While
many defenders of private gun ownership recognize that the Second Amendment was
written to provide some sort of counterbalance against the coercive power of
the state, this argument is often left far too vague to reflect an accurate
view of this historical context surrounding the Amendment.
After
all, it is frequently pointed out that private ownership of shotguns and
semi-automatic rifles could offer only very limited resistance to the extremely
well-equipped and well-armed United States military.
It is
often, therefore, just assumed that the writers of the Second Amendment were
naïve and incapable of seeing the vast asymmetries that would develop between
military weaponry and the sort of weaponry the average person was likely to
use.
Was the plan really to just
have unorganized amateurs grab their rifles and repel the invasion of a
well-trained military force?1
The
answer is no, and we know this by looking at the wording and reasoning behind
the Second Amendment. The text, of course, reads “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.”
Gun-rights
advocates often fixate on the second half of the amendment, claiming that the
phrase about a militia is just something that provides a reasoning for the
second phrase. Many opponents of gun control even suggest that the only phrase
here of key importance is “shall not be infringed.”
The Second Amendment as a Guard
Against a Standing Army
Looking at the debates
surrounding the Second Amendment and military power at the end of the
eighteenth century, however, we find that the authors of the Second Amendment
had a more sophisticated vision of gun ownership than is often assumed.
Fearful
that a large federal military could be used to destroy the freedoms of the
states themselves, Anti-Federalists and other Americans fearful of centralized
power in the US government designed the Second Amendment accordingly. It was
designed to guarantee that the states would be free to raise and train their
own militias as a defense against federal power, and as a means of keeping a
defensive military force available to Americans while remaining outside the
direct control of the federal government.
This grew out of what was a
well-established opposition to standing armies among Americans in the late
eighteenth century. In his book Eagle and Sword: The Federalists and the Creation of the Military
Establishment in America, 1783–1802, Richard Kohn writes:
No
principle of government was more widely understood or more completely accepted
by the generation of Americans that established the United States than the
danger of a standing army in peacetime. Because a standing army represented the
ultimate in uncontrolled and controllable power, any nation that maintained
permanent forces surely risked the overthrow of legitimate government and the
introduction of tyranny and despotism.
We
can see this plainly in the speeches and writings of the Anti-Federalists like Patrick
Henry, but we also see it in the more moderate attendees of the constitutional
convention as well, such as George Mason, who “When once a standing army is
established in any country, the people lose their liberty.”
Sentiments
like Mason’s did not represent the views of oddball outliers. Rather, Kohn
notes, these were mainstream views of the danger of an unimpeded federal
military establishment.
But
how to combat the power of a federal standing army?
On this, the Americans did
not need to re-invent the wheel. After all, the idea of locally-controlled
military forces answerable to civil officials was put into place in seventeenth-century England.
The English militias had been created out of fear of a large standing army
directly answerable to the king.
Although the system had fallen into disuse in England by the time the Americans were debating the matter in the eighteenth century, the Americans were well aware of this history.
Although the system had fallen into disuse in England by the time the Americans were debating the matter in the eighteenth century, the Americans were well aware of this history.
These
ideas were further developed at the Virginia ratifying convention where Patrick
Henry mocked the idea that liberties could be preserved by simply “assembling
the people.” Without locally controlled, military might, Henry noted, federal
force could destroy the independence of the state governments. Similarly,
George Mason concluded that the “militia … is our ultimate safety. We can have
no security without it.”
As historian Leon Friedman
concludes, “the people organized in the state militias were regarded as a
counterforce against the threat that the regular army could be used as an
instrument of oppression and service in the militia was a right of the citizen
that could not be transgressed by the federal government.”2
In
light of this, it’s easier to see the key element offered by the “militia”
phrase of the Second Amendment.
Even after the adoption of
the new constitution, opposition to a powerful federal military continued.
Congress opposed not only attempts to increase the size of the professional US
army much beyond 1,000 men, but also opposed attempts to mandate any specific
training in a “federally organized militia system.” In the end, opposition to
federal control of military affairs meant training of militias was “left
entirely to the states.”3
The “Unorganized Militia” and
Private Gun Ownership
As Brion McClanahan has shown, the Second Amendment — like
the First Amendment — was never written to apply to the states themselves, but
to Congress. The states were still free to regulate the ownership of weaponry
in their own constitutions and by their own legislatures. Most state
governments, however, elected to include provisions in their own constitutions
protecting private gun ownership as an element of the state’s overall militia
strategy.
