A Case Of Treason

March 25, 2021 | Civil Liberties, Congress, Constitution, Founding Documents, Militia, Sovereignty

by Nicholas Testaccio

The charge of Treason has been bandied about for some time now in light of government infringing on the right to keep and bear arms. After years of listening to the charge cast, I have decided to examine the issue in order to ascertain whether I could make the case beyond a reasonable doubt.

Article III, § 3, Cl. 1 – “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.”

The Constitution is clear as to how such an indictment might come about. To start I must ask the following questions:

1. Is there someone, entity, agency, or organization engaged in “levying War” against the United States?
2. Does war include covert acts, propaganda, sabotage, and acts subverting our ability to wage a war and defense of the nation?
3. Is there someone, entity, agency, or organization who “in adhering to their Enemies, [is] giving them Aid and Comfort”?
4. Considering the unique form of government in the United States, do the definitions of “levying War”, “Aid and Comfort” expand the criteria by function and implication of our law?
5. Does disarming “the body of the people” rise to the level of treason?

In his commentaries, William Blackstone wrote, “Treason, proditio, in it’s very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, *** This is looked upon as proceeding from the same principle of treachery in private life, as would have urged him who harbours it to have conspired in public against his liege lord and sovereign: *** [W]hen disloyalty so rears it’s crest, as to attack even majesty itself, it is called by way of eminent distinction high treason, alta proditio”.

Sir Michael Foster, Discourse on High Treason. “High Treason being an Offence committed against the Duty of Allegiance, it may be proper before I proceed to the several Species of that Offence which will be the Subject of this Discourse, to consider From whom, and To whom Allegiance is due.” Foster goes on to explain that “Natural Allegiance is founded in the Relation every Man standeth in to the Crown considered as the Head of that Society whereof He is born a Member”.

Foster wrote his Discourse in 1762, a time when monarchs ruled, and the not yet formed United States was nothing more than a hope and dream of a few who wished to throw off the bonds of  allegiance to royalty. Someone who came to power in birth under the divine right of kings. Those who claimed the loyalty of the people simply by being born into the right family.

In 1776 a new nation was formed with the unique concept “That all men are created equal, That they are endowed by their Creator with certain unalienable rights, *** That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.”. Within those words are the construct of a government of, by, and for the People. It was an idea so novel as to foster a revolution here and in nations so inspired by our Declaration. Sadly, in today’s world, the principle of the rule of law for this nation has died through years of judicial and legislative twists that “evinces a design to reduce [us] under absolute Despotism”. Be that as it may, this country remains, in the rule of law, a Nation “constructed on the principle that the Supreme Power resides in the body of the people”.– Chisholm v Georgia 2 U.S. 419, 457

The United States Constitution requires an oath of allegiance that we have assigned to every officer, from dog catcher, to jurist, to representative, to the president. In so doing we bind those public officials, and ourselves to adhere to the powers and restrictions laid out in the Constitution. The contract and the rule are pointless if both parties avoid and deny the force of law as it was laid out in plain language.

That “the Supreme Power” be the doctrine of this nation, it is only logical that the people constructed the State, and therefore the central government subordinate to the State. In 1776 when the Colonies “dissolve[d] the political bands” with England, they created a unique nation in law by vesting authority in the People who would be the caretakers of their freedom, rights, and liberty.  The first act of the Continental Congress was to lay out the doctrine of law, by which all law is to follow the fundamental principal that “Governments are instituted among Men, deriving their just powers from the consent of the governed”.

