Chapter 3: Colonial Adoption of English Militiary and Politicao-Military Practices, 1607-1689
Chapter 4: Imperial Reform of the Colonial Militias, 1674-1721
Chapter 5: Arms Bearing, Military Obligation, and Legislative Control of the Colonial Militia, 1721-1775
The Second Amendment to the Federal Constitution on 1787
guaranteed to American citizens the right to keep and bear arms
and the right to maintain the institution of the militia. James
Madison introduced the amendment in the new Congress as part of
the Bill of Rights in June [386] 1789. His proposal, quoted at
the head of the chapter, reflected the many amendments submitted
by the states for inclusion in the list of guarantees, as well as
his own views of the subject. Antifederalists had been
dissatisfied with three aspects of the military provisions of the
Constitution. Some feared that the nationalists who would
probably dominate the new government would impose heavy military
obligation on the citizens of the states, especially martial law
in peacetime, and thus introduce military despotism. Others
argued that Congress, like James II, might neglect the militia,
or define military obligation so narrowly that the majority of
citizens would be disarmed and forbidden to train and that the
federal standing army would be justified. Most commonly,
Antifederalists complained that federal power to tax and to
control the militia eliminated two major attributes of
sovereignty from the state legislatures, and thereby from the
people. Such federal authority they feared would destroy the
states by upsetting the theoretical balance between popular or
legislative power and the power of the executive. They equate
the former with the states and the latter with the federal
government. Their insistence upon the right to keep and bear
arms and the militia therefore sought to perpetuate the
sovereignty of the states as the collective will of the people,
to prevent disarming even if Congress redefined military
obligation, to guarantee the right of collective military service
to guard against the standing army, and to limit the use of
martial law to prevent abuse. The first three points comprise
the Second Amendment; the last is part of the Fifth
Amendment.[387]
To many Federalists these arguments were reactionary and contrary
to the development of a strong political union. In fact,
Antifederalist notions of political balance and sovereignty were
anachronistic and irrelevant to the new constitutional system.
Since 1776 the very basis of political understanding had been
transformed. Fundamental changes had affected the concepts of
sovereignty, representation, and balance. Antifederalists clung
to the traditional tripartite division of political authority
(democracy, aristocracy, monarchy). They failed o recognize the
basic assumption of the Constitution, that all power rested
ultimately in the people and that the people could delegate
portions of their sovereignty to state and to federal government.
Antifederalists fears of the loss of the states were based on the
axiom that sovereignty could not be divided; therefore, power
granted to the federal government were permanently alienated from
the states. Under the theory of people "as constituent power,"
however, sovereignty could be shared. The states would not
disappear but would retain significant power of internal
administration. Militia might continue to balance the army in
practical terms, but constitutionally the federal government
controlled both and could reform them to meet national needs.
Finally, given national responsibility for national defense, the
redefinition of sovereignty, and the representation of the people
in Congress, the necessity and legitimacy of medieval
restrictions on militia service vanished.(5)
Antifederalist arguments, regardless of their theoretical
irrelevance, were based upon historical experience and estimates
of the goals of the Federalists. Since one function of any
government was to protect individual rights, and since government
could exist only with the [388] political and military support of
the people, the Antifederalists perceived that a threat to either
partner in this relationship threatened the whole. To deny
citizens the classical Jus Militiae, the right of military
service, sapped the strength of the state. To disarm or neglect
the militia destroyed military potential. Equally serious were
attempts to eliminate state military authority, whether in
defining military obligation and geographical limits of service
or in specifying organization, arming, and training requirements.
Since the end of the War of Independence, Federalists had given
Antifederalists much to make them apprehensive for the militia.
Congressional committees, generals, and executive officers had
made sweeping proposals to reform the militia and to bring it
securely under national control. Nationalists at the
Philadelphia convention had made their position clear. The
militia must be controlled by Congress. To a large degree, their
plan succeeded but not without a fight. Elbridge Gerry and
George Mason and others had prevented the complete elimination of
state power by reserving to the states the selection of officers
and the actual enforcement of the training obligation.
Federalists considered this compromise a betrayal and an obstacle
to effective reform. Antifederalist considered it insufficient to
prevent federal domination. In this context, the Constitution
came before the states for ratification. Opponents criticized
virtually every provision; the almost unlimited power of
taxation, the authority to raise and support armies, and the
power over the militia seemed to presage the destruction of the
state governments and the liberties of the people.
