Second Amendment: Only Militias Need Apply, Part I

Originally posted by mkfox on 06/15/07

As a student of history, I always believed the Second Amendment pertained only to militias but only after the Va. Tech tragedy did I decide to investigate for myself based on primary sources; here’s what I’ve found after weeks of research. The Second Amendment means what it says: “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.” Or in other words, the federal government cannot dismantle states’ militias by confiscating their weapons or over-regulating them into dissolution. The Second Amendment does not guarantee private individuals the right to obtain, carry or own firearms, and history and the law demonstrates this point. Almost never, in all the important documents, petitions and debates of the revolutionary era, was a right “to keep and bear arms” for private individuals discussed, nor did it appear to be one of the grievances the Patriots had against Parliament and the crown throughout the Revolution.

A modern romanticized myth holds that Revolutionary War militiamen were ad hoc bands of tavern-dwelling colonists, with their muskets at hand waiting for an emergency. State militias were in fact designated, codified fighting forces created, armed and operated by state legislatures and/or Committees of Safety with commissioned officers selected by legislators or elected by their own troops. Thomas Jefferson wrote about his state’s militia in his “Notes on the State of Virginia” in 1781:

“Every able-bodied freeman, between the ages of 16 and 50, is enrolled in the militia. Those of every county are formed into companies, and these again into one or more battalions, according to the numbers in the county. They are commanded by colonels, and other subordinate officers, as in the regular service. In every county is a county-lieutenant, who commands the whole militia of his county, but ranks only as a colonel in the field. We have no general officers always existing. These are appointed occasionally, when an invasion or insurrection happens, and their commission determines with the occasion. The governor is head of the military, as well as civil power. The law requires every militia-man to provide himself with the arms usual in the regular service.”

The federal Militia Act of 1792 defined who could enroll in the militia, supply demands, organization, officer quotas, who was exempt from militia service and the powers the president had over the militia as commander-in-chief.

Private, individual arms regulation is nothing new, not even in English common law. The 1328 Statute of Northampton proclaimed, with brackets:

“Item, it is enacted, that no man great nor small, of what condition soever he be, except the king’s servants in his presence, and his ministers in executing of the king’s precepts, or of their office, and such as be in their company assisting them, and also [upon a cry made for arms to keep the peace, and the same in such places where such acts happen,] be so hardy to come before the King’s justices, or other of the King’s ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure. And that the King’s justices in their presence, sheriffs, and other ministers in their bailiwicks, lords of franchises, and their bailiffs in the same, and mayors and bailiffs of cities and boroughs, within the same cities and boroughs, and borough-holders, constables, and wardens of the peace within their wards, shall have power to execute this act. And that the justices assigned, at their coming down into the country, shall have power to enquire how such officers and lords have exercised their offices in this case, and to punish them whom they find that have not done that which pertained to their office.”

Pro-gun groups will tell you that keeping firearms in your home is the last defense against tyranny, as, they say, the Founding Fathers understood and dictators such as Hitler and Stalin understood – although you’d have a hard time convincing me that the Holocaust wouldn’t have happened merely if every Jew in Nazi Germany had a gun. Well, OK, tyranny is bad, I can understand that. Yet, does that mean I could shoot policemen who come to my house to arrest me for breaking a law I find unconstitutional or tyrannical? The Founders were afraid of the tyranny of the crown but also the tyranny of anarchy, of fanatics and factions trying to topple the government. Dozens of skirmishes were fought during the Revolution between vindictive armed mobs of colonists for revenge and property, especially in the rural South. In 1783, the Continental Army’s disillusionment with Congress’ inaction paying and supplying the military nearly compelled the Army to march on Congress in Philadelphia, but George Washington peacefully quelled the rebellion before it took root. In perhaps the most-read Federalist Papers essay, No. 10 by James Madison, the threat of factions is addressed: “So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. … No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”

When discussing the militia in policy terms, the Founding Fathers nearly always used adjectives such as “well-regulated,” “disciplined,” “trained” and “organized,” knowing that militias would be useless if militiamen were ineffective or unruly soldiers. Washington wrote to Continental Congress in September 1776 about his concerns of the militias’ deficiencies: “To place any dependence on Militia, is, assuredly resting upon a broken staff. Men just dragged from the tender scenes of domestick life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly train’d, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows.” Indeed, among the Patriots’ worst losses in the Revolution was the Battle of Camden, where the British routed ill-prepared and ill-trained militiamen.

