32 minutes ago, Learjetter said:

"PYB PYB PYB"

jk

Really?

 

To take what I consider a bad illustration of a hypothetical - Podunk, SC secedes and it's called an insurrection - and give a plausible scenario for getting into a Civil War for a largely academic discussion turns me into PYB?

I used to think about "lawful" orders back in the day when sitting ICBM alert.

Since the chain runs POTUS-SECDEF-me, I did sometime wonder about it.

We all think about a key-turn being based upon a retaliation for an incoming nuclear strike.

What if it wasn't?  Was it legal for me to nuke someone due to a sensor failure/computer glitch?

Or if the target was not the then-USSR but, say, Alberta?  I notionally received a valid execute order.  Was it legal?

It got pretty weird under North Dakota at 0300.  Turn the capsule lights off and only have the status indicators shining, cranks some Pink Floyd in the headphones and, "The Horror, the horror..."

The thread was a "what if."  I tried to give a "what if" that would involve the military and each serving member had to make a choice. No standing on the sideline.

I did not advocate a position although my political bias did come out with the "liberal POTUS."  Could just as easily be a arch-right winger as well giving an unlawful order.

 

Edited August 21, 2016 by brickhistory
Missed the "jk"

[Kiloalpha]

9 minutes ago, brickhistory said:

I used to think about "lawful" orders back in the day when sitting ICBM alert.

Since the chain runs POTUS-SECDEF-me, I did sometime wonder about it.

We all think about a key-turn being based upon a retaliation for an incoming nuclear strike.

What if it wasn't?  Was it legal for me to nuke someone due to a sensor failure/computer glitch?

Or if the target was not the then-USSR but, say, Alberta?  I notionally received a valid execute order.  Was it legal?

It got pretty weird under North Dakota at 0300.  Turn the capsule lights off and only have the status indicators shining, cranks some Pink Floyd in the headphones and, "The Horror, the horror..."

The thread was a "what if."  I tried to give a "what if" that would involve the military and each serving member had to make a choice. No standing on the sideline.

I did not advocate a position although my political bias did come out with the "liberal POTUS."  Could just as easily be a arch-right winger as well giving an unlawful order.

I honestly never thought about the ICBM forces dealing with that, but it makes perfect sense. You could easily find yourself in a real-life Crimson Tide (minus the dialogue about horses and the infighting). It's one thing to refuse to roll a few M1 Abrams into a crowded "insurrection"... but completely another to pull the trigger on a weapon that decimates millions. I've got nothing but respect for you guys in the silos... I could never do it. 

Like you said though, better be on the winning side.

43 minutes ago, Clark Griswold said:

The scenario is not to far fetched and I could see a constitutional / insurrection crisis coming from the Federal government's selective enforcement of laws of late, most notably immigration laws.  If a Red State chose to press-to-test and began mass immigration law enforcement with arrest/incarceration/deportment (at least out of state) of known illegal immigrants, particularly when discovered via contact with LE, we could find ourselves living in interesting times.

The state could argue self-defense via the presence of illegal aliens (legitimately when said illegal alien is arrested from the commission of another crime).  The Federal Government would argue immigration is a Federal issue (rightly) but the state(s) could argue (rightly) to do your job with a subjective argument made that the manner in which the Federal government is currently performing it is in inadequate.  To the Supreme Court for resolution or to a gunfight for resolution?  My preference the former but  America has a tendency every oh 75 years or so to have some major internal fights / family feuds, a show down may be inevitable or even necessary to decide it conclusively by one side of the argument literally vanquished.

Very true. However, you also have a third option that wasn't listed. An Article 5 convention of the states. Sadly, that idea seems to be largely parroted by the alt-right and Tea Party types anymore. Under that convention, you could easily handle any/all issues (pretty much) without bloodshed.

In reading a few articles after posting this, there's the assumption that any "civil war" would break along the old Mason-Dixon line. I completely disagree. Back then, it was a dividing line in culture, from the plantations of the south to the factories of the north. Today, that divide is between the city and the country in any given state. Look up an electoral map in past years for a state, and generally you'll see a sea of red with pockets of blue around the major cities. 

[pbar]

3 hours ago, brickhistory said:

A better, more realistic scenario would be a very liberal POTUS deciding to stretch (not all that much compared to Executive Actions begun under Lincoln, raped by FDR during WWII, and seduced during GWB and the current Administration) his/her powers to require registration of all privately-owned firearms under penalty of imprisonment for failure to comply.