Antifederalists sought by argument and [389, inverted with 390 in
original] amendment to retrieve power over the militia in order
to protect themselves from federal and military oppression.
In Pennsylvania, the scene of the first intensive confrontation,
James Wilson set the scope of nationalist arguments. In October
1787 he told his audience that an army was necessary to the
government. "No man, who regards the dignity and safety of this
country, can deny the necessity of a military force, under the
control and with the restrictions which the new Constitution
provides." Even in times of peace, he argued, no nation "has not
found it necessary and useful to maintain the appearance of
strength" which only an army could provide. An army might prove
expensive, observed Anthony Wayne in December, but "the expenses
of a standing army, are nothing to the present expense of the
militia." Besides, argued others, the Massachusetts militia had
failed to suppress Shays' Rebellion. Therefore the militia
required national control. "Men without an uniformity of arms,
accoutrements, and discipline," another Federalist declared, "are
no more than a mob in a camp; ... in the field, instead of
assisting, they interfere with one another." In the final
analysis, a good, effective militia might even "supersede the
necessity of raising, or keeping up, standing armies" and really
become the "bulwark of internal strength" which the Commonwealth
ideology had so long claimed.(6)
In the following months nationalists elsewhere reiterated,
embellished, and added to these arguments. Oliver Ellsworth in
Connecticut asked "if ever there were a government without the
power of the sword and the purse?" Congress, unlike Parliament,
consisted of "men appointed by yourselves, and dependent upon
yourselves." To deny them [390, inverted with 389 in original]
these twin powers amounted to "cutting a man in two in the
middle, to prevent his hurting himself." Ellsworth also pointed
out a major inconsistency in the arguments of the
Antifederalists.
One hour you sported the opinion that Congress, afraid of the
militia resisting their measures, would neither arm nor organize
them, and the next ... that they would harass them by long and
unnecessary marches, till they wore down their spirit and
rendered them fit subjects for despotism.
Archibald Maclaine in North Carolina made a similarly telling
blow to the Antifederalists, If they feared federal military
despotism, why were they
not as much afraid of our state legislature; for they have much
more power than we are proposing to give this general government.
They have unlimited control over the purse and the sword; yet no
complaints are made....the idea of the militia being made use of,
as an instrument to destroy our liberties, is almost too absurd
to merit a refutation.(7)
Yet the Antifederalists did fear, sometimes with convincing
historical experiences to support their case. Both Cromwell and
Charles II, as described in Chapters One and Two, used the
militia as a police force to crush resistance, to disarm
potential rebels, and to enforce royal order as well as
Parliamentary statute. A militia could thus be used quite
effectively "to destroy our liberties" if it were properly
composed, commanded, and controlled. This militia of the Major
Generals and of the Restoration, of course, differed from the
American model. It had contained few men in relation to the
adult male population; it received public pay, used public arms,
served virtually at call; and it was commanded by officers
thoroughly loyal to Protector or King. Washington, Knox,
Steuben, and the Hamilton committee members, all [391]
Federalists in 1787, had advocated a national militia under
federal control whose elite corps was composed of men in public
pay, using public arms, serving at call, and commanded by men who
owed their allegiance and loyalty to the national government.
The parallels did not escape the Antifederalists. Little wonder
that Federalists played down militia reform during the
ratification process. Enough memory and suggestions of the
reform proposals of earlier years remained, however, to give
relevance to Antifederalist criticism. In October 1787 a
Pennsylvanian accused the nationalists of imposing of the nation
"a Prussian militia." Timothy Pickering, a Federalist, had
indeed published a plan of militia training in 1775 which had
praised the Prussian system of exercise, had implied that the
English reformed militia had adopted that system after 1757, and
had proposed that the American militias make use of a simplified
version of it. Alexander Hamilton and others, in seeking to ally
fears that Congress would impose heavy military obligations on
all adult males who made up the existing state militias, played
upon the other fears of an oppressive militia. "There must be a
select corps," he told the New York ratifying convention in July
1788; "the whole people can never be fully trained." Even George
Mason in his opposition to comprehensive federal control of the
militia advocated the federal use of a select corps to fulfill
the constitutional functions of the whole militia.(8)
Richard Henry Lee in Virginia objected to the reform proposals
because Congress might use its power of taxation and of
"modelling the militia" to deprive the states of their political
strength.
Should one fifth or one eighth part of the men capable of
bearing arms [he wrote in October 1781], be made a select
militia, as has been proposed, and those the young and
ardent part of the community, possessed of but little or no
property, and all others put upon a plan that will render
them of no importance, the former will answer all the
purposes of an army, while the latter will be defenceless.