In simplest terms, this is a nation based on popular sovereignty. Everyone owes allegiance to the Constitution created by “We the People”. The sovereign, in international law, claims the right to prosecute, to defend, to wage war, and ultimately to control all that is within his/her sphere of influence. As a sovereign, I do not consent to any “statute *** extending beyond those matters which it was within the constitutional power of the legislature to reach.”. – McCullough v. Commonwealth Of Virginia, 172 U.S. 102

While our form of government is unique throughout the world, it is nonetheless a fact of law instituted and defined in our first two documents of Law: The Declaration, and the Constitution. They clearly establish that in our nation, “Sovereignty, is of course, not subject to the law, for it is the author and source of the law, but in our system, while sovereign powers are delegated to agencies of government, sovereignty itself, remains with the people, by whom and for whom all government exists and acts.”. – Yick Wo v Hopkins, 118 U.S. 356

To protect and defend the principle function of a nation so fashioned in the matter that “the Supreme Power resides in the body of the people” there must be a method for caretaking. Of course, it should seem logical that a branch of government controlled by “the body of the people” is the most applicable method. Reason, backed by the historical record, would dictate that those assigned limited delegated authority may very well step beyond the bounds of their duties, and inevitably seek to seize power not granted. So, by logic this government must be formed in such a manner as to rest all power of the “Sword” in the hands of the people so that they may be the ultimate protector of home and heartland. In doing so, they maintain their sovereignty, their rights, and their freedom.

The means by which to secure all the principles of liberty was not a novelty to the Framers of the Constitution. It functioned for years prior to the revolution as the Militia, in which able-bodied men capable of bearing arms were the natural protection from insurrection and invasion, with the duty to enforce the law.

Each State in this Union is a free State, wherein the people are, in theory, the protectors of all their natural rights, and so the supreme authority over public officials. It cannot function in any other manner; else it would give control to those bent on usurping the power of their constituents. As Alexander Hamilton wrote, “To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master”.

Sir Michael Foster states “High Treason being an Offence committed against the Duty of Allegiance”. At that time, allegiance was ‘to the Crown”. However, in the United States where the foundation of the rule of law comes about from the people who are sovereign, then allegiance is owed to the people who are “the author and source of the law”. This is the logical conclusion taken from our founding documents, to construction, to the writings of our Founders, and to decisions in our courts.

18 U.S.C § 2381 – Treason “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned…”

Is there someone, entity, agency, or organization engaged in “levying War” against the United States? Many, is the simplest answer.

The Constitution of the United States enumerates several powers and restrictions. It is “the supreme Law of the Land” requiring that “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation”. What it does not allow for is any government entity to create agencies that can draw the “Sword” against the People. The Constitution specifically empowers “The Militia which the States were expected to maintain and train” as the only agency with the authority “to execute the Laws of the Union”, and for the purpose of the question imposed herein “repel Invasions”.

It is the Militia, the body of the People, that is the lawfully recognized instrument to fulfill the tasks commanded by the Constitution. Therefore, agents lacking such power, going afield to disarm the constitutional body, are in fact “levying War”. Since it is the People themselves who by their construction of and adoption of the  Constitution gave the Militia a power that supersedes any agency of government, then this is where allegiance must lie and be enforced. As noted “Treason being an Offence committed against the Duty of Allegiance”, the question of any agency going afield to carry out such disarmament commits the crime of “Treason”.

Does war include covert acts, propaganda, sabotage, and acts subverting the ability to wage a war and defense of the nation? Primary tactics in war include the destruction of armories, ammo depot’s, and manufacturing. Those tactics have been employed by our representatives and organizations for years.

In order for the constitutional Militia, “civilians primarily, soldiers on occasion”, to function “when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time”, (U.S. v Miller 307 U.S. 174),the free flow of weapons in common use, and ammunition must be available through unencumbered trade. The people must have the ability to purchase and employ those weapons in common use for “soldiers”, which are the M16 rifle and the M4 carbine with standard magazines of 30 rounds at this time.  

“The Militia of the several States” is a constitutional power. This is not debatable. It must function as a recognized authority as institutionalized under the lawful guidance laid out in the Militia Acts and statutes. It is defined in law as all able-bodied men capable of bearing arms, but not restricted, and certainly not in times of emergency.  

How do we comply with the commands of the Constitution, in the case of “repel[ing] Invasions” if we cannot arm ourselves, and we are not properly trained to make use of those arms? If there are those who are working to guarantee that we cannot access the arms that would be critical in the defense of the nation they are waging war against the people and therefore the United States. The restrictions laid out, and the seditious acts to fully restrict can only be labeled as “Treason”. 