I don't think the scenario will go down like this. They will eliminate gun rights via death by a thousand cuts.  Massive tax increases on guns and ammo is the first step.  Shut down shooting ranges because of "lead contamination".  Repeal CCW.  Etc.  They certainly won't send police and military around to confiscate firearms.  There's an easier way; once they have ownership lists (whether via registration, data mining, asking your kids at school, etc.), they simply make any interaction with the government contingent upon surrendering your firearms.  Want to renew your license plates?  Turn in your guns.  Want to get a tax refund?  Turn in your guns. Want to vote?  Turn in your guns.  Etc...

[Learjetter]

Really?

 

To take what I consider a bad illustration of a hypothetical - Podunk, SC secedes and it's called an insurrection - and give a plausible scenario for getting into a Civil War for a largely academic discussion turns me into PYB?

I used to think about "lawful" orders back in the day when sitting ICBM alert...

 

My comment was a funny.

Because PYB and lawful orders and Oathkeepers and 2A ad naseum.

Jk = just kidding

Lighten up, Francis.

[brickhistory]

29 minutes ago, Learjetter said:

My comment was a funny.

Because PYB and lawful orders and Oathkeepers and 2A ad naseum.

Jk = just kidding

Lighten up, Francis.

Yup.

 

Hence my edit above.  Missed it the first time through and mounted up my high horse of outrage.

Since dismounted.

All good. 

 

[Clark Griswold]

2 hours ago, Kiloalpha said:

Very true. However, you also have a third option that wasn't listed. An Article 5 convention of the states. Sadly, that idea seems to be largely parroted by the alt-right and Tea Party types anymore. Under that convention, you could easily handle any/all issues (pretty much) without bloodshed.

I wish I could believe there was enough citizenship left in the Republic to support that kind of involvement of the citizenry and lower echelons of government, all coordinating & deliberating to have national effect instead of the default solution now to just wait for the Federal Government, and really the Executive Branch, to by edict and unelected policy makers issue some decree, their echo chambers begin the repetition of talking points on legacy media and propaganda websites and the sheep follow, giving up freedom for a fairy tale that a bit more of the risk of life will be taken away and Big Brother will provide a little bit more, at no charge of course... 

When you see things like Constitutional law professors basically saying, "a republican democracy is hard when it is based on rational rules codified in formal documentation so let's just make it up as we go along", then you know we have crossed the Rubicon...

https://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-the-constitution.html?ref=opinion&_r=2&

[Stitch]

On 8/20/2016 at 5:58 PM, pbar said:

I don't think the scenario will go down like this. They will eliminate gun rights via death by a thousand cuts.  Massive tax increases on guns and ammo is the first step.  Shut down shooting ranges because of "lead contamination".  Repeal CCW.  Etc.  They certainly won't send police and military around to confiscate firearms.  There's an easier way; once they have ownership lists (whether via registration, data mining, asking your kids at school, etc.), they simply make any interaction with the government contingent upon surrendering your firearms.  Want to renew your license plates?  Turn in your guns.  Want to get a tax refund?  Turn in your guns. Want to vote?  Turn in your guns.  Etc...

Agreed.  While they may not outright repeal the 2nd, they'll make it such a pain in the ass/expensive no one will want to go to the trouble.  They could treat guns as a "public health" issue using the death/injury angle argument; now we're potentially under the provisions of the already in place Health Care Act.  Then there's the issue of if you wanna own a gun, after you prove need, you need a licensed, inspected and gov't approved home "armory"  (already been tossed around in Washington state but quickly "shot down" so-to-speak).   This could get ugly, ideas all sold under the idea of "making safer communities". 

Heck the 1st amendment is already under attack due to political correctness and I've seen some neighborhood associations try to shut down churches saying the environmental impact of increased vehicle traffic on Sunday mornings, the "noise" (worship music, singing, preacher's sermon, etc...) had a negative effect on local quality of life, due to loss of consort, lack of sleep while trying to ward off to much Saturday night booze, conflict with the NFL schedule... the list goes on and on.  The courts did however, quickly throw those suits out.  But get the right political climate, judge, etc... who knows.

[JS]

On August 20, 2016 at 11:01 PM, brickhistory said:

...Lincoln did what he had to do to win and the Constitution be damned - suspending habeas corpus, freeing the slaves that were private property...

Great post, but I have one minor correction - Lincoln didn't free shit.  And he sure as hell didn't free any slaves during the US Civil War.

He did make a political speech where he stated that slaves in a different sovereign nation, which happened to be at war with the USA, were "free."  But after his speech, the result was the same - no slaves were freed anywhere, not in the Confederacy, not in the Union (Delaware), not in those in between states (Kentucky), and not even in the rebellious states or areas the Union had control of at the time of the speech (Tennessee, New Orleans, etc).