The Antifederalists minority at the Pennsylvania Convention also
recognized that "a select corps...will best answer the purposes
of government." With the officers of the militia, whether select
or reserve corps, constitutionally required by oath to uphold the
Federal Constitution, little remained in the way of national
dominance of the militia. John Smilie in Pennsylvania tied the
concepts of militia and arms together. "When a select corps is
formed," he declared, "the people in general may be disarmed."(9)
Given the Federalist proposals for creating a select corps and
Antifederalist fears that this new "militia" might be used
against them, the other Antifederalist arguments fall into place.
The apparent inconsistency hung only upon a definition. What was
the militia? George Mason at one point, in good colonial and
ideological tradition, declared that the "militia ...consist now
of the whole people, except a few public officers." Federalists
treated the militia as those men actually in training and
prepared for war, a select corps of about 10,000 and certainly
fewer than 50,000 men. When the Antifederalists often accepted
the more restrictive definition, the Federalists traded positions
and attacked their arguments with ridicule. By substituting
"select corps" for "militia" in many of their debates, however,
the absurdness disappears if obvious rhetorical exaggeration is
ignored.(10)[393]
Antifederalists claimed that the government might impose
excessive military obligation and discipline on the "militia."
Samuel Bryan informed fellow Pennsylvanians in November 1787 that
the Constitution allowed Congress to "subject the citizens of
these States to the most arbitrary military discipline: even
death may be inflicted on the disobedient." In the "character of
militia," therefore, citizens "may be made as mere machines as
Prussian soldiers." A select corps, argued in Pennsylvania
minority, would be most liable to fines being "levied in a
military manner," to "corporal punishments of the most
disgraceful and humiliating kind, and to death itself, by the
sentence of a court martial." Luther Martin, a leading Maryland
Antifederalist who had briefly attended the Philadelphia
Convention, exaggerated his claim that Congress might subvert
state power by "call[ing] out the whole of its militia, without
regard to religious scruples, or any other consideration,"
keeping the men in service "as long as it pleases, thereby
subjecting the freemen of the whole state to martial law and
reduce them to the situation of slaves." "Nor is the suggestion
unreasonable," he observed, "that the government might improperly
oppress and harass the militia," simply "to reconcile them to the
idea of regular troops."(11)
On the other hand, and for the same motive of introducing a
standing army, the federal government might neglect the militia.
In this case "militia" referred both to the "whole people" and to
the select corps, depending upon the direction of the argument.
Neglect of organizing and training militiamen meant a collapse of
the state military power. Neglect of arming meant a loss of
military potential. Luther Martin again provided a key
argument:[394]
When a government wishes to deprive its citizens of freedom
[he told the Maryland legislature], and reduce them to
slavery, it generally makes use of a standing army for that
purpose, and leaves the militia in a situation as
contemptible as possible, lest they might oppose its
arbitrary designs.
The powers which the Constitution placed in Congress over the
militia, he noted, "enable it to leave the militia totally
unorganized, undisciplined, and even to disarm them." The
citizens themselves, "so far from complaining of this neglect,"
would accept it to escape "the burden of militia duties." Thus
excessive obligation and institutional neglect went hand in had
to destroy popular military power. Patrick Henry added the final
point. The power to arm implied the power to disarm. If the
traditional common law requirement for militiamen to find their
own weapons were abandoned in favor of the use of federally-
supplied ones, the result would be dangerous to the states. "Of
what service would militia be to you, when, most probably, you
will not have a single musket in the state?" asked Henry, "for,
as arms are to be provided by Congress, they may or may not
furnish them."(12)
At the base of these objections, Antifederalists feared the loss
of state sovereignty. Sovereignty in this sense differed in
degree from the view expressed by Thomas Jefferson and James
Madison in the Virginia and Kentucky Resolutions in 1798 that the
states acted as guarantors of the liberty of citizens against
federal encroachment. Unlike nineteenth-century States Rights
advocates who wished the states to have ultimate power to block
federal actions not in their interests, Antifederalists in the
1780s emphasized the collective sovereignty of the people
expressed through their popularly elected state
legislatures.[395] Under most state constitutions, the governor
had little real authority in relation to the assembly, a
consequence and culmination of the quest for power which the
lower houses had pursued in the late colonial period. It was
this power which the Antifederalists sought to protect from
federal encroachment. Two major attributes of sovereignty were
endangered by the Federal Constitution, the power of taxation and
of the militia, the power of the purse and the power of the
sword. Congress had virtually no limit on its authority to tax
but had two significant limits on its militia authority. It
could not select militia officers or enforce training
regulations. But Congress could "provide for organizing, arming,
and disciplining the militia" and "for calling [it] forth" to
suppress insurrections, repel invasions, and significantly, to
enforce federal law. Both sets of powers seemed to
Antifederalists to presage the doom of state legislative power
and the states themselves.