This
is understandable given the long tradition of the “unorganized militia” in
American history. While some advocates of gun control might claim that gun
ownership is guaranteed only to those engaged in active militia service, this
idea is directly opposed by the provisions in state constitutions guaranteeing
private gun ownership and a general inclusion in the militia of all able-bodied
males. This notion was recognized by policymakers even before ratification of
the federal constitution, as noted by legal historian David Yassky:
As we
have seen, in practice Founding-era militias were far from universal, but in
the Founders’ conceptual framework the militia consisted of the mass of
ordinary citizens, trained to arms and available to serve at the call of the
state. As George Mason put it: “Who are the militia? They consist now of the
whole people, except [for] a few public officers. … When the Second Congress
sought to exercise its constitutional authority to “provide for organizing,
arming and disciplining the Militia,” it directed “each and every free
able-bodied white male citizen of the respective states [except for persons
exempted under state law and certain other exempted classes] … who is … of the
age of eighteen years, and under the age of forty-five years” to enroll in the
militia of their states. Or as Patrick Henry declared at the Virginia ratifying
convention: “The great object is, that every man be armed.”4
By the close of the
nineteenth century, this sort of language would be commonplace. An 1894 collection of texts from
state constitutions shows that not fewer than 22 state constitutions5 contained language along the lines of
“the militia of the State shall consist of all able-bodied male residents of
the State, between the ages of eighteen and forty-five years.”6
To ensure a ready
availability of men used to handling firearms, these constitutional provisions
are often accompanied by state guarantees of a right to keep and bear arms
similar to the 1780 Massachusetts declaration of rights which states:
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.
Some
states specifically stipulated that the ownership of arms is for personal use.
One of the most specific of these is perhaps the Colorado Constitution (1876)
which states:
That
the right of no person to keep and bear arms in defense of his home, person and
property, or in aid of the civil power when thereto legally summoned, shall be
called in question.
But if there was left any
doubt that this might apply specifically to one’s own personal property — and
not to some general idea of “defense of homeland” — the Montana Constitution
states a person may keep arms “In defense of his own home, person and property…” [emphasis added.]
Both
Montana’s and Colorado’s texts are remarkably similar to that of Missouri’s
which states persons may “keep and bear arms in defense of his home, person and
property or in aid of the civil power…” Other similar clauses include
Arkansas’s text: “The citizens of this state shall have the right to keep and
bear arms for their common defense.” Maine’s: “Every citizen has a right to
keep and bear arms for the common defense; and this right shall never be
questioned.” And Kansas: “The people have the right to bear arms for their
defense and security; but the standing armies, in time of peace, are dangerous
to liberty, and shall not be tolerated, and the military shall be in strict
subordination to the civil power.”
Ideally,
each state would have its own “unorganized militia” of residents who could “aid
… the civil power” in case of civil unrest or invasion.
Note that the idea of the
unorganized militia nevertheless remains connected to the organized militia. There is no evidence that the
authors of the Second Amendment would have considered just any group of armed civilians to be a militia. An
element of state sanction was assumed. The unorganized militia was imagined as
a sort of potential militia, that could
be, as made clear in numerous state constitutions, called to assemble, with
arms, to “aid the civil power.”
As noted by Jeffrey Rogers Hummel, many states experimented with various measures designed to increase the training and readiness of this militia. That is, there were efforts to make the unorganized militia moderately more “organized.” Some militias even became de facto private militias functioning under state charters. Nevertheless, regardless of the exact level of readiness demanded by the state government, the idea was that each state’s general citizenry served as the “reserve” force for the state government.
As noted by Jeffrey Rogers Hummel, many states experimented with various measures designed to increase the training and readiness of this militia. That is, there were efforts to make the unorganized militia moderately more “organized.” Some militias even became de facto private militias functioning under state charters. Nevertheless, regardless of the exact level of readiness demanded by the state government, the idea was that each state’s general citizenry served as the “reserve” force for the state government.
Clearly,
this stands in contrast to the idea of today’s National Guard. According to
Yassky:
the
Founders’ did have a concept that approximates today’s National Guard — but it
was a concept they disapproved. This is the “select militia” — a specially
trained part of the citizenry. To the Founders, a select militia was little
better than an army. The Philadelphia Convention explicitly rejected a proposal
to create a “select militia” for the federal government, as did the Third
Congress. The Constitution’s proponents, moreover, repeatedly denied
Anti-Federalist charges that Congress’ power to “provide for training” the
militia would lead to creation of a select militia.
But if not a “select militia”
in today’s more technical world, then what? In Hummel’s
analysis, we find that many states attempted to deal with the problem of
gaining military expertise through state-based
conscription. Additionally, many volunteer militias promoted a pro-militia
atmosphere by providing social benefits and prestige for those who participated
in militias voluntarily. The idea, presumably, was to ensure that a large
enough percentage of the “able-bodied male population” had some sort of militia
experience so as to plausibly conclude that the unorganized militia could offer
meaningful military expertise and service. Whether or not this vision ever came
to fruition remains a matter of debate. Certainly, the common view among
establishment military historians — a biased source to be sure — is that state
militias were always inept. Even if this were the case, however, this doesn’t
prove that the militia ideal can’t be — or ought not be — revived as a check on
federal power. After all, the conditions that often provided obstacles to the
creation of reliable militias — such as the presence of an extremely rural,
widely dispersed, and undercapitalized population in many states in nineteenth
century America — no longer exist.
In spite of the anti-militia
bias among federal policymakers, the ideal of the unorganized militia persisted
even into the twentieth century. When the federal government did finally manage
to push through the creation of what today is recognizable as a National Guard
— with the Militia Act of 1903 — official explanations of the act still paid
lip service to the supposed value of an unorganized militia. Writing in
the North American Review(August 1903),
Lieutenant-Colonel James Parker provides an official
summary of the new act, endorsing the traditional view that
the
militia shall consist of every able-bodied citizen between eighteen and
forty-five, and divides the militia into two classes the organized militia or
National Guard, and the unorganized or reserve militia.