I kind of equate this to if Obama were to give an emancipation proclamation that all slaves held by terrorist organizations in open conflict with the US, namely ISIS and the Taliban, are hereby freed.  Not a single person in the Middle East or Afghanistan would really be affected.   

The 13th Amendment of the Constitution, ratified a few months after the war, officially outlawed slavery and "freed" the remaining slaves in states that had not previously banned slavery.   

But I digress.  

[daynightindicator]

I don't think the scenario will go down like this. They will eliminate gun rights via death by a thousand cuts.  Massive tax increases on guns and ammo is the first step.  Shut down shooting ranges because of "lead contamination".  Repeal CCW.  Etc.  They certainly won't send police and military around to confiscate firearms.  There's an easier way; once they have ownership lists (whether via registration, data mining, asking your kids at school, etc.), they simply make any interaction with the government contingent upon surrendering your firearms.  Want to renew your license plates?  Turn in your guns.  Want to get a tax refund?  Turn in your guns. Want to vote?  Turn in your guns.  Etc...

So, each situation you listed would certainly be challenged in court, and many would probably eventually lead to a SCOTUS ruling to determine the constitutionality of such laws, and possibly force SCOTUS to issue a more comprehensive interpretation of 2A. If that interpretation were to significantly change gun ownership rights, it would, despite anyone's personal opinions of the subject matter, be a lawful action by SCOTUS under the constitution.

The other, far less likely (IMO) situation would be a repeal or textual amendment of 2A. Again, regardless of anyone's position on the issue, it would be a legal action (no amendment is above repeal despite strong feelings about some) if the amendment was ratified IAW the constitution.

My question is, since both situations would involve a legal action under the constitution, is what would you do? Nothing in the constitution puts any amendment above repeal. The Bill of Rights don't have any legal status above the other amendments (not a lawyer so if I'm wrong please let me know).

I've asked some friends of mine what they would do if 2A was repealed, and it's a pretty interesting point to ponder.

[daynightindicator]

Kilo,

Totally agree, there will be no 2A repeal in our lifetime, if ever.

I guess the big-picture hypothetical question is, since our oath is to the constitution (whatever it may be amended to read, not just as we like it), at what point would changes to said document reach a tipping point where those who took the oath refuse to continue to support and defend? Obviously it's probably at different points for different folks, but it's an interesting question.

[magnetfreezer]

4 hours ago, daynightindicator said:

So, each situation you listed would certainly be challenged in court, and many would probably eventually lead to a SCOTUS ruling to determine the constitutionality of such laws, and possibly force SCOTUS to issue a more comprehensive interpretation of 2A. If that interpretation were to significantly change gun ownership rights, it would, despite anyone's personal opinions of the subject matter, be a lawful action by SCOTUS under the constitution.

The other, far less likely (IMO) situation would be a repeal or textual amendment of 2A. Again, regardless of anyone's position on the issue, it would be a legal action (no amendment is above repeal despite strong feelings about some) if the amendment was ratified IAW the constitution.

My question is, since both situations would involve a legal action under the constitution, is what would you do? Nothing in the constitution puts any amendment above repeal. The Bill of Rights don't have any legal status above the other amendments (not a lawyer so if I'm wrong please let me know).

I've asked some friends of mine what they would do if 2A was repealed, and it's a pretty interesting point to ponder.

Interesting for sure. As a counterpoint, the Bill of Rights was originally opposed by many of the Founders - they believed that rights were inherent to citizens (natural law) and thought enumerating a bill of rights would restrict those which were not enumerated. In fact, US vs Cruickshank (https://en.wikipedia.org/wiki/United_States_v._Cruikshank) ruled that the right to bear arms was independent of the Constitution.

[Kiloalpha]

46 minutes ago, daynightindicator said:

I guess the big-picture hypothetical question is, since our oath is to the constitution (whatever it may be amended to read, not just as we like it), at what point would changes to said document reach a tipping point where those who took the oath refuse to continue to support and defend? Obviously it's probably at different points for different folks, but it's an interesting question.

Good question. But, would that tipping point ultimately mean treason? Is the oath of office meant to be a suicide pact to ride the Constitution (in whatever form it does take) to the very bottom? Heavy questions all around. A fun intellectual exercise though. Helps keep things in perspective.

8 minutes ago, magnetfreezer said:

Interesting for sure. As a counterpoint, the Bill of Rights was originally opposed by many of the Founders - they believed that rights were inherent to citizens (natural law) and thought enumerating a bill of rights would restrict those which were not enumerated. In fact, US vs Cruickshank (https://en.wikipedia.org/wiki/United_States_v._Cruikshank) ruled that the right to bear arms was independent of the Constitution.

