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A Well-Regulated Militia
It's far easier to understand and affirm the individual right to bear arms with a more informed perspective of how the founding fathers thought of the term militia.
At twenty-seven words, the 2nd Amendment is the third shortest amendment in the Bill of Rights. Given the tumultuous disagreements centering around firearms in modern America, the average American citizen might wonder why the 2nd Amendment seems to have such brief treatment by the architects of the US Constitution.
It is interesting to note that the crafters of the US Constitution did not enumerate the ideas later found in the Bill of Rights in the main body of the text. This wasn’t because they were deemed unimportant, but because they were considered self-evident and inalienable (18th Century language for…duh!).
The Bill of Rights was only added to the US Constitution as its first ten amendments after ratification in response to the concerns of the anti-federalists. The anti-federalists were concerned that what was self-evident and inalienable in 1787 might become muddled in the future. And, absent explicit and enumerated protections, they were concerned the federal government was likely to abuse and impugn such rights. How real such concerns proved to be!
So, if the content of the Bill of Rights was considered so self-evident by the founders and their contemporaries that they initially saw no reason to even list them in the document that founded the American republic, why does the language they chose seem so ambiguous today? I hope, in no small measure, to answer this query in this article.
The right to bear arms, as an enumerated right in the US Constitution, is built upon two separate but equally essential principles: the necessity of a well-regulated militia and the natural right of self-defense. Since the militia aspect of the phrasing is the most misunderstood portion of the amendment, that is what I’m going to discuss today.
Much of the debate centered around the 2nd Amendment inevitably hovers around the opening phrases of the amendment, “A well-regulated militia, being necessary for the security of a free state…”.
Conservatives are often slightly bewildered as to why the framers of the Constitution didn’t merely state, “The people have the right to bear arms,” throw in a couple of exclamation points for good measure and save us some trouble. But the 2nd Amendment opens with this important phrase because they communicated some fundamental philosophical ideas of American governance, and (believe it or not) do serve as a literary exclamation of a simple declaration.
First, to address the most common arguments that use the connection of the right to bear arms to the need of a well-regulated militia to state that today’s popular interpretation is “beyond the original purpose of the amendment.” I can paraphrase it as follows:
In the colonial era and the early years of our nation, the security and livelihood of local communities often relied upon local military organizations known as militias and sometimes called “minutemen.”
These organizations were composed of ordinary citizens who volunteered their services and provided their own firearms in exercising these services. The settlements often used them as impromptu law enforcement entities and protected the communities from bandits and Indian raids.
When the Revolutionary War broke out, these militias constituted the initial bulk of American forces, and it was the militias in and around Boston town that George Washington organized into the Continental Army.
While other militias throughout the theaters of war sometimes operated as capable irregular forces, it was not until George Washington convinced Congress to appoint Friedrich Von Steuben as Inspector General, who crafted and established a regimented training program to instill real military discipline, that the Continental Army gained any actual ability to engage the British regulars effectively.
After the war, Congress had generated such debt in maintaining the Continental Army that they had to disband it and rely once more upon local militias to provide military capabilities for the nation, inadequate as they were. The inability to effectively levy taxes due to the restrictions of the Articles of Confederation compounded this situation.
When the US Constitution was drafted, the nation still relied heavily upon local militias, which explains the language of the 2nd Amendment. After the embarrassments that occurred in the War of 1812, including the burning of the White House, the nation finally had both the incentive and generated national credit to establish an active standing federal army.
This began the gradual disuse of traditionally organized local militias until, at last, with the Militia Act of 1903, the militias became the Army National Guard; organized State reserve units serving as local extensions of the Federal Army.
This demonstrates that “the security of a free state” no longer relies upon ordinary citizens with personal firearms, loosely organized into local militias. Even when the government initiates a military draft, the military provides the weapons and the training.
The idea that the 2nd Amendment enables an absolute proliferation of firearms to every citizen, despite no longer needing their services in local militias, is a modern invention. This modern view is promulgated by the gun lobby, the gun industry, and self-described “tough guys” who probably latch on to their arsenal of assault rifles because they’re compensating for something.
Okay, so I’m sure a lot of students of American history and those who are already strong proponents of the 2nd Amendment have recognized some of the problems with this argument. To be fair, such an argument is not necessarily knee-jerk, demonstrates a good faith effort to research American history, and is actually a reasoned explanation of what I term the “militias are outdated” argument for substantial gun control and regulation.
In all honesty, this argument is probably the best argument for gun control. It builds itself on reason and logic as opposed to emotion and fear. It attempts to gain legitimacy through the citation of history instead of nauseating references to “how things are in other countries.” It still falls short, very short, and I’ll explain.
The problem with the “militias are outdated” argument isn’t the logic itself, but the premise upon which the reasoning is based. The argument attempts to apply a modern definition of “militia” to a discourse on history, which understandably leads to incorrect conclusions and understandings. The reality is, the phrase “militia” in 1787 meant something entirely different, and, to make things interesting, current federal law actually reflects the classic definition of the militia as opposed to the typical modern understanding.
To provide some context, I’m going to give a few historical quotes. The first two are believed to be from Richard Henry Lee, the Virginia delegate who introduced the resolution for independence to the Second Continental Congress. Historians consider him to be the author of the Federal Farmer, a series of tracts on the proposed US Constitution.
“A militia when properly formed are in fact the people themselves…and include…all men capable of bearing arms.”
“To preserve liberty, it is essential that the whole body of the people always possess arms…and be taught how to use them.”