Is there someone, entity, agency, or organization who “in adhering to their Enemies, [is] giving them Aid and Comfort”? Many.

Mother’s Demand Action, and Everytown are just two organizations that are working tirelessly to disarm the American people who are “the unorganized militia”. There are others who are indeed subversively acting to limit the ability of the people to have access to weapons that would be needed in defense of the Homeland. For purposes of this article, lets focus on some remarkably simple facts and doctrines of law.

Under the delegated authority that we granted to Congress is the duty “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”. The authority is specific, Congress can organize, arm, and discipline the Militia. It has only that authority “We the People” granted. It does not have the power to tell the body of the people that it must be unorganized, disarmed, and in disarray if a national emergency should arise. Nor can congress place “Troops *** of War” over the civil authority that comprises the militia.

What this government has done with the help of its myrmidons in the media, and traitorous organizations is to distort the definition and function of Militia to usurp the lawful authority clearly enumerated in the Constitution.

In comprehending the parameters of treason, “Aid and Comfort” to our enemies abound. Consider that in WWII, the United States was able to produce an armada of ships, tanks, airplanes, and weapons in enough quantities to supply itself and two-thirds of the equipment needed by its allies. Today, we have sold enough sensitive military technology to the Chinese that they are able to build systems beyond what we produce. Here, the U.S. government has hindered the means to produce weapons systems by banning raw materials, closing smelting facilities, regulating, and taxing, out of existence, just about everything necessary for a sustained war effort. With this new administration moving back to the Paris Accords on Global warming, we will be further restricting our ability to produce while China and Russia go full bore.

Considering the unique form of government in the United States, do the definitions of “levying War”, “Aid and Comfort” expand the criteria by function and implication of our law? Without a doubt!

This is a nation based on popular sovereignty, wherein “the Supreme Power resides in the body of the people”. In as much as the disarming of the instrument “necessary to the security of a free State” would jeopardize its very existence, any act to disarm Militia can only be seen as “levying War”. Sending agents into the field to physically disarm the people who have a right to keep and bear arms for the purpose of maintaining a free State and “repel[ing] Invasions” can only be seen as an act of war waged against the sovereignty and the allegiance held.

There are additional aspects to disarming the land-force that our law holds responsible for “repel[ing] Invasions”. Our enemies around the world are enhancing every aspect of their offensive and defensive capabilities. While the Russian’s and the Chinese are building new missile systems, and creating “super soldiers”, our commander-in-chief, along with our “woke military” are working on diversity and flight suits for pregnant women.

The military disparity arising between the U.S. and its enemies cannot be ignored. The Russian’s and the Chinese are not creating and augmenting their military because they do not believe in the possibility of war, they are preparing for war, and perhaps the initiation of such hostilities.

While they are on the move, the U.S. government, and its nefarious allies, to name just a couple, Mother’s Demand Action and Everytown, are diligently working to make sure that we will have no fight left in us to defend the homeland.

When considering the dynamics of war, in light of what Russia and China are now building, we must also realize that they can muster an army that could be three times the size of ours. However, they would consider that behind every blade of grass is a rifle. That was indeed an intent of the Founders of this nation when they recognized Militia as the first line, and possibly the primary means for the American people to “repel Invasions”. Guerilla warfare is intense and indeed exhausting for invading armies. Afghanistan has proved that time and again, and they lacked the resources that the American people maintained.

Does disarming “the body of the people” rise to the level of treason? This question came before the Supreme Court and is a matter of precedent.

As early as 1807 came before Chief Justice John Marshall the case of treason by Bollman and Swartwout. In his ruling the Chief Justice wrote “To complete the crime of levying war *** there must be an actual assemblage of men for the purpose of executing a treasonable design.”. Ex Parte Bollman 8 U.S. 75. Sending men or women afield to disarm the people by force “evinces a design to reduce them under absolute Despotism” that would certainly “amount to levying of war”.