True. A typical Federalist vs. Anti-Federalist argument. In hindsight, I'd rather have the Bill of Rights than not. I think it helps hold the gov accountable by telling people what they are entitled to, vs. natural law which could change everything thanks to the whims of society. After all, it's kind of hard to know that you've lost something when it was never put down on a single piece of paper. (See U.K.'s deference to Parliament in all matters thanks to an "uncodified" constitution)

[fire4effect]

Interesting we are having this conversation in the first place. But given who we have running for the office of POTUS on  both sides not really surprising. What would really be interesting would be the reaction of the Praetorian Guard (AKA Secret Service)....4000 or so strong? or say Brigade size.....who are supposed to be apolitical to the extreme....many of whom are former military....would they defend POTUS in a relevant scenario or walk....I understand that they're recruiting fewer than they are losing.......the times we live in....

[Guest]

Interesting we are having this conversation in the first place. But given who we have running for the office of POTUS on  both sides not really surprising. What would really be interesting would be the reaction of the Praetorian Guard (AKA Secret Service)....4000 or so strong? or say Brigade size.....who are supposed to be apolitical to the extreme....many of whom are former military....would they defend POTUS in a relevant scenario or walk....I understand that they're recruiting fewer than they are losing.......the times we live in....

Put....down....the....bottle....

Sent from my iPhone using Tapatalk

[brickhistory]

20 hours ago, JS said:

Great post, but I have one minor correction - Lincoln didn't free shit.  And he sure as hell didn't free any slaves during the US Civil War.

He did make a political speech where he stated that slaves in a different sovereign nation, which happened to be at war with the USA, were "free."  But after his speech, the result was the same - no slaves were freed anywhere, not in the Confederacy, not in the Union (Delaware), not in those in between states (Kentucky), and not even in the rebellious states or areas the Union had control of at the time of the speech (Tennessee, New Orleans, etc).

I kind of equate this to if Obama were to give an emancipation proclamation that all slaves held by terrorist organizations in open conflict with the US, namely ISIS and the Taliban, are hereby freed.  Not a single person in the Middle East or Afghanistan would really be affected.   

The 13th Amendment of the Constitution, ratified a few months after the war, officially outlawed slavery and "freed" the remaining slaves in states that had not previously banned slavery.   

But I digress.  

While I agree with your points, Lincoln's Emancipation Proclamation was an executive action that he unilaterally took stating that all the slaves within the Confederacy were free.  Interestingly, he didn't apply it to those held by Union states or territories (add Maryland among others to your list of Delaware).  While not 'legal' or Constitutional, he still did it.  A political act to be sure, but one which complicated the Confederacy's problems to no end.  Which I, clumsily, tried to use as a supporting argument for my scenario on Executive overreach and causing the basis for a Civil War.

IF the Constitution were to be so amended regarding the Second Amendment- the whole 3/4 of the states, ratified, etc, etc, etc - then I don't think there's a ethical leg for anyone to stand on regarding the Constitutionality of the action and, thus, the requirement for commissioned officers to uphold this new change.  Laws and a SCOTUS determination are different, IMO.  Since they can be changed or interpreted differently depending on the whims at the time.  A bit of the ol' civil disobedience can be called for.  By me and other retirees or civilians.  Uniformed personnel will have to decide if it's a "lawful" order or not.

Doesn't mean I'd willingly comply.  Another tragic boating accident for my stuff in the Colorado River.

Such an amendment won't happen.  Too many people are supportive of the Second and too many are apathetic so the large-scale support needed won't happen.

And such an act opens a very large can of worms as to what other Rights need 'fixing.'

 

[Kiloalpha]

1 hour ago, brickhistory said:

Such an amendment won't happen.  Too many people are supportive of the Second and too many are apathetic so the large-scale support needed won't happen.

And such an act opens a very large can of worms as to what other Rights need 'fixing.'

Yep. This is my rationale as to why we shouldn't pursue an Article 5 convention. Once you open that up... It's a pandora's box. There's nothing to stop random and punitive amendments from being created.

[Clark Griswold]

3 hours ago, Kiloalpha said:

Yep. This is my rationale as to why we shouldn't pursue an Article 5 convention. Once you open that up... It's a pandora's box. There's nothing to stop random and punitive amendments from being created.

Agreed - the crazies from both sides would come out of the woodwork with the probability of unforeseen forays into lunacy high

I would like to see reform but without the Constitution put at risk, for all its quirks and problems it is still the best house of cards to keep a large and diverse nation together.

 

Edited August 23, 2016 by Clark Griswold

[matmacwc]

We don't, and we shouldn't.