The thing on every delegate’s mind at the Constitutional Convention in Philadelphia in 1787 was Shays’ Rebellion, an unsuccessful armed uprising of Massachusetts farmers, townspeople and even local politicians between Aug. 29, 1786, and Feb. 3, 1787, in an attempt to seize arsenals and close courthouses. High state taxes to pay off war debt coupled with property seizures for failure to pay these taxes sparked the insurrection. The fact Shays’ Rebellion had to be quelled by just a state-funded militia exposed how weak and ineffective the federal government and federal authority were under the Articles of Confederation. (Although the Articles ultimately failed, Article VI stated, “… every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”) Washington wrote during the rebellion, “Without some alteration in our political creed, the superstructure we have been seven years raising at the expence of so much blood and treasure, must fall. We are fast verging to anarchy and confusion!” A vision of the young nation dissolving into chaos was very real at this time in American history, and there was a new emphasis on order and national defense. Washington, as president of the Constitutional Convention, probably said it best in a letter to Continental Congress President Arthur St. Clair at the convention’s adjournment:

“It is obviously impractical in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was encreased by a difference among the several states as to their situation, extent, habits, and particular interests.”

As early as June 1776, the Virginia Bill of Rights – which would become a blueprint for the U.S. Bill of Rights ratified in 1791 – stated in Article 13: “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; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” At the Constitutional Convention, delegates debated how militias should be trained and equipped, how much authority the federal government should have over them and how officers should be appointed.

Alexander Hamilton observed in Federalist No. 28, “If it should be a slight commotion in a small part of a State, the militia of the residue would be adequate to its suppression. … An insurrection, whatever may be its immediate cause, eventually endangers all government.” Many Americans were weary of the idea of a powerful standing military but were guaranteed that their state militias would continue to ensure order and security. Hamilton wrote in Federalist No. 29, quoting Article I § 8 of the Constitution:

“It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union `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, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS. [original emphasis]’ “

Madison, the Father of the Constitution, argued that a national standing army would never become so great and powerful that it would reign tyrannically, and the militias would aid the federal army against invasion. He observed in Federalist No. 46: “To these [invaders] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.” As a congressman in the 1st Congress, Madison proposed the Bill of Rights in a floor speech on June 8, 1789, including one article declaring, “The right of the people to keep and bear arms shall not be infringed; a well armed, and well 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.” In his first inaugural address in 1809, Madison said an “armed and trained militia is the firmest bulwark of republics.” He again stipulated in his fifth State of the Union address in 1813 in the midst of the War of 1812: “The militia being always to be regarded as the great bulwark of defense and security for free states, and the Constitution having wisely committed to the national authority a use of that force as the best provision against an unsafe military establishment, as well as a resource peculiarly adapted to a country having the extent and the exposure of the United States, I recommend to Congress a revision of the militia laws for the purpose of securing more effectually the services of all detachments called into the employment and placed under the Government of the United States.” Throughout his two terms in office, Madison asked Congress to reorganize the militias, saying in his final State of the Union address in 1816, “An efficient militia is authorized and contemplated by the Constitution and required by the spirit and safety of free government.” Madison does discuss an armed populace in Federalist No. 46 as being beneficial for the nation, but again he discusses it in terms of militias:

“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.”

