We Are the Militia: The People and the Right to Bear Arms

On April 17, 2013, a gun control bill introduced in the U.S. Senate failed to secure enough votes in that chamber to pass.  A visibly irritated President Obama vented his frustration in a press conference, bitterly accusing a minority of 46 senators of placing politics over the good of the country for not supporting his legislative agenda regarding firearms in America.  They had, according to the president, succumbed to the “willful lies” of the “gun lobby and its allies.”  Others, who are generally categorized as “pro-gun advocates,” would argue that the 46 senators (mostly Republicans) had fulfilled one of their roles in upholding the Constitution of the United States – specifically the Second Amendment.

This essay offers an analysis of the intent on the part of the authors of the Constitution regarding the Second Amendment and the right of the people to bear arms.  To paraphrase one historian on the topic: even if historical perspective fails to resolve the “modern debate over gun control, it does serve as a useful reminder of the dangers of ceding the study of the constitution to lawyers and activists.”[1]

With any discussion about the Constitution, it is important to note that American revolutionaries who later became founders of the new nation considered rights as inherent and inalienable.  Rights come from God, not from government, thus government could not grant rights – only restrict rights if not properly monitored by a virtuous citizenry who balanced rights with responsibility (or duty).  Following this line of thought, the first ten amendments to the Constitution of the United States (known as the Bill of Rights) do not grant rights, rather the Constitution enumerates, or lists, them.  Some historians argue that the Constitution was actually intended by elite founders to serve as a check on popular democracy and the leveling tendencies of the American Revolution by reining in the power of the common folk.[2]  Fearing that the revolution had perhaps gone too far, and to protect their economic interests, argues Terry Bouton, “America’s elite founders dedicated themselves to remaking the new nation according to the demands of their former masters.”  According to Bouton, the “most important element of this attempt to scale back democracy was replacing the Articles of Confederation with a new federal Constitution in 1787.”[3]

The ten amendments were added by those who supported the federal Constitution (known as Federalists) to triangulate those who opposed (aptly named Anti-Federalists) during ratification crisis.  It was over “fears of sparking popular revolts,” writes Bouton, which “had convinced the men who sat in the 1787 convention to back off from the more extreme checks on the people…”  Indeed, it was only the “popular pressure during and after the ratification struggle that produced a strong Bill of Rights, which not even James Madison had originally wanted.”[4]

But, as noted above, the Constitutional amendments did not grant rights, merely enumerated specific rights that that Federalists were guaranteeing, to a skeptical public, that the new federal government would not – and by design, could not – infringe upon.  Supporters and skeptics would continue to debate the nature, merits, and meaning of the Constitution well into the early nineteenth century.  “In the period between 1776 and 1828,” notes Saul Cornell “Americans from all walks of life were drawn into a wide-ranging debate about the nature of constitutional government.”[5]  As we do today.

The Constitution of the United States

Amendment II

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.

Much focus has been placed by anti-gun advocates and scholars upon the qualifying clause at the beginning of the Second Amendment – “a well regulated militia” – to show that the intent of the founders was not for individual ownership of arms for private purposes.  They tend to interpret the militia as a military organization maintained at the cost of the state or nation, equating it with the modern National Guard.  This interpretation is a flawed anachronism due to its “presentist” view and is a misunderstanding of what, and who, the militia was, and were, at the time of the writing of the Constitution.[6]

The militia tradition in America during the colonial period held that “membership was nearly universal, consisting of able-bodied men between the ages of sixteen and sixty, who were required to possess their own firearms and other military paraphernalia…”  The structure and make-up did not change much over the course of a century-and-a-half leading up to the Revolution as “…the English colonies had included most free white males within the militia structure, and this near universal requirement did not change in 1775 or 1776”[7]

The militia, then, was every citizen – in so much as what constituted the contemporary definition of citizen.  This definition generally omitted slaves, free blacks, native Americans, women, and others depending upon the time-frame.  Yet, taken in the context of the period, membership in the militia was overarching, imposing upon a significant portion of society the duty of maintaining arms and readiness to participate in the common defense.  Where scholars and others display confusion about the nature of the militia is in their association of the militia (the near universal body of white-male citizens charged with the requirement to train with their weapons) and the select militia and provisional armies raised by the colonies during the seventeenth and eighteenth wars for empire in North America.  These provisional armies were temporary military units raised by drafting men out of the larger militia pool.  Historian Fred Anderson provides an excellent explanation: “The militia was defined…not as an army per se, but as an all-purpose military infrastructure: a combination of home guard, draft board, and rear-echelon supply network.”  In short, the militia served as the “manpower pool from which the volunteers [for active military service] could be raised.”[8]

This understanding of the nature of the militia is evident in comments made during the Virginia Convention’s debates about the Constitution, June 2 through June 27, 1788:

George Mason: “Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table [the Constitution] gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor. … ” (Monday June 16)

Francis Corbin: “Who are the militia? Are we not militia?” (Saturday June 7)

Patrick Henry: 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, &c.; 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, &c.? 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. (Sat June 14)

Nicholas: If war be supported by militia, it is by personal service. The poor man does as much as the rich. Is this just? What is the consequence when war is carried on by regular troops? They are paid by taxes raised from the people, according to their property; and then the rich man pays an adequate share. (Sat June 14)

