an eight year prison sentence. Dennis Cauchon, Trapped by the Law, USA Today, July 6, 1992.

Federal firearms laws should be revised to specify that "use" of a gun in a crime means use of the gun for its purpose as a weapon, and not incidental use. In addition, the mandatory sentence laws for felons in possession should be altered to allow, but not require, the imposition of the 15 year sentence, based on all the facts of the case. The Bill Keagles of the world are different from active violent criminals, and federal statutes ought to recognize the difference. For the same reason, proposals to restrict bail for all cases involving felons in possession may create injustices. E.g., S 735, § 731.

128. Jacob Sullum, “B.A.T.F. Out of Hell," Reason, May 1994, p. 25.

129. Sixty Minutes (CBS television broadcast, May 23, 1993).

130. Sixty Minutes (CBS television broadcast, Jan. 10, 1993).

131. Stephen Labaton, "Saved from Extinction, Agency Faces New Peril," N.Y. Times, Mar. 4, 1993.

132. U.S. News & World Report, Mar. 15, 1993.

133. Michael D. Bradbury, District Attorney, Report on the Death of Donald Scott (Off. of the D.A., Ventura County, Calif., 1993).

134. The discussion about the Posse Comitutus Act is based in part on testimony which the author delivered, in conjunction with Dr. Stephen P. Halbrook, at Congressional hearings in October 1994. Much of the testimony was based on Dr. Halbrook's article "Military Enforcement of the Drug Laws," in K. & E. Zeese, Drug Law (N.Y.: Clark Boardman, Callahan, 1993), and is used with his permission.

135. Like the FBI, the Army infiltrated antiwar groups in the 1970s and kept dossiers on opponents of the war. "Congress not Ready to Alter Law Banning Police Role for Military," Crime Control Digest, May 5, 1995, p. 3 (quoting Lawrence Korb, a Pentagon personnel chief during the Reagan administration)

136. H.R. 896, § 101(f); S. 735, § 102(f).

137. "Violations of this section shall be investigated by the Attorney General. Assistance may be requested from any Federal, State or local agency, including the Army, Navy, and Air Force, any statute, rule, or regulation to the contrary notwithstanding." Id.

138. 18 U.S.C. § 1385, as amended.

139. 466 U.S. 170 (1984). Several state supreme courts have rejected Oliver and found that under a state bill of rights guarantee, trespass is an illegal search. E.g., People v. Scott, 1992 N.Y. Lexis 40 (N.Y. 1992); State v. Myrick, 102 Wash. 2d 506, 688 P.2d 151 (1984); State v. Dixon, 307 Or. 195, 766 P.2d 1015 (1988); State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991), companion case State v. Chester, 587 A.2d 1008 (Vt. 1991). Guard trespass in such states would be illegal unless the Guard unit is federalized.

140. 10 U.S.C. §§ 331 et seq.

141. House Judiciary Comm., H.R. Rep. No. 97-71 [to accompany H.R. 3519] 6– 7 (June 12, 1981).

152. Wrynn v. United States, 200 F. Supp. 457, 465 (E.D.N.Y. 1961) (Air Force participation in execution of law wrongful, but not cause of injury under Federal Tort Claims Act).

153. 408 U.S. 1, 15–16 (1972).

154. 776 F.2d 1384, 1385 (8th Cir. 1985), ahered to on rehearing, 788 F.2d 494 (1987), aff'd Haig v, Bissonette, 485 U.S. 264 (1988).

155. 490 F.2d at 374 n.2.

156 Id. at 375 (emphasis added).

157. Earl Warren, "The Bill of Rights and the Military," 37 N.Y.U.L.R. 181, 184 (1962).

158. The National Guard is subject to the Posse Comitatus Act when "federalized" into the military service, because then it is part of the Armed Forces and has no state militia character. Perpich v. Department of Defense, 110 S.Ct. 2418, 2424-25 (1990) (also finding that the reserve militia includes all able-bodied citizens). But the Act does not restrict use of the Guard for law enforcement when in state militia

status. And yet federal dominance over the Guard (see 10 U.S.C. § 101(10) & (11); §§ 332 & 333; and Title 32) and its select character, in contrast to the unorganized militia of all able-bodied males, (10 U.S.C. §311 and most state codes) undermines its claim to be the militia envisioned by the framers of the U.S. Constitution in Article I, §8. See S. Ambrose, "The Armed Forces and Civil Disorder," in The Military and American Society 241, 245 (1972); United States v. Miller, 307 U.S. 174, 179 (1939) ("the Militia comprised all males physically capable of acting in concert for the common defense. These men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time").

The excuse that the National Guard, in its state incarnation, is not the equivalent to the federal standing army hinges mostly on legal fictions. At all times, the National Guard uses military equipment supplied by the federal government. Guard members follow a course of training prescribed by the federal, not the state governments. If there are ever conflicts between the President's preferences and a Governor's preferences for use or deployment of the Guard, the President always wins. 159. 5 Cong. Rec. 2112, 44th Cong., 2d Sess., pt. 1 (Mar. 2, 1877).

160. Id. at 2117, citing 92 U.S. 542, 556 (1876).

161. 6 Cong. Rec. 287, 45th Cong., 1st Sess., pt. 1 (Nov. 8, 1877).

162. Id. at 294.

163. Id. at 295.

164. Id. at 296.

165. Id. at 297.

166. Id. at 298.

167. Id. at 307 (Nov. 9, 1877).

168. Id.

169. Id. at 322.

170. Ex parte Bain, 121 u.s. 1, 12 (1887).

171. 7 Cong. Rec. 3579, 45th Cong., 2d Sess. (May 20, 1878).

172. The quotes are from debates in the Virginia convention. The standard source for convention debates today remains J. Elliot, Debates in the Several State Conventions (Philadelphia: 1836), and any scholar familiar with this source knows that anti-standing army sentiment was fairly unanimous.

173. 7 Cong. Rec. at 3579.

174. Id. at 3579.

175. Id.

176. Id. at 3586. (For later versions, see id. at 3845, 4686.)

177. Id. at 3848 (May 27, 1878).

178. Id. at 3849.

179. Id.

180. Id. at 3850.

181. Id. at 4240 (June 7, 1878).

182. Id.

183. Id. at 4242 (Senator Edmunds).

184. Id. at 4243.

185. Id.

186. Id. at 4245.

187. Id. at 4246.

188. E.g., R. Meade, Patrick Henry 50-53 (1969).

189. See. R.H. Lee, Additional Letters from the Federal Farmer 53, 169–70 (Philadelphia 1788).

190. 608 F.Supp. 945 (N.D. Ca. 1985), aff'd 796 F.2d 276 (9th Cir. 1985), related case 112 F.R.D. 120 (N.D.Ca. 1986) (appointment of special master to monitor government's compliance with injunction), aff'd. 828 F.2d 536 (9th Cir. 1987).

191. 608 F.Supp. at 950.

192. Id. at 950-52.

193. Id. at 953.

194. U.S. Dist. Ct.-N.D.Ca., No. C-90228 FMS, Order on Defendants' Motions to Dismiss (Dec. 20, 1991).

195. Slip Op. at 34-36.

196. Id. at 38-47.

197. Sue Anne Pressley, Wash. Post, May 5, 1993, at A17.

198. Newsweek, May 19, 1993.

199. Defense Rests without Calling Cultists, supra note XXX. 200. Pate, What the Feds, supra note XXX, at 101-102.

201. U.S. Const., Art. I, §8.

202. Contrast, for example, the Court's 1915 opinion upholding the Harrison Act (controlling opiates), in which the court, expressing "grave doubt as to its constitutionality," construed the Act "as a revenue measure" in order to uphold it, with the

court's opinion six years later in a drug prohibition case, in which the court asserted without support that congressional power to prohibit dangerous drugs "is too firmly established to be called into question." United States v. Moy, 241 U.A. 394, 394 (1915); Whipple v. Martinson, 256 U.S. 41, 45 (1921). Most of the court's criminal jurisprudence since 1921 has, unfortunately, followed Whipple's vacuous approaching of implicitly assuming a general congressional power to create criminal law, as some sort of penumbra from other congressional powers. The effect, of course, is to undermine the Constitutional system of granting Congress only limited, enumerated powers, rather than authority to legislate at large.

O