Some Antifederalists foresaw the complete collapse of the states
as a result of their loss of essential powers. John Adams, in
Defense of the Constitutions, had provided them with the key
axiom: "The militia and sovereignty are inseparable." To Luther
Martin, the militia provided "the only defence and protection
which the States can have for the security of their rights
against arbitrary government of the general government." To take
militia power "away from the States," he warned, "ought to be
considered the last coup de grace to the State governments."
Richard Henry Lee reiterated this conclusion. "Unless the people
shall make some great exertions to restore" their power over
internal taxation, the militia, and exclusive court
jurisdiction,[396] he wrote, "the State governments must be
annihilated, or continue to exist for no purpose." Thomas
Tredwell asked the New York convention "What sovereignty, what
power is left to [the state] when the control of every source of
revenue, and the total command of the militia, are given to the
general government? That power which can command both the
property and the persons of the community, is the sovereign, and
the sole sovereign." The loss of power led to the loss of
liberty, the defense of which had been the primary function of
state government. Patrick Henry opposed ratification because the
Constitution had eliminated the means of defending our rights, or
of waging war against tyrants." "Have we the means of resisting
disciplined armies," he asked, "when our only defence, the
militia, is put into the hands of Congress."(13)
One Antifederalist argument which Federalists and military
historians have disparaged, that of marching the entire militia
out of the state to destroy liberty elsewhere, represented a very
real threat to state legislative sovereignty. During the late
colonial period the lower houses had successfully imposed the
medieval statutory restraints on using militia outside of the
bound of each colony without legislative consent. Under the
Federal Constitution Congress had the undefined power of "calling
for the militia," Thus negating an important military
restriction. Moreover, if "militia" in the Antifederalists
writing is interpreted as "select corps," the validity of their
arguments is clear. William Lenoir told the North Carolina
convention that Congress might march the "militia" to the
District of Columbia and keep it there for "life." While the
"whole people" could not be so [397] treated, North Carolina's
quota of a 10,000-man select corps might be, under army guards.
In fact, the whole corps could conceivably have been imprisoned
while the army, if properly motivated, might have overcome
opposition in the states. New York's "Cato" argued that "the
militia of the most remote state may be marched into those states
situated at the opposite extreme of the continent," or, as the
Pennsylvania minority warned, only into neighboring states "to
quell an insurrection occasioned by the most galling
oppression."(14)
[TOP]
[BOTTOM]
Federalists answered these objections both honestly and with
ridicule and political rhetoric. The most highly developed and
forceful arguments came from the pens of James Madison and
Alexander Hamilton directed toward ratification in New York.
Their Federalist papers had direct influence in New York and some
influence outside as a result of reprinting of their newspaper
writing. Hamilton represented the Federalism of strong central
government and ultimate consolidation of the states. Madison
emphasized the concurrent nature of governmental power, the
sharing of attributes of sovereignty delegated by the people
through the Constitution. Madison's opinions had the greater
force because of his participation in the Virginia ratifying
convention.(15)
On military power, Hamilton took a strongly nationalist and
functionalist position. An army was more appropriate and
necessary to national power, in his mind, because it was more
responsive than the militia to the needs of the federal
government in times of domestic unrest and foreign invasion. An
army was generally more reliable and more suitable to peacetime
garrison duty on the frontier, a major duty which the army
performed. A militia might be useful as a reserve force if [398]
under strong executive command and well armed and disciplined.