James Madison: [showing the contrast between “select” militia and “militia-at-large’]   His friend had mentioned the propriety of having select militia, like those of Great Britain, who should be more thoroughly exercised than the militia at large could possibly be. But he, himself, had not spoken of a selection of militia, but of the exemption of the highest classes of the people from militia service (Monday June 16)

These examples typify the frame of reference for the patriots-turned –Federalists regarding the militia as they wrote the Constitution in 1787 (and for everyone else in America at the time, for that matter).  Having just emerged from the eight year war with Britain to secure independence, Americans, especially patriot leaders, tended to emphasize the role of the militia over the regular troops of the Continental Army in winning the war.  It was the ordinary citizen they chose to celebrate; accordingly they focused upon the yeoman farmer, the artisan, merchant, and mechanic who left the plow and workshop to confront and defeat the professional soldiers of standing European armies – standing armies that Americans generally abhorred.  So averse to the concept of standing armies were the majority of Americans, the post-war recommendations of Washington and his subordinates for the establishment of a national military establishment garnered “little public support and were not adopted by the Congress.”  The public was the focus, not a professional army, and in this “the revolutionaries implicitly rejected the [Continental Army] officers’ claims that the country would owe its future survival to the army.”[9]

Not only did the public reject the Continental Army’s claim on a superior patriotic virtue in winning independence, they rejected any future standing army’s claim as the guarantor of security.  Having thrown off the yoke of tyranny in the British king and Parliament, the revolutionaries-turned-founders sought to guard against future tyranny and that notional tyrant’s use of the military against the people.  “As civil rulers,” wrote Tench Coxe in 1789, “not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”[10]

Faith in the virtue of the public as guardians of the state and themselves is apparent in the provisions written into the constitutions of the individual states regarding the right to bear arms:

1776, Virginia: 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 governed by, civil power.

1776, Pennsylvania: 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.

1780, Massachusetts: The people have a right to keep and bear arms for the common defense.  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.

1817, Mississippi: Every citizen has a right to bear arms, in defence of himself and the State.

1819, Maine: Every citizen has a right to keep and bear arms for the common defence; and this right shall never be questioned.

1820, Missouri: That the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defence of themselves and the State cannot be questioned.[11]

In this context, “bearing arms was not only a right, but it was a legal obligation.”[12]  Citizens were responsible for protecting the state against foreign threats, domestic insurgency, and federal tyranny.  In 1792, in fact, the US Congress went so far as to require “every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years and under the age of forty-five years…be enrolled in the militia.” And that “every citizen so enrolled…provide himself with a good musket or firelock, a sufficient bayonet and a belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges…”[13]

“Who are the militia? Are we not the militia?” asked Francis Corbin during the Virginia Debate on the Constitution.  Clearly we are the militia.  And just as the concept of who comprise the citizenry of the United States has evolved, expanding from white males with property to all Americans, so too we must accept that the body encompassed by the term “militia” and “the people” in the Second Amendment now includes anyone eligible to vote.

[1] Saul Cornell, “Beyond the Myth of Consensus: The Struggle to Define the Right to Bear Arms in the Early Republic,” in Beyond the Founders: New Approaches to the Political History of the Early American Republic (Chapel Hill, 2004), 267.

[2] Terry Bouton, Taming Democracy: “The People,” the Founders, and the Troubled Ending of the American Revolution, New York, Oxford University Press, 2007.

[3] Ibid, 175-176.

[4] Ibid, 261.

[5] Cornell, “Beyond the Myth of Consensus,” 253.

[6] Paul Finkelman, “’A Well Regulated Militia’: The Second Amendment in Historical Perspective,” Chicago Kent Law Review 76 (2000): 195-236.; Keith A.Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen the Militia Lately?, 15 U. DAYTON L. REV. 5 (1989); Gary Willis, “To Keep and Bear Arms,” The New York Review of Books, September 21, 1995.  Available Online: http://www.nybooks.com/articles/archives/1995/sep/21/to-keep-and-bear-arms/?pagination=false; For rebuttal of Willis’ argument, see Randy E. Barnett, “Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?”, Georgetown University Law Center, 2004.

[7] Don Higginbotham, War and Society in Revolutionary America: The Wider Dimensions of Conflict, Columbia, University of South Carolina Press, (1988): 22, 109. For more on the militia tradition, see John Shy, A People Numerous and Armed,

[8] Fred Anderson, A People’s Army: Massachusetts Soldiers and Society in the Seven Years’ War, Chapel Hill, The University of North Carolina Press, 1984, 26-27.  See also, Fred Anderson, The Crucible of War.

[9] Charles Royster, An American People at War, 332-333

[10] A Pennsylvanian (Tench Coxe), Remarks on the First Part of the Amendments to the Federal Constitution, PHILA. FED. GAZETTE, June 18, 1789

[11] Cornell, “Beyond the Myth of Consensus,” 265-266

[12] Ibid, 255.

[13] Second Congress, Section I, Chapter 33, An Act more effectually to provide for the National Defense by establishing an Uniform Militia throughout the United States, Available Online: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=394


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s