At the time the Federalist Papers were being written, anti-Federalists were concerned about federal control over state militias with the new Constitution, especially since the Congress could call up and regulate the militias – as mentioned in Article I § 8 – and the president would be commander-in-chief of the militias – as mentioned in Article II § 2 – as well as Article I § 10 stating, “No State shall, without the Consent of Congress, … keep Troops … in time of peace …” In the Federalist Papers, Hamilton cited the Necessary and Proper Clause of the Constitution as just cause for the federal government to rally the militias to enforce federal law, and John Jay argued that it would be much more difficult to muster and organize military defense against invasion if several militias fought independently against the enemy rather than together. Jay also wrote in Federalist No. 4 that if “our militia [is] properly organized and disciplined,” it will help bolster the new American Republic’s stature with the superpowers of Europe. Hamilton further observed in Federalist No. 24 that although the militias can help safeguard against invasion, rebellion and Indian attacks, the militias cannot be relied upon for all matters of national defense during peacetime.

“The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens.”

Among other Founding Fathers, Washington said in his first State of the Union address in 1790, “A free people ought not only to be armed but disciplined; to which end a uniform and well digested plan is requisite: And their safety and interest require that they should promote such manufactories, as tend to render them independent on others, for essential, particularly for military supplies.” Washington also extensively discussed militias in his sixth State of the Union address in 1794: “The devising and establishing of a well regulated militia would be a genuine source of legislative honor and a perfect title to public gratitude. I therefore entertain a hope that the present session will not pass without carrying to its full energy the power of organizing, arming, and disciplining the militia, and thus providing, in the language of the Constitution, for calling them forth to execute the laws of the Union, suppress insurrections, and repel invasions.”

In his “A Summary View of the Rights of British America” in 1774, Jefferson criticized the King’s use of the British military in the colonies, writing, “Every state must judge for itself the number of armed men which they may safely trust among them, of whom they are to consist, and under what restrictions they are to be laid.” In his first inaugural address in 1801, Jefferson called “a well-disciplined militia” “our best reliance in peace and for the first moments of war, till regulars may relieve them.” In his eighth State of the Union address in 1808, Jefferson said, “For a people who are free, and who mean to remain so, a well-organized and armed militia is their best security. It is, therefore, incumbent on us, at every meeting, to revise the condition of the militia, and to ask ourselves if it is prepared to repel a powerful enemy at every point of our territories exposed to invasion.” Jefferson was particularly weary of powerful standing armies, and he shrank the federal military during his two terms as president. In his seventh State of the Union address in 1807, he said in regard to the possibility of war with France or Britain,

“When a regular army is to be raised, and to what extent, must depend on the information so shortly expected. In the meantime I have called on the States for quotas of militia, to be in readiness for present defense, and have, moreover, encouraged the acceptance of volunteers; and I am happy to inform you that these have offered themselves with great alacrity in every part of the Union. They are ordered to be organized and ready at a moment’s warning to proceed on any service to which they may be called, and every preparation within the Executive powers has been made to insure us the benefit of earl exertions.”

George Mason, author of the Virginia Bill of Rights and an anti-Federalist who pushed for a federal Bill of Rights, “introduced the subject of regulating the militia” at the Constitutional Convention, according to Madison’s notes. “He thought such a power necessary to be given to the [General] Government.” Mason wrote Jefferson in 1788, “There are many other things very objectionable in the proposed new Constitution; particularly the almost unlimited Authority over the Militia of the several States; whereby, under Colour. of regulating, they may disarm, or render useless the Militia, the more easily to govern by a standing Army; or they may harrass the Militia, by such rigid Regulations, and intollerable Burdens, as to make the People themselves desire it’s Abolition.”

John Adams discussed the militias’ benefits in his “Thoughts on Government” in April 1776:

“A militia law, requiring all men, or with very few exceptions besides cases of conscience, to be provided with arms and ammunition, to be trained at certain seasons; and requiring counties, towns, or other small districts, to be provided with public stocks of ammunition and entrenching utensils, and with some settled plans for transporting provisions after the militia, when marched to defend their country against sudden invasions; and requiring certain districts to be provided with field-pieces, companies of matrosses [artillerymen], and perhaps some regiments of light-horse, is always a wise institution, and, in the present circumstances of our country, indispensable.”