(Both quotes are from Federalist Farmer #18, written in 1788)
The next quote was uttered at the Virginia Ratifying Convention on June 4, 1788, by George Mason (more on him in a second).
“I ask who are the militia? They consist now of the whole people.”
Now, there is actually something a little odd in my using these citations because both of these men were anti-federalists. This means they were against the ratification of the Constitution. In fact, George Mason (despite bearing personal authorship of more than a few phrases in the document itself) was one of only three delegates to the Constitutional Convention who refused to sign it.
But it’s important to bear in mind that when these men wrote and declared these things I’ve quoted, the US Constitution did not have a Bill of Rights. The document, absent the first ten amendments, primarily dealt only with the tedious processes of government and was virtually void of any enumerated rights that the federal government had to recognize and preserve.
Imagine that for a moment. All the things we take for granted: freedom of speech, religion, the press, the right to a speedy trial, protection from unlawful search and seizure, protection from cruel and unusual punishment, even the guarantee that any powers were reserved for States in the face of the new federal government. None of that was in the US Constitution when the delegates put it forward to the States for ratification. Would you be concerned? I would definitely be concerned.
There were many influential individuals, many of them heroes of the American Revolution, who began raising loud objections to the proposed Constitution because of the absence of a Bill of Rights. Remember Samuel Adams and John Hancock? Yup, anti-federalists.
It got to the point that fistfights were breaking out amid the ratifying conventions. anti-federalists were convinced that the US Constitution would sacrifice all the liberties paid for in precious blood during the long struggle against the British. It became quickly apparent that not including an enumeration of rights in the body of the text of the document as proposed to the states had been an oversight that put it in jeopardy of not being ratified by enough states to go into effect. Something had to be done…but what?
Because of the tumultuous and divisive state of affairs, there was no way anyone could convince the States to send delegates to reconvene the Constitutional Convention and put forth a revised document for consideration. The current document and the process already underway was the only chance to ditch the weak and ineffectual Articles of Confederation. So, what was to be done?
Returning once more to our anti-federalists, Samuel Adams and John Hancock, they met with prominent federalists in Massachusetts and arrived at a compromise. They agreed each state that ratified the Constitution would be allowed to propose amendments for the consideration of a Bill of Rights for the First Congress to pass after the Constitution went into effect. This “Massachusetts Compromise” won the day. By June 1788, enough states had ratified the US Constitution for it to be certified, with many states taking the opportunity to submit amendment proposals (Fun fact: Virginia proposed forty amendments).
Now, even though the ratification of the Constitution had succeeded, there was still no love lost between the federalists and the anti-federalists.
James Madison, a prominent and influential federalist, had been heavily involved with the effort to ratify the Constitution in New York, aiding Alexander Hamilton in writing the Federalist Papers, and had participated in perhaps the greatest faceoff of the ratification fight at the Virginia Ratifying Convention against…Patrick Henry (I bet you didn’t realize you knew so many anti-federalists).
After ratification, James Madison faced one of the hardest fought congressional campaigns in the nation in large part due to Patrick Henry and the anti-federalists maintaining substantial control in the Virginia State government. They purposefully gerrymandered James Madison’s congressional district to keep him out of Congress. James Madison ran against anti-federalist, and fellow future US President, James Monroe (if you haven’t started wondering what watered-down version of US history your high school teacher taught you, you need to).
Finally, we get to the meat of this whole exercise in every fact about ratification you never knew you didn’t know. James Madison was only able to secure victory in his congressional campaign when he was forced to promise he would introduce a Bill of Rights as his first act in office.
James Madison kept his promise, and he would indeed draft and propose the Bill of Rights in the First US Congress. Being a Virginian, James Madison naturally built his proposal upon the Virginia Declaration of Rights. A cursory glance of this earlier document, adopted in 1776 and also influencing the Declaration of Independence (Thomas Jefferson was a Virginian), will discover obvious similarities in language and substance.
Now, you may not believe this, but the principal author of the Virginia Declaration of Rights was none other than our aforementioned anti-federalist George Mason.
So, let’s see if you’ve connected the dots. The bill of rights primarily exists because the anti-federalists raised heated objections to the US Constitution due to the absence of enumerated rights in the document, objections built upon those voiced by George Mason as the loudest critic at the Constitutional Convention itself.
After James Madison reached a compromise between federalists and anti-federalists, he presented the Bill of Rights to Congress to honor the campaign promise that got him elected. He used language based upon an earlier document principally authored by George Mason.
This means that just as historians generally consider James Madison the “Father of the Constitution,” we can easily consider George Mason (whom your history teachers probably never even mentioned, which is really too bad because his other great objection was that the Constitution did not end the slave trade, which he fundamentally rejected as an affront to liberty) as the “Father of the Bill of Rights.” Following this logic, it is perhaps easiest to understand the intent of the language by understanding the intent of the principal author.
So we return to my originally cited quote from George Mason at the Virginia Ratifying Convention,
“I ask who are the militia? They consist now of the whole people.”
And in case there is any doubt that this definition of the militia, being the whole people, is not intended as the definition to be used in the wording of the 2nd Amendment, let us consider the text of article 13 of the Virginia Declaration of Rights,
“That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense 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 be governed by, the civil power.”
With all of these understandings laid before you, can there be any level of confusion as to what the language of the 2nd Amendment clearly meant based upon the perceptions and principles of 1787? A well-regulated militia constitutes the same body of people referenced in the opening statement of the US Constitution, We The People of the United States of America.