Under the direction of Congress creating acts in direct violation of its delegated authority, armed agents “a body of people conspire and meditate an insurrection to resist or oppose the execution of any statute of the United States by force, they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war, and the quantum of the force employed neither lessens nor increases the crime”.

Justice Marshall, quoting Justice Chase from the John Fries Trials, speaks of an “insurrection to resist or oppose”. How do we interpose his ruling with “the Duty of Allegiance” defined by Sir Michael Foster in his “Discourse on High Treason”?

I repeat as to what is “the Supreme Law of the Land”; “To provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel Invasions”. By oath to the Constitution, we are pledging an allegiance to our doctrine and rule of law. Attack on, or subversion of that allegiance would amount to “insurrection[]”, and when such acts by force take place it is, by law, history, and precedent “Treason”.

Calling forth the militia “to repel Invasions” is an affirmative act commanded by the Constitution. To send forth armed government agents “to resist or oppose” a constitutionally recognized authority and render them incapable of performing the high duty “to repel Invasions”, which would protect and defend “the security of a free State” is also an affirmative act. Can this be looked at in any other way as “to give aid and comfort” to an invading army? Who could defend such actions, particularly given the constitutional requirements?

The doctrine of law for this nation was established by our first law, The Declaration. This guides us to our understanding of treason from the perspective of rights and sovereignty. Our rights, as it is intoned, come from our Creator whether you believe in God, or the Universe as the author of all that lives. With that comes a point of governance that is unique. We do not bow to a sovereign placed on a throne, nor a president we select to do our bidding. The bidding that we established in a written contract. By that Law we do not prostrate ourselves before any “public official” that we have hired to abide the parameters of power that we have established. “We the People”  have instituted a Nation “constructed on the principle that the Supreme Power resides in the body of the people”, and with that “sovereignty”.

“Sovereignty *** is the author and source of the law”, and therefore claims and expects “allegiance” to the rule that we have created, not to acts “contrary to the tenor *** under which they were created”. One sovereign cannot impose its will upon another. In the case of the people of this nation, to attempt such an imposition by use of any force that invades the space and security of another is by all standards of law an act of war. 

Are agents of government going about armed and then in their actions disarming Americans of weapons “in common use”? Yes and Yes.

Are those agents acting under legislation “contrary to the tenor of the commission under which it is exercised?”. This particular question melds the legislators, the agents, and unfortunately the people into one contradictory force to the Constitution. The Constitution is clear, and while those in public service deny, distort, and violate its tenets, it is the people who themselves disparage the rule of law by allowing acts of treason to occur under their noses. Whether it is a clinging to ambivalence or ignorance, amid the act, there is nonetheless an obvious crime.

The scope of the Constitution sets out clearly defined Powers granted, and Powers denied. Within the powers stated there are delegated authorities, but only one specific power to execute or deter the acts of those who represent our rules. That authority rests solely in the hands of the constitutional Militia.

The arguments, or should I say myths and propaganda surrounding Militia today come from both sides. For the most part, neither side has a working knowledge of the institution. For the purpose of determining the crime of treason, we must consider the confounding claims made against an organized or unorganized Militia.

Congress has, by violation of their oath of office, extended their authority beyond that which is delegated by the Constitution, to wit, “The Congress shall have the Power *** To provide for organizing, arming, and disciplining, the Militia”. That delegated authority bars congress from un-organizing, disarming, or leaving the Militia untrained. This is not debatable. Congress may not act “contrary to the tenor of the commission”, which is to organize, arm, and discipline. Nor can congress redefine, disband, or render the institution impotent in face of defined law.

When such acts take place, it is only right and reasonable to conclude that the proper authority must use the force of law, and when that law is confounded by disregarding the rules, to which we are all bound, then the people must enforce their sovereignty. How do we do that if we are disarmed, if our “redress” is denied, and armed government agents are given a path to render the body of the people slaves to acts beyond the scope of the State?

“Treason” abounds, and it is not as if it is invisible to the public. It is right before our eyes, and the question then becomes, will we revitalize our Power?