He also said in an address to Congress in 1797 when war with France seemed likely, “A naval power, next to the militia, is the natural defense of the United States. … I recommend to your consideration a revision of the laws for organizing, arming, and disciplining the militia, to render that natural and safe defense of the country efficacious.”

Patrick Henry – one of the most radical Founding Fathers – was so suspicious of the Constitutional Convention, he refused to attend and outright rejected the Constitution it produced. At the Virginia ratification convention in June 1788, Henry condemned what he saw as unchecked constitutional federal power over state militias.

“If the states have the right of arming them, etc., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. … May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, etc.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms, etc.? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties; and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world, for trusting your safety implicitly to implication.”

Constitutional Convention delegate Luther Martin refused to sign the Constitution because he believed it infringed states’ rights, including federal power over militias. He wrote in 1788, “… leaving the power to the several States, they would respectively best know the situation and circumstances of their citizens, and the regulations that would be necessary and sufficient to effect a well regulated militia in each – That we were satisfied the militia had heretofore been as well disciplined, as if they had been under the regulations of Congress …”

Federal Farmer was a series of anonymous essays from 1787-1788 denouncing the Constitution’s perceived flaws; to this day, no one is certain who penned them. “Each state must appoint regimental officers, and keep up a well regulated militia,” Federal Farmer No. 6 said. “The militia ought always to be armed and disciplined, and the usual defence of the country.” No. 18 argued that “the constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usuage of the states, all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided.”

In other documents of the era, the Northwest Ordinance of 1787 stated, “The governor, for the time being, shall be commander in chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress.” There was no talk of a right to bear arms. In the laundry list of grievances in the Articles of Association adopted by Continental Congress in 1774 and in the Declaration of Independence in 1776, there was no talk of firearm “rights.” Nor was such a right addressed in the Albany Plan of Union in 1754, a compact of common military defense between seven Northern colonies, nor the Declaration of Rights of the Stamp Act Congress representing nine colonies in 1765.

Among the first 13 states’ original constitutions, each one addressed state militias differently, although most detailed how militias will be formed and their officers appointed, as well as what authority state legislatures and governors would have over them. (New Hampshire’s, Delaware’s and South Carolina’s constitutions made little mention of militias.)
? Article XXXV of Georgia’s ratified in 1777: “Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they become too numerous for one battalion, they shall be formed into more, by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into independent companies.”
? Article XXV of Maryland’s ratified in 1776: “That a well-regulated militia is the proper and natural defence of a free government.”
? Article XVII of Massachusetts’ ratified in 1780: “The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.”
? Article XL of New York’s ratified in 1777: “And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.”
? Article XVII of North Carolina’s ratified in 1776: “That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.”
Some states, however, have defined personal firearm ownership more so as an individual right:
? Article XIII of Pennsylvania’s in 1776: “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”
? Rhode Island used its original 1663 charter as its constitution until 1842. The former stated that the colonial government ought “to assemble, exercise in arms, martiall array, and putt in warlyke posture, the inhabitants of the sayd collonie, For theire speciall defence and safety.” The current constitution states explicitly in Section 22, “Right to bear arms. – The right of the people to keep and bear arms shall not be infringed.”
? Like Rhode Island, Connecticut relied on its colonial charter of 1662 until the adoption of a new constitution in 1818, which stated in Section 17, “Every citizen has a right to bear arms in defence of himself and the state.” The charter made no mention of firearm rights but called for the colony “to Commissionate, Impower, and Authorize such Person or Persons as they shall think fit, to lead and conduct the said Inhabitants, and to encounter, expulse, repel and resist by Force of Arms [any enemies].”

So it seems clear based on its history that the Second Amendment conditionally applies to state military or law enforcement forces if not simply state militias. Because there are no more militias akin to those of the Revolutionary era, does that render the amendment obsolete? Not quite.

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