Parker
even goes so far as to suggest that the organized militia provide resources to
the unorganized militia to increase proficiency with rifles:
To
shoot well is a large part of the education of the soldier; and if the
government can arouse interest in shooting, in not only the organized but also
unorganized militia, that our male population shall be familiar with the
accurate use of the rifle, we shall have gone far towards evening up the
advantage the foreigner gains by his universal conscription.
The Decline of the System and
the End of the Second Amendment
Ironically,
though, Parker’s explanation and defense of the Militia Act of 1903 serves
largely as an unwitting epitaph and eulogy for the idea of the unorganized
militia in the US. The National Guard, as created by the Militia Act, would
spell the doom of the unorganized militia in the US, and serve to completely
undermine the Second Amendment and its defense of decentralized military power
in the US.
After 1903, the
federalization of the state militias only accelerated until, as Yassky
concludes, “Today’s National Guard is thus a far cry from what the Founders’
understood a militia to be” and the result of these changes has brought about
“the disappearance of anything the Founders would have recognized as a
militia.” Far from acting as a bulwark against abuse of federal power, today’s
National Guard is something the authors of the Second Amendment “would have
seen as little better than a standing army.”7
It is interesting that while the original
conception of the militia has been destroyed by federalization — and thus the
central rationale of the Second Amendment has been eviscerated — state
provisions encouraging private gun ownership have proliferated. When it comes
to home defense against small-time thieves and murderers, this is all to the
good. Widespread unorganized gun ownership, however, does little to re-create
the idea of a locally-controlled militia that would be used to keep the size
and power of federal standing armies in check and to decentralize political
power away from the federal government. Yes, private gun ownership is
undeniably moderately inconvenient for governments at all levels, but compared
to the militia concept protected and fostered by the Second Amendment, these
privately-armed citizens can only offer relatively token resistance.
Moreover, the idea that a large
standing army ought to be vehemently resisted and viewed with suspicion — in
favor of both an organized and unorganized militia — is long gone. Indeed, many
Americans who fancy themselves defenders of the Second Amendment also
enthusiastically support a large federal military establishment. George Mason
and Patrick Henry would have found such an attitude incomprehensible.
—
1. Thanks to Hollywood and images of the
Revolution from popular culture, many Americans suppose that the Revolution was
fought by individuals fighting outside organized units and with their own arms
— and even without pay. This, however, is not an accurate portrayal of military
affairs in the colonies before and during the Revolution. In his essay on
militias “The American Militia and the Origin of Conscription: A
Reassessment,” Jeffrey Rogers Hummel provides a brief bibliography
of works discussing the central role of colonial militias during the
Revolutionary War. Militias had been set up in the colonies as soon as the
English arrived in North America, and a tradition of militias was well
established by the late 18th century. Indeed, by the time of the Revolution,
many colonial militias offered salaries and weaponry provided for militia
service. In Chapter 13 of his book The Americans: The Colonial
Experience, Daniel Boorstin discusses how colonial militias even
competed with each other to attract more recruits during the war. Boorstin also
notes that militias, while significantly more relaxed in discipline than the
British army, nevertheless existed under the authority of the colonial
governors and were typical military units in that members were organized
according to rank and functioned under a chain of command — however losely
implemented. The history of the Revolution was very much a history of colonial
militia units, and the later authors of the Constitution and the Second
Amendment were well aware of this.
2. See Leon Friedman, “Conscription and the Constitution:
The Original Understanding,” 67Mich. L. Rev. 1493 (1969)
3. Although the US Constitution allowed
for the federalization of these state militias, state governments could — and
did — refused to comply with federal demands under various circumstances. As
noted in “Decentralize the Military: Why We Need Independent
Militias,” both Connecticut, during the War of 1812, and Kentucky,
during the Civil War, offer examples.
4. See David Yassky, The Second Amendment: Structure, History, and
Constitutional Change, 99 Mich. L. Rev. 588 (2000)
5.Texts declaring all able-bodied adults as
members of the militia were, in the late nineteenth century, found in in
Alabama, Arkansas, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky,
Michigan, Mississippi, Missouri, Montana, North Carolina, Ohio, Oregon,
Pennsylvania, South Dakota, Virginia, Washington, and Wyoming.
6. As useful compilation of these texts
can be found in “The Convention Manual of Procedure,
Forms and Rules for the Regulation of Business in the Sixth New York State
Constitutional Convention, 1894: v. 1-2 American constitutions“.
7. Part of the reason for the demise of
the militia system was the fact that the courts have never defended it. Yassky
adds: “The principle of military decentralization – the avoidance of standing
armies – was a cornerstone of the Founders’ political theory; yet neither the
courts’ doctrine nor the revisionist alternative [i.e., modern anti-gun-control
interpretations of the Second Amendment] respect this principle.”
Ryan W.
McMaken is the editor of Mises Daily and The Austrian. Send him mail.