But, like Adam Smith, Hamilton rejected a large militia because
of the actual and hidden expense. To insist upon universal
training would "abridge the mass of the labor and industry to so
considerable an extent." as to be "unwise." It would also "be a
real grievance to the people, and a serious public inconvenience
and loss." Hamilton's observations in this vein were neither
polemical nor rhetorical. He, like the Antifederalists,
represented a legitimate tradition of thought on militia and
military power, drawing its inspiration from the process of
military and economic modernization affecting Europe, England,
and America. Antifederalist opposition to the idea of a select
corps, which Hamilton proposed, seem to have been based more on a
conservative and ideological base than on realistic consideration
of national defense. Throughout the colonial period, men had
evaded or ignored militia obligations. Only when their self-
interest was threatened, as on the Pennsylvania frontier, did
they respond. Hamilton sought to use self-interest to build an
army and a militia reserve, but he continually met the Country
opposition which emphasized virtue and duty rather than self-
interest. Thus, despite the seriousness of his concern for
military modernization, his arguments persuaded few
Antifederalists. The ideology of militia prevailed.(16)
Madison too presented serious arguments in favor of ratification.
Although he had been a member of Hamilton's committee on the
peace establishment in 1783, he did not argue for a select
militia but stressed the shared nature of sovereignty, and
consequently of military power. An "essential object" of the
union of states whether [399] under Constitution or Articles of
Confederation, and "one of the primitive objects of civil
society," he wrote, was national military authority. In this
Madison differed little from other Federalists. But to him, the
militia presented an important safeguard to states and people. A
nation with militia obligation covering half a million men could
easily defeat any army the federal government could afford. An
unarmed people, as in Europe, had no military potential, but an
armed citizenry, organized in militia units, and commanded by
state officers had an inherent potential for successful
resistance. Madison did not wish the states destroyed nor the
militia entirely in federal control.
Unlike Hamilton, Madison opposed depending upon a standing army.
Therefore, it had been proper for the Constitution to specify
that militia would enforce federal law. "The people," he told
the Virginia convention, "ought unquestionably to be employed to
suppress [insurrections] and repel [invasions], rather than a
standing army." Therefore, the militia had to be placed "on a
good and sure footing" under effective federal control.
The most effectual way to guard against a standing army [he
continued], is to render it unnecessary. The most effectual
way to render it unnecessary, is to give the general
government full power to call forth the militia, and exert
the whole natural strength of the union when necessary.[400]
The "most arbitrary despot," Madison wrote to answer the
Antifederalist objections to loss of medieval statutory
restraints, would not abuse the militia such as moving it
"unnecessarily to an immense distance" simply because these
actions would excite "the universal indignation of the people."
To allow the states to maintain the old restrictions would not
only "give them a pretext for substituting a standing army"
(which England had done when confronted by colonial restrictions)
but would also destroy national power and, in turn, the states.
Governments existed to protect citizens and their rights, not to
destroy them. Although every possibility of abuse could not be
eliminated, the Constitution had provided many safeguards, part
of which were the states themselves. In military as in many
other aspects of the Constitution, state and federal government
shared power and sovereignty concurrently. Congress did not have
exclusive power to train or arm the militia. If Congress failed
in its duty, nothing prevented the states from doing so. From
experience, however, the states themselves had often neglected in
"this most essential object" of enforcing the requirements for
militia arms.(18)
Had Madison presented his views earlier and on a more national
scale, his reassurances and logic might have swayed more
Antifederalists than they did in New York and Virginia. Had he
and the convention delegates drafted a bill of rights, the
ratification process would not have encountered so may
difficulties. The call for a declaration of rights became a
standard argument, and a number of states made their ratification
contingent upon adoption of a bill of rights.[401]
Antifederalist proposals for militia and arming amendments to the
Constitution and articles of the bill of rights reflect the
entire range of their objections to the Constitution. They also
provide a convenient summary and transition to the drafting of
the bill by Congress in 1789. All proposals for amendments to
the Constitution concerning militia are arms were drafted in a
military context. The right of "private self-defense," in John
Adam's words, did not appear. Many proposals sought to prohibit
or limit the size of standing armies, the traditional nemesis of
the militia. Virginia, for instance, suggested that a two-thirds
majority vote be required in Congress to raise a peacetime army.
Other proposals dealt with the militia. The Pennsylvania
Antifederalists proposed that the states retain power to
organized, arm and discipline the militia but would allow
Congress the authority to adopt training regulations.
Furthermore, Congress could not "call or march any of the militia
out of their own State, without the consent of the State, and for
such length of time only as such State shall agree." "Agrippa"
in Massachusetts wanted each state to keep "the command of its
own militia." New York agreed with Pennsylvania, but would have
made state consent necessary only for expeditions lasting more
than six weeks. North Carolina urged that the states arm the
militia if Congress failed to do so. Finally Maryland urged that
martial law not be imposed on the militia "except in time of war,
invasion, or rebellion."(19)
Proposals for military and arming guarantees in the Bills of
Rights reflect not only Antifederalist concerns but also the
experiences of each state. In keeping with its own bill of
rights and with historical [402] precedents, the Pennsylvania
Antifederalists submitted the most inclusive arming guarantee and
the most explicit one.
The people have a right to bear arms for the defence of
themselves and their own State, or the United States, or for
the purpose of killing game; and no law shall be passed for
disarming the people or any of them, unless for crimes
committed, or for real danger of public injury from
individuals.(20)
New Hampshire sought to forbid Congress "to disarm any citizen
unless such as are or have been in Actual Rebellion."(21)
Virginia and North Carolina presented identical proposals.
Unlike the Virginia bill of rights, this suggestion included
reference to arms; unlike the Carolina bill, it mentioned
militia. The articles declared
That the people have a right to keep and bear arms; that a
well-regulated militia, composed of the body of the people
trained to arms, is the proper, natural and safe defence of
a free state.(22)
The proposals also listed standing armies and civil control of
the military as had the state constitutions. Virginia also
sought to exempt pacifists from military duty.
Any person religious scrupulous of bearing arms ought to be
exempted, upon payment of an equivalent to employ another to
bear arms in his stead.(23)
Even New York, whose constitution contained no bill of rights or
reference to arms, proposed a similar guarantee,
That the people have a right to keep and bear Arms; that a
well regulated Militia, including the body of the People
capable of bearing Arms, is the proper, natural and safe
defence of a free State.(24)
After the drafting of amendments and proposals for the Bill
of Rights, the business of ratification awaited the meeting of
the first federal Congress in the spring of 1789. In military
affairs, the [403] national government had to establish the army
and militia by statute to implement the constitutional
provisions. The militia particularly had to be placed on a
national footing, with organization, arms, and training adopted
to insure uniformity, and regulations drawn for use of the state
forces during emergencies. During the first session, however,
Congress did little more than appoint a militia committee to
examine the alternatives. Madison described their work as an
"arduous task" which probably would not be completed very soon.
In the meantime Congress turned to the more pressing concerns of
establishing a source of revenue, a judicial system, executive
departments, and drafting the Bill of Rights.(25)
One fear which had dominated Antifederalist opposition to the
Constitution had been that the new Congress would use its
extensive powers to rule despotically. As the first session
proceeded, however, congressmen acted with "moderation and
liberalty," thus, wrote Madison, "extinguishing the honest fears
which considered the system as dangerous to republicanism."
Madison himself had introduced the motion to begin consideration
of the Bill of Rights on June 8. Combining the various proposals
for the guarantee of arms and the militia, he suggested that
The right of the people to keep and bear arms shall not be
infringed; a well armed and regulated militia being the best
security of a free country: but no person religiously
scrupulous of bearing arms shall be compelled to render
military service in person.
Unlike the militia and arms provisions of the state bills of
rights which were merely declarative for civil rights, this
provision was cast in legally restrictive language which forbade
federal infringement.(26)[404]
By August 17 when the House of Representatives had begun to
debate the proposed amendments, the militia article had changed
form. The militia clause was moved to the first phrase, and
"free country," a neutral term, was dropped in favor of "free
state," thereby associating the guarantee with the states. The
new provision was introduced buy Elias Boudinot, a New Jersey
Federalist. It read
A well regulated militia, composed of the body of the
people, being the best security of a free state, the right
of the people to keep and bear arms shall not be infringed;
but no person religiously scrupulous shall be compelled to
bear arms.(27)
Elbridge Gerry, an Antifederalist delegate at the Philadelphia
Convention, provided the opposition view of the purpose and value
of the amendment. This provision, he observed, was "intended to
secure the people against the mal-administration of the
Government." Ever suspicious, Gerry hesitated to allow even this
clause. "The people in power," he warned, might "destroy the
Constitution itself" by declaring "who are those religiously
scrupulous, and prevent them from bearing arms" in order to
justify raising an army:
What, sir, is the use of a militia? It is to prevent the
establishment of a standing army, the bane of liberty. Now,
it must be evident, that, under this provision, together
with their other powers, Congress could take such measures
with respect to a militia, as to make a standing army
necessary. Whenever Governments mean to invade the rights
and liberties of the people, they always attempt to destroy
the militia, in order to raise an army upon their ruins.
Therefore, he sought to modify the grounds of religious
exemptions. Debate touched on the practices of the states, of
the possibility of specifying commutation fees or hiring
substitutes. Roger Sherman and Egbert Benson, of Connecticut and
New York, suggested leaving [405] the matter to the states who
would "have the government of the militia, unless when called
into actual service." At this point, the committee of the whole
rejected the motion to strike the last clause, but the full house
later accepted the idea.(28)
The ambiguity of the first clause of the proposal troubled Gerry
and Aedanus Burke of South Carolina. Gerry argued unsuccessfully
that the phrase should read, "a well regulated militia, trained
to arms," in order to emphasize federal duty of ensuring militia
effectiveness. Burke, on the other hand, went straight to the
heart of the issue.
A standing army of regular troops in time of peace [he moved
to add to the amendment] is dangerous to public liberty, and
such shall not be raised or kept up in time of peace, but
from necessity, and for the security of the people, nor then
without the consent of two-thirds of the members present of
both Houses; and in all cases the military shall be
subordinate to the civil authority.
The proposal was defeated by a large majority. The House was
simply not willing to restrict its own authority to greatly.(29)
Richard Henry Lee, one of Virginia's Senators, also believed the
House had made a mistake in omitting reference to the standing
army. "Centinel," writing in the Philadelphia Independent
Gazetteer, seconded Lee's opinion. Congressional power over both
purse and sword was to unlimited and "perfectly independent" of
the states that both the army and militia had become dangerous to
public liberty. The threat from the army was well known.
Congressional power to subject militiamen to martial law and
heavy fines, as well as its authority to march them anywhere,
could also make the militia an instrument of tyranny, especially
in conjunction with the army. Thus, without a prohibition [406]
against unnecessary standing troops and a clearer definition of
militia power, the Constitution might itself be used to destroy
all liberty.(30) In the Senate at this time was proposed an
additional amendment to the bill of rights then under
consideration,
That each State respectively shall have the power to provide
for organizing, arming, and disciplining its own militia,
whensoever Congress shall omit or neglect to provide for the
same. That the militia shall not be subject to martial law,
except when in actual service to the United States in time
of war, invasion or rebellion; shall be subject only to such
fines, penalties, and punishments as shall be directed or
inflicted by the laws of the State.(31)
It was immediately rejected, partly because militia power was
already accepted as being concurrent and partly because the Fifth
Amendment dealt with martial law.
At the close of the session, Senators and Representative met in
conference to work out their differences. The future Fifth
Amendment protected militiamen from court martial sentences "for
a capital, or otherwise infamous crime" except "in time of war or
public danger." The Second Amendment, without the exemption of
pacifists and the prohibition on standing armies or other
impediments to federal power, read,
A well regulated militia, being necessary to the security of
a free State, the right of the people to keep and bear arms,
shall not be infringed.
On September 28 Congress transmitted twelve proposed amendments
to the states for ratification. In the following two years the
states approved ten of the articles which were ratified in
December 1791 as the federal Bill of Rights.(32)
In that period President Washington and Congress took additional
steps to settle the national militia and establish the army. In
[407] January 1790 Secretary of War Henry Knox presented his 1786
plan for an extensive militia to Congress. Washington had
reviewed it, added some points, and approved it as the basis for
a militia statue. Like his earlier plan and those of
nationalists generally, the reports advocated a large select
corps under close federal control. Antifederalists objected in
the same terms they had used earlier and emphasized the expense
and the danger of federal encroachment on the states. The report
became buried during House consideration of Hamilton's funding
and assumption proposals. Only on July 1 did a bill emerge from
committee, but it had little resemblance to the Knox Plan.(33)
When the third session of the first Congress met in December
1790, the fate of the Bill of Rights had not yet been settled.
Therefore, debates of the House of Representatives on
establishing the national militia were desultory and
inconclusive. To create a strong select corps, a feature still
remaining in the bill, might frighten Antifederalists into
rejecting the Bill of Rights. The remarks on arming give a
convenient summary of opinions in Congress concerning the meaning
of the Second Amendment and the militia clauses of the
Constitution. The bill required each militiaman to find his own
musket and accoutrements, in good republican ideological
tradition despite the inefficiency of the practice in the
colonial period. In England, declared James Jackson, "the arms
put into the hands of the militia, in the different cities,
rendered them formidable to the Barons; and these Barons, on the
other hand, when supported by arms of their countrymen, extorted
from King John, the great charter of liberty." Jeremiah
Wadsworth, a nationalist perhaps seeking to ally fears of federal
tyranny, made the key [408] point. What person, he asked,
"wished to have so large a proportion of the community armed by
the United States, and liable to be disarmed by the government,
whenever it should be thought proper"? The House finally
approved the traditional method. On the question of exemptions,
debate bogged down in details. After considerable discussion,
therefore, the entire bill was tabled and lost with the close of
the first Congress in March 1791.(34)
The Second Congress brought many newly elected members to
Philadelphia in October 1791, but no news of any further
ratifications of the Bill of Rights since June 1790. By December
15, with approval by Virginia and Vermont, recently admitted as a
state, the amendments went into effect. The militia bill was
reintroduced but was not considered until February 1792 and not
passed until May. On May 2 and 8,
respectively, Congress enacted regulations to call out the
militia to enforce federal law and to organize the train the
state forces. The later act, with provisions for militiamen to
provide their own weapons, but through a select corps, fines, or
other means for the federal government to enforce training
requirements or even organization, remained on the statue book
until 1903. Federalist proposals for a select corps had made
Antifederalists suspicious of nationalist intentions. With
strong opposition in the House of Representatives to implementing
these proposals when the Bill of Rights was in doubt, the
possibility of a strong national militia was unlikely. With the
creation of a federal army on the western frontier, the need
diminished. Finally, with ratification of the Second Amendment,
the plan for a select corps virtually disappeared. The Militia
Act did allow men to continue to [409] establish independent
companies which helped compensate for the loss of the more formal
corps of light infantry which Washington had sought.(35)
What, then, did the Second Amendment mean to Americans in the
early 1790s? The explanation requires at least two separate and
in many way inconsistent and incompatible answers. To
Antifederalists writers and politicians, steeped in the tradition
of Commonwealth ideology and of revolutionary resistance, the
militia provided a major attribute of state sovereignty to
prevent the consolidation of the state governments into a single
union. At the same time the militia provided the only viable
counterpoise to any standing army Congress might create. The
right to keep and bear arms insured that the people would retain
the military potential of resistance against governmental
tyranny. To Federalists who advocated a strong national army and
a militia reserve force, the Second Amendment was merely
declarative of a traditional ideological and constitutional
right, of no practical effect on their plans. The states and
colonies had never fully developed their military potential;
militia obligation had often been totally neglected. Federalists
could accept the amendment without fearing loss of national
power. To them "free State" equally represented the nation as a
whole (Madison's contention) or the individual states. A third
body of opinion is generally ignored in analysis of the
amendment. The men who were liable to the militia obligation of
service, training, and providing arms frequently sought to evade
those duties by paying fines or ignoring the requirements.
Contrary to the general view, before the nineteenth century, not
all men owned firearms.[410] Militia musters repeatedly noted
the deficiency of any type of weapon among men who mustered.
Timothy Dwight, quoted at the head of the chapter, made note of
this problem. As late as the 1830s militia duties of all kinds
had become onerous, especially to city laborers who cold afford
neither arms nor fines. How, then did the Second Amendment
affect them? They were assured of a Jus Militiae which
they did not seek, of a right to keep arms which they did not
own. Thomas Jefferson in the Virginia convention in 1776 had
unsuccessfully tried to insure their freedom to use their weapons
without restrictions but failed to get recognition of that right
even on their own property. The Second Amendment did not
approach that degree of liberty. John Adams, considering the use
of arms generally, had written in 1787,
It must be made a sacred maxim, that the militia obey the
executive power, which represents the whole people, in the
execution of laws. To suppose arms in the hands of
citizens, to be used at individual discretion, except in
private self-defense, or by partial orders of towns,
counties,or districts of a state, is to demolish every
institution, and lay the law prostrate, so that liberty can
be enjoyed by no man— it is a dissolution of the government.
The fundamental law of the militia is, that it be created,
directed, and commanded by the laws, and every for the
support of the laws.(36)
By common law and American statutory law, individuals could not
use weapons indiscriminately. Even the right of revolution
assumed a rational goal of deposing tyrants, and then only when
all known law had ceased to exist. Absolute freedom of arms had
its being only in the mythical state of nature. Some Americans
may have looked to the Second Amendment to justify arms use in
the "state of nature" of the American wilderness. The majority,
however, inconsistently towards one another's views, [411] looked
to the Anglo-American traditions of common and statutory law,
legal obligation to serve in the militia or posse
comitatus, ideological balancing of dangerous government
power, military and economic modernization, and constitutional
theory to define the meaning of the Second